fendant. I have heard that he has several houses there, inside the stockade. I don't know whether he has or not. I don't know whether this particular house alleged in the indictment is one of them or not. I have an opinion in regard to this particular charge. I would enter into the trial of this case without any opinion whatever in regard to this particular charge of keeping a bawdyhouse within a certain house within that district."

James E. Cahill testified:

"I heard the statement of the case. I have heard the facts about this case. I know who the defendant is by sight. I have an opinion at the present time as to the guilt or innocence of the defendant. It is a decided opinion, which would require evidence to remove. It would require considerable evidence to remove the opinion that I now have, and I do not think I could lay it aside and have no weight in considering the testimony.

"Mr. Murane: We submit a challenge for actual bias.

"Mr. Hoyt: Challenge resisted.

"Q. (by Mr. Hoyt) Is your opinion based upon some knowledge which you have? A. No, just a general impression. Q. An impression, or a prejudice? A. No, an impression. Q. You have no knowledge as to the guilt or innocence under this charge? A. None whatever. * * **

"(Continuing) That is a strong opinion which I possess and which I will not be able to rid myself of.

"Mr. Hoyt. We do not resist the challenge.

"Q. (by the Court) Would you mix up with the evidence in the case, if you were sworn to try the case, would you mix up any knowledge that you might have with the evidence and base your verdict partly on that? A. Oh, no; I would not allow my prejudice to guide me to a verdict. Q. You do not know the defendant? Have you any prejudice against the United States? A. None whatever. Q. Do you think you could enter the jury box and render a fair, just, and impartial verdict? You would not convict anybody, would you, unless the evidence satisfied your mind beyond a reasonable doubt? A. I think, on the contrary, I would be more lenient after forming an opinion."

The statutes of Alaska bearing upon the qualifications of jurors are that a challenge for cause exists:

"Sec. 125. *

Second. For the existence of a state of mind on the part of a juror in reference to the action or to either party which satisfies the trier, in the exercise of a sound discretion, that he can not try the issue impartially and without prejudice to the substantial rights of the party challenging, and which is known in this code as actual bias.

"Sec. 127. Challenge for Actual Bias. That a challenge for actual bias may be taken for the cause mentioned in the second subdivision of section one hundred and twenty-five. But on the trial of such challenge, although it should appear that the juror challenged has formed or expressed an opinion upon the merits of the cause from what he may have heard or read, such opinion shall not of itself be sufficient to sustain the challenge, but the court must be satisfied, from all the circumstances, that the juror can not disregard such opinion and try the issue impartially.”

It is not to be disputed that, unless manifest error has occurred in ruling upon the qualifications of jurors, the action of a trial court should not be disturbed. The position of the trial judge necessarily enables him to try the fitness of a juror to much better advantage than an appellate court can. Thiede v. Utah, 159 U. S. 510, 16 Sup. Ct. 62, 40 L. Ed. 237. It often happens that the very manner in which the answers are given by a juror greatly aids the trial court in judging fairly of the state of the juror's mind. It sometimes occurs that a juror, particularly if he is a man who is unfamiliar with court procedure, or one not well versed in the English language, or one who is uneducated, does not at once fully understand the significance of

83 C.C.A.-41

the questions put to him by counsel as to any opinions or impressions he may have bearing upon the case. Sometimes it is only by repetition and perhaps after some explanation that the juror appreciates the purpose of the proceeding and slowly discloses the actual state of his mind. Such a juror may be perfectly honest, not trying to keep back anything; he may be anxious to be wholly truthful; yet upon the bare printed record there appear to be inconsistencies or evasions in his answers. We believe generally that in such instances the discretion of the trial court, presumably wisely exercised, should control, and appellate courts ought to refuse to interfere. But, on the other hand, in the interpretation of statutes concerning challenges to jurors for cause, it is of vital importance that the constitutional right to an impartial jury secured to a defendant by the sixth amendment be most carefully guarded, no matter how unimportant the case may be wherein it is seriously urged that this right has been denied. In Williams v. United States, 93 Fed. 396, 25 C. C. A. 369, decided by this court. there was no difference of opinion upon these general principles, but the judges disagreed upon whether or not the action of the trial court presented a case of manifest error, the majority holding it did. In Dolan v. United States, 116 Fed. 578,1 this court again considered a ruling by a lower court upon challenges to jurors for cause, and again the judges disagreed, not upon the principle involved, but upon the extent of its application to the particular facts and evidence presented by the record. In neither of the cases, just cited, however, did it appear that the jurors challenged answered as did the two last whose examinations are given above. The examination of Juror Frantzen certainly showed that he went into the trial of the case with a fixed opinion that the defendant was guilty. He frankly stated that he had such an opinion, though he thought he could lay it aside if the evidence showed the defendant was not guilty. The juror would do his best to disregard the opinion, but he felt he could not lay it aside entirely. He had heard that this defendant had several houses inside the stockade where houses of prostitution were, but did not know whether he had or not. It is true that in concluding his testimony he said he would enter upon the trial without any opinion whatever in regard to this particular charge. But in the light of the specific prior statements made by the juror, his own judgment that he would not be a fair juror appears to us to have been the only proper conclusion that was deducible from what he said, and we think he ought to have been excused upon the challenge. Juror Cahill was even more unfit for service. He knew the facts and had an opinion, and felt that he could not lay his opinion aside. He said later that he had no knowledge of the guilt or innocence of defendant under the charge, but he had "an impression," a "strong opinion," which he would not be able to rid himself of. The district attorney did not resist the defendant's challenge to this juror, but the court carried the examination farther and elicited from the juror statements that he would not allow his prejudice to guide him to a verdict, that he had no prejudice against the United States (he was not asked if he had any against the defendant), and that he would be more lenient as a juror after 1 54 C. C. A. 34.

forming an opinion, and would not convict unless satisfied of guilt beyond a reasonable doubt.

We find it impossible to avoid the conclusion that a jury made in part of men whose minds are in such a condition is not impartial. It is possible, of course, that such a jury will be perfectly fair; but the standards by which courts must test impartiality are necessarily those derived from common experiences with practical human nature. So if men start out in a case with fixed opinions of guilt, and fear they cannot disregard them, their mental attitudes are well characterized by the language used by Juror Frantzen when he said he thought he could lay his opinion aside "if the evidence showed that the defendant was not guilty." The burden of proof as to guilt is too apt to be lost sight of before such a jury, and the defendant at the outset, and before a word of evidence is heard, finds himself forced into a trial with the jury strongly against him, and therefore without that full measure of protection which the presumption of innocence should afford him. The question is, therefore, of such a substantial nature that it has received our most earnest consideration in an endeavor to uphold the exercise of the discretionary power of the trial court without infringing upon the constitutional provision which surrounds the exercise of that power, and our conclusion is that there was an abuse of discretion in overruling defendant's challenges, and that because of this error the judgment must be reversed.

If, upon a new trial of the case, the prosecution again offers evidence to show that plaintiff in error was the owner of the property kept and used for purposes of prostitution, as a circumstance tending to rebut this evidence plaintiff in error should be allowed to introduce deeds tending to show legal title in another. Such testimony is proper, although it is not necessary for the government to establish that defendant was the owner of the house, nor is it necessary to show by positive testimony that he was the keeper. It may be found that he was the keeper by his acts and admissions, or by proof that he acted and held himself out as such keeper. If a man leases his house to a woman to be kept as a bawdyhouse for purposes of prostitution, and it is kept for such purposes, with his knowledge, he is guilty as keeper; and by the same principle the agent of an owner who rents a house knowing that it is to be used as a house of prostitution, and that it is so used, may be found guilty as a keeper. 14 Cyc. 489; Kessler v. State, 46 S. E. 408, 119 Ga. 301. We advise, too, that upon a new trial the court should adopt the suggestions as to what constitutes a reasonable doubt made by this court in its opinion remanding the case of Owens v. United States, 130 Fed. 279, 64 C. C. A. 525.

The judgment is reversed, and the cause remanded for a new trial.

(155 Fed. 48.)

HORNSTEIN v. UNITED STATES.

(Circuit Court of Appeals, Ninth Circuit. May 20, 1907.)

No. 1,403.

CRIMINAL LAW-JURISDICTION OF OFFENSE-OFFENSES AGAINST UNITED STATES AND MUNICIPALITY.

An ordinance prohibiting gambling and prescribing punishment for the same, enacted by a town of Alaska under authority conferred by Act April 28, 1904, c. 1778, 33 Stat. 529, does not deprive the district courts of jurisdiction of a prosecution for gambling within the limits of the town, instituted under the Penal Code of the district, which makes the same a criminal offense.

[Ed. Note. For cases in point, see Cent. Dig. vol. 14, Criminal Law, $ 176.]

In Error to the District Court of the United States for the Second Division of the District of Alaska.

Albert H. Elliot and George D. Schofield, for plaintiff in error. Henry M. Hoyt, U. S. Atty.

Before GILBERT and ROSS, Circuit Judges, and HUNT, District Judge.

HUNT, District Judge. Charles Hornstein, plaintiff in error, was convicted of the crime of gambling after trial upon information filed in the United States Commissioner's Court for the District of Alaska. To the information Hornstein filed a demurrer and plea in abatement, raising the point that the United States Commissioner had no jurisdiction over an offense committed within the incorporated limits of the town of Nome, District of Alaska, where the alleged crime was committed. The plea in abatement and demurrer were overruled, trial was then had before a jury, and a verdict of guilty was rendered. The plaintiff in error moved for a new trial, which motion was denied, and thereupon he was fined. From the judgment of conviction he sued out a writ of error to this court.

The statute of Alaska under which the information was filed reads as follows:

"That each and every person who shall deal, play, or carry on, open or cause to be opened, or who shall conduct, either as owner, proprietor or employee whether for hire or not, any game of faro, monte, roulette, rouge et noir, lansquenet, rondo, vingt-un, twenty-one, poker, draw poker, bragg, bluff. thaw, craps, or any banking or other device whether the game shall be played for money, checks, credit, or any other representative of value, shall be guilty of a misdemeanor."

Congress passed an act, approved April 28, 1904, 33 Stat. 529, c. 1778, entitled "An act to amend and codify the laws, relating to municipal corporations, in the District of Alaska." Under this act, the town of Nome, a municipal corporation, passed an ordinance on August 1, 1904, making it a misdemeanor to gamble. This ordinance was in effect at the time of the filing of the information against the plaintiff in

error.

The principal contention of the plaintiff in error is that the act to amend and codify the laws relating to municipal corporations in the

District of Alaska, approved April 28, 1904, repealed the act of Congress of March 3, 1899, 30 Stat. 1253, c. 429, entitled "An act to define and punish crimes in the District of Alaska," in so far as the said act of March 3, 1899, related to the offense of gambling, where said offense is committed within the limits of incorporated towns, and where such incorporated towns have enacted ordinances defining the offense of gambling, and where such ordinances are in force, as in the case of the city of Nome. The legal question involved is the same as that presented and decided in the case of Mose Rosencranz v. United States, 155 Fed. 38,' and the conclusion there reached, that Congress under the act of April 28, 1904, c. 1778, 33 Stat. 529, did not intend to yield its authority over the subjects of gambling and other offenses. enumerated, must control here. The argument that by the act of 1904 Congress intended to increase greatly the powers of town councils is sound until it is invoked to sustain the conclusion that the power conferred upon the municipality is inconsistent with the reservation of power by the United States. It then fails, for as we have shown in the Rosencranz Case, there is no repugnancy between the two acts, and in the absence of expressed or clearly implied terms that the jurisdiction should be exclusively in the municipalities we cannot find a surrender of the jurisdiction of the United States. Not finding such surrender, we cannot infer it merely upon the ground of a possible double prosecution. Cross v. North Carolina, 132 U. S. 131, 10 Sup. Ct. 47, 33 L. Ed. 287; Bishop on Statutory Crimes, § 24; Fox v. Ohio, 5 How. 410, 12 L. Ed. 213.

Plaintiff in error also contends that the court erred in refusing to instruct the jury in writing when requested by the defendant. Section 137 of the Penal Code of Alaska provides:

Subd. 5. "When the evidence is concluded, either party may request instructions to the jury on points of law, which shall be given or refused by the court; which instructions shall be reduced to writing if either party request it."

Subd. 7. "The court, after the argument is concluded, shall immediately, and before proceeding with other business, charge the jury; which charge, or any charge, given after the conclusion of the argument, shall be reduced to writing by the court, if either party request it before the argument of the trial is commenced; such charge or charges, or any other charge or instructions provided for in this section, when so written and given, shall in no case be orally qualified, modified, or in any manner explained to the jury by the court; and all written charges and instructions shall be taken by the jury in their retirement, and returned with their verdict into court, and shall remain on file with papers of the case."

The bill of exceptions does not show that the plaintiff in error requested the court to charge the jury in writing; but sets forth that the counsel for the plaintiff in error, just before the government rested its case, requested the court "in charging the jury to charge the jury according to defendant's written requests numbered 1 and 2." The purport of counsel's request and of his exception was therefore, not that the court should charge in the form of a written instruction, but that the substance of the written requests should be stated as the law to the jury, without regard to any particular form. Argument of the case was waived by defendant. The court then charged the jury orally. After the judge had delivered his charge, counsel for the defendant

1 83 C. C. A. 634.