THIS case came up from the circuit court of the United States for the district of Kentucky, on a certificate of division in opinion between the judges thereof. The point of difference was thus stated.
The opinion of the court was delivered by: Mr. Justice Nelson delivered the opinion of the court.
Statement of point of disagreement.
The statement of the point upon which the disagreement of the judges happened having been made, is in these words:––
In the progress of the trial of this cause, and, after the jury had been in part selected, and other jurors were presented to the prisoner, he peremptorily challenged one of them, when the question arose, whether the defendant was entitled to any peremptory challenges; on which question the judges were divided in opinion. Whereupon, the point of division, and the grounds thereof, are ordered to be certified to the supreme court of the United States, for its opinion and direction to this court on the case certified.
And the cause was continued, to await the instructions of the suprme court.
It was submitted upon printed arguments by Mr. Cushing, (attorney-general,) for the United States, and by Mr. Underwood, for the defendant.
This case comes up on a certificate of a division of opinion between the judges of the circuit court of the United States for the district of Kentucky.
The prisoner was indicted for a misdemeanor in wrongfully deserting the mails of the United States, before delivering them to the proper officer or agent, he being a mail carrier at the time, and, as such, having the mails in charge. (§ 21 of act of cong., 3d March, 1825; 4 Stats. at Large, 107.)
A question arose, in impanelling the jury, whether the prisoner was entitled to a peremptory challenge of one or more jurors, upon which the judges were divided in opinion.
The act of congress passed 20th July, 1840, 5 Stats. at Large, 394, provides that jurors, to serve in the courts of the United States, in each State, shall have the like qualifications, and be entitled to the like exemptions, as jurors of the highest court of law of such State now have and are entitled to, and shall hereafter from time to time have and be entitled to; and shall be designated by ballot, lot, or otherwise, according to the mode of forming such juries now practised, and hereafter to be practised therein, so far as such mode may be practicable by the courts of the United States, or the officers thereof. 'And, for this purpose, the said courts shall have power to make all necessary rules and regulations for conforming the designation, and impanelling of juries, in substance, to the laws and usages now in force in such State; and, further, shall have power by rule or order, from time to time, to conform the same to any change in these respects, which may be hereafter adopted by the legislatures of the respective States for the state courts.'
The court is of opinion that the power conferred upon the federal courts to adopt 'rules and regulations for conforming the designation and impanelling of juries to the laws and usages in force at the time in the State,' enables them to adopt the laws and usages of the State in respect to the challenges of jurors, whether peremptory or for cause, and in cases both civil and criminal, with the exception, in criminal cases, of treason and other crimes, of which the punishment is declared to be death.
The § 30 of the crimes act of 1790, 1 Stats. at Large, 119, provides, that if persons indicted for treason against the United States shall challenge peremptorily above the number of thirty-five of the jury, or if persons indicted for any other of the offences before set forth, for which the punishment is declared to be death, shall challenge peremptorily above the number of twenty persons of the jury, the ...