(Circuit Court, S. D. Ohio. March 7,1881.)
FEDERAL Junms-TALEBMEN-AcT OF -CONSTRUCTION.
.JUNE 30, 1879-REV. ST. f 804
The act of congress of June 30, 1879, prescribing the mode in which juries shall be drawn in the United States courts, did not, either expressly or impliedly, repeal section 804 of the RcvisedStatutes; and therefore when, from challpuges or otherwise, there is Dot a petit jury to determine any cause, the court may direct the marshal to fill the panel from the bystimders.
, Motion for New Trial. The defendant was indicted for violation of the internal re:venue law. When the case was called for trial, and a jury was being empanelled, the defendant, in the exercise of his right of challenge, chaJlenged from the jury some of the jurors who had been regularly drawn and summoned as jurors for the term. To fill the vacancies occasioned by these chal. lenges the court directed the marshal to fill the panel by calling persons from the bystanders. The defendant objected to this, and demanded that the panel should be filled by persons whose names should be drawn by the clerk and jury commissioner, as provided in the second section of the act of June 30, 1879, (21 St. at Large, 43.) But the court ruled this objection,' and the panel was filled by persons called by the marshal from the bystanders, and the trial progressed and the jury returned a verdict of guilty against the defendant. Thereupon the defendant moved the court for a new trial, assigning as a reason therefor the error of the court in causing the panel to be filled from the bystanders. T. C. Campbell and H. B. Banning, for motion. Channing Richards, Dist. Att'y, contra. SWING, D. J. The language of section 2 of the act of June 30, 1879, in regard to the manner in which juries shall be selected, is: "And that all such jurors, grand and petit, including those summoned during the session of the court, shall be
"" Reported by JHessrs. Florien Giauque and J. C. Harper, of the Cincinuati bar.
UNITED STATES V. ROSE.
publicly drawn from a box containing at the time of each drawing the names of not less than 300 persons possessing the qualifications prescribed in section 800 of the Revised Statutes, which names shall have been placed therein by the clerk of such court, and a commissioner to be appointed by the judge thereof, which commissioner shall be a citizen of good standing, residing in the district in which such court is held, and a well-known member of the principal political party in the district in which the court is held, opposing that to which the clerk may belong; the clerk and said commis· sioner each to place one name in said box alternately, without reference to party affiliations, until the whole nmnberreqtiired shall be placed therein." This act in terms repeals sections 800, 801, 820, and 821 of the Revised Statutes of the United States. Section 804 of the Revised Statutes of the United States provides: "When from challengesor otherwise there is not a petit jury to determine any civil or crihJ.inal cause, the mar· shal or his deputy shall, by order of the court in which such defect of jurors happens, return jurymen from the bystanders sufficient to complete the panel." This section is not repealed in terms by the act of June 30, 1879, nor do we think it is repealed by implication. The language of the latter law is that "all such jurors, grand and petit, including those summoned during the session of the court, shall be publicly, drawn from a box," etc. The calling of jurymen from the bystanders sufficient to complete a panel, under the order of the court, is not a summoning of jurors in the sensein which the term "summoned" is used in the act of June 30, 1879. They cannot, therefore, be said to be in conflict with each other. Besides, if such were the construction, the inconvenience and delays to the court in the transaction of business would be incalculable. The person whose name may be drawn from the box by the clerk and jury commissioner may reside 150 miles from the place where we are holding court. This would involve a delay for a time suffi-· cient to enable the marshal to summon such person' and toenable him to come to the place where the court is held. It.
oertainly was not in oontemplation of congress that a con. struction working such inconvenience should be given to the law. We think the language of the act of June 30, 1879, and, particularly so when taken in oonnection with section 804 of the Revised Statutes, will not authorize the construction olaimed for it by defendant's oounsel, and that, wherever by reason of challenge there is.not a petit jury, it is within the province of the court to direot the marshal to complete the panel by oalling a sufficient number of jurymen from the bystanders. . The motion for new trial will be overruled.
HElDRITTEB 'V.·ELIZABETH OIL-CLOTH CO.
(Circuit Court, D. New Jer8ey. March 5, 1881.)
FORFEITURE-PROPERTY USED AS A DI8TILLERY.
Premises occupied and used as a distillery are liable to forfeiture for the violation of sections 7 and 19 of the act of July 20, 1868, (15 St. 127, 132,) in relation to distillers' bonds and books of account, without regard to the culpability of the owner of the property.
SAME-DECREE OF CONDEMNATION.
A decree of cQndemnation under such forfeiture relates back to the time when the acts were committed which incurred the forfeiture.
3. SAME-MECHANIC'S LIEN.
A mechanic's lien cannot be enforced in a state court, where the premises have been seiZed by the marshal under such forfeiture proceedings before the clailIrhas been filed.-[ED.
In Ejectment. Edward A. Day, (W. H. Corbin, with him,) for plaintiff. W. R. Wilson, (Brow.n & Williamson, with him,) for defendant. ' NIXON, D. J. This is an action of ejectment brought to recover the possession of eight lots of land in the city of Elizabeth and state of New Jersey. The parties having for. mally waived a, jury, the case ha,sbeen tried before the court.