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'the Jaw to be reJrtstel'ed electors, etc., the fatitthat'one of the grand'jurors W,'as i,llegallY ,'registered,1i1 no groulld,,'for, qu,ashing , anindic.tment,bhHs SUCQ a defect only alS iil St.U. S.i 1025, no ,shall by reason of an,. defebt m matter of form which shall bot tencho the defendant.,
AtI.ilw. Plea in abatemeIit to indictment. ;, E. 'K.,F08ter,: J: E. ,Hart71idg6, and Coopar" for ,defendant. . J.N.StriJpling, U. S. Atty. " SWAl1n, J. a, plea in abatement to, the indictment herein, alleges that it shoQld be abated and quashed upon the ground, in substance, that William Pittman, one, of the grand jurors who presented said indictment, is not, and was not he was impaneled as a member of the ,grand jury, a duly-registered elector of the county of Duval, his placeiofresidence. , The plea admjts that, his name appears upon: the registration list ot puval county; but it is contended that it is there illegally, in this:·that it was placed there on the 29th day of September, 1887, and by an officer not entitled to register,and therefore he is not a legally qualified juror. To this plea the government has interposed a demurrer, and alleges that the plea does not state facts which in point of lawl!QoW' that tile juror in question incompetent qualified. Seotion 800 :of the Revised Statutes declares that "jurors to serve in the. c.aurts of the United States, in each state, respectively, shall have *. * ,.. as jurors of the highest court oflaw in Sll$ state ,* * *,t the time." Act Aug. 1, 1868, Laws Fla., provid8$- that "all persons who are qualified electors of this state, shall be liable,to be drawn as juoo,rs, except as hereinafter provided," etc. j and Act 'June 7, 1887, § 9, prOVides that qualified electol'B can register only betweelicertain dates inea:ch year in which there shall be e!eqtioti. The grand juror William Pittman did not register in such a year. Is he a competent grand juror, or must the indictment against the prisoner, J. W. EWali, be quashed for this reason? In the case of U. S. v. Benson, decided by FIELD, circuit justice, SAWYER, circuit and HOFFMAN, district jUdge; in the district of California, reported in SlFed. Rep. 896, the facts upon which the decision was rendered are veryshnilar to those in this mise. In that case the plea in abatement set. up that "the grand jury which found theiudictment was and inoompetent body, having no authority or' jurisdiction to And or pre!leutit,or to find or present any indictment, for the reasons that some of the'persons who compoaedthe jury' .,.. ,.. * were not at the time tax-payers in California, nor were they assessed for taxes on anyp1'operty on the; laatassessIUent roll of the countjes, from which they were, respectively summoned." Thedefendanta,iQ :that case coQtended thattheiu..
452
FEDERAL REPORTER,:
vol.. 40.
dictment was illegal and void, and should be abated and quashed. To this plea the United States demurred. In; the examination of that quesofCivilPropequre oithe state of Califomia, tion it a.ppeared that § 198, declares "that 8. person is compefentto act as juror if he bea citizen of the ,UIlitEld States, an eiectoi.'of the county, * * * and a resiqent of the township at least three months before being selected and retumed; 8econd, in possession of his natural faculties, and not de,of oithe language in which crepit; the proceedings of the courts are had; fourth, assessed, on the last assessment roll of his county, on property belonging to him. " And section 199 of thesatne'Code adds person is,'npt competent to act asa jurorFirst, who does not possess the qualifications prescribed by the preceding section; 8econd, who has been convicted of a felony or misdemeanor inthat case the court says that" the volving moral turpitude." In requisites of every juror are the possession of his natural faculties, and sufficient knowledgeofthe language in which the proceedings before him are had to obtain a clear understanding of what is done and said," and that "the provisionEi of the statute passed to bring offenders against the laws to trial are not to be so construed as to defeat their purare the means designed. not pose. The various proceedhigs merely to protect the accused, but also to protect the public, and are to be enforced; on the one hand,so as to secure to the accused a full and fltit trial, and, on the other Mnd, so as not to prevent the punishment Of criine." The last two paragraphs are as follows: . "In this case the objections to some of the grand jurors, that their names were not among the list Of tax-payers 011 the last assessment roll of their reo spective counties, ill technicaUmly. There is no aUega,tion in ,the plea that the jU19rs were llotin all respects; as to ability and Imowledge,fully qualified fprtbe duties imposed upon them, ,or that the defendants wel'6 in /lny respect preJl,Idiced by .ab8ence of tbeirnl\mes from ,the assessment roll. In these (!/rcumstances the, objection IDq.st fall under the general, rule of the that omissions which do impair any substantial right, or prejudice the defense. of the ae,c Il sed must be disregarded; unless otherwise required by positive statute.· , ijection 1025, ll.ev. St., declaresth\\t 'no indictment found presented by,; a"grand jllff,; distri\)t or circuit or other court of the shall; be deemed,insutficient, norsb,all the trial. judgment, or othe,f proceeding be ilffected, by reason of any defect or imperfecti(.,u hl ll\8tter of form, only, whi<:h $h.all not tend to th", pi'ejudiceof the
ant.' '
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":In U.8. V. Tuska It was held by Judge BLATOHFORD, then district juuge, now a justice of the supreme, coutt, that, wbere, there is nQ averment in a abatement of injury or prejudice to the defendant, irregularities in among othtjr of some of the tqefinding of. a,n,ind),ctment, grand not possessing proper pl'opertyqualil:ications, became matiers of, mere form,. to be disregarl;lt'd under the above statute. 14 Blatchf. 5. Without acc'eptingthis conclusioh In full, the spirit which it expresses undOUbtedly governs the action of ,the federal courts; that ,omissions or defects tnsuch cases which ,do not prejudice the accused M&ILnot/l.yail to set aside indictment or other .. ' ,. ,The demurrerto the plea. in tllanmse was Busw.ined, and the 'defend. rim ordered· to plead t() thEl'indi(}bnent. I have 'qboted thusextensiYely
UNITxn STATES .,. EWAN.
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458
from the above decision, both on account of the high authority of the court that delivered it, and thealmost exact'sill1iIarity of the facts involved. In that case the grand jurors were not on the last assessment roll. In this case a grand jnror was on the registration list; but it is alleged his name was not there in strict accordance with the law regulating the same. There is no allegation in the plea in this case, nor does the argument of counsel intimate in the most remote manner, that the grand juror Pittman.was not in his natural faculties, or possessed of sufficient edge of the langnage to obtain a clear understanding of all that was done or said, or that he was not a man of approved integrity, fair character, sound judgment, and intelligence. It was not denied that he was a citand his name was on a registry izen in every way entitled to list; the allegation simply being that it was not there legally. Surely, the court can appropriately a lopt the language of the California case, that the "objection is techni( al Qnly." .But counsel for .the prisoner contended that the reason why the California case was so decided was owing to the existence of section 995 of the Penal Code of that state, that provides that an indictment may be set aside on motion for certain reasons, among which there was no mention of not having been on the assessment roll, as mentioned in sectio11 198 of the Civil Code. But in the state of Florida, by the actof criminal procedure of February 2,1861, it is provided on what grounds only an indictment shall be quashed, and in that act there is no mention of an unregistered elector,-of his not being registered at the proper time. So that, if we read the two acts together in Florida, as was done in California, and as 'We must do to get the proper meaning of the law as it exists, it will be seen that the same conclusion must follow in this case as was arrived at in that. While this part of the criminal procedure act of Florida may not have been so construed by some of the courts of this state, the decision of the federal court must be the gUide in this case. The law of California provides that a person is not com": petent to act as a juror whoBe name is not on the last assessment roll of: his county. The law of Florida :provides that a person is not a compe:tent juror who is not registered between certain dates in a certain year. 'Who can point out the material difference between these two provisions? And, as it is evident the objection made to the grand juror does not im;' pair any substantial right, or prejudice the defense, of the accused in any manner, it must fall under the provisions of section 1025, Rev. St. j mentioned above.· As this disposes of the matter without reference to the question of the legality of the registration, but upon what the COtlrt deems a broader and more comprehensive view I and one that must carry with it the force of its own merit, it will not be necessary to consider the other points that were urged by counsel on both sides at great length. The demurrer to the plea is sustained, and the defendant must plead to the indictment; and it is so ordered.· . .
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. ' .' "'"Lemon'Ginger" and "E'mpireTonic:Bltters" are sold by the bottle as medIcInal
:, preDaration" iliond are belieVlldto . curati \16 , properties. They .consist. of ,about one-th,ird alcohOl, .and the reSIdue,of distilled water extractllfrom herbs, 'etc.;ahdWe quantity of alcohol· 11' biOt greater than is necessary to extract and re:, tain thehel'bs, and i$less than iSicon,tained in ures.. they are medici.nal preparations, and dealers in them are not ,'liqu'or dealers; wlthbl themeaning'of Rev. St. U. S. § 82!4, deflnlnga liquor dealer as oDe;w11o lieU. "distilled spirits orwIQell," though they areintoxioatingl if used lmmoderl!otely.· r," '
,rJqhdrlJ,i{vithout License. George J),.ReynOlrM, Dist. ,. ,, « Ellia, .for defendants. . , : In these to bel Aetermined is whether "Lemon Qingerj" by the Collins Bros. persons Drug Compwy, and" Empire Tonic Bitters," prepared by the Donell liquor dealers, within the meaning of o( the act of Fal;>rual!y8, 1875, amendatory of the internal :J,:evenue laws·. This,. of COllrse, .,involvesthe fllrtherqllestion whether referred· to are "dist-il1ed spirits or wines," as section the com St. U. S., df£inesa retail liquor dealer to be a person who 3244, sellsj"for.eign or domestic distilled spirits or wines in less quantities than five :gallons.!' From the testimony in the case, it appears that "Lemon patentedas,a ,11se(ul mec;iicina-lpreparation, and that about oqf30-t;1;J.ir4 part of the weight, consists of dilute alcohol. water and lemon juice, mixed with extracts from The and . The.percentage (jf alcohol by weight in the six comPOUPQ knQwn as "Empire Tonic Bitters 'I is a trifle less than one-third, and the residue of weight is made up of distilled water and extracts froIp ,medicinal barks, leaves, roots, ber.ries, etc. 'I.'he two compounds,!' ,Lemon Ginger" and "Empire Tonic Bitters," do not differ sufficientlyjp.·their composition Qr effects to justify any distinction between in whether they o:ught to be.classifiedas medicinal prepSI)8tigp!,!,qr;as distilled liquQr!!. It is obvious, that either. preparation to intoxication, if that is the sole test to contains , -from tlle testimony that both preparations are put be IIp, as medicinal preparations, and that each possesses, or at leal:it is,believedJo. poss.ess, ourative prop-erties, when used for certain disorders, and in the manner directed by the manufacturers. It further appears with respect to one of the preparations (and I presume that the same may be said of the other) that the quantity of alcohol employed is not greater than is necessary to ex-