Lewis v. United States (146 U.S. 370)/Opinion of the Court
This was a writ of error sued out to review a judgment of the circuit court of the United States for the western district of Arkansas, imposing a sentence of death upon Alexander Lewis, plaintiff in error, for the murder of one Benjamin C. Tarver, at the Cherokee Nation, in the Indian country.

It appears by the record that on the trial of the case, and after the accused had pleaded not guilty to the indictment, the court disrected two lists of 37 qualified jurymen to be made out by the clerk, one to be given to the district attorney, and one to the counsel for the defendant; and that the court further directed each side to proceed with its challenges independent of the other, and without knowledge on the part of either as to what challenges had been made by the other.

It further appears by the record that to this method of proceeding in that regard the defendant at the time excepted, but was required to proceed to make his challenges; that he challenged 20 persons from the list of 37 persons from which he made his challenges, but in doing so he challenged 3 jurors who were also challenged by the attorney for the government.

It further appears that the government, by its district attorney, challenged from the list of 37 persons 5 persons, 3 of whom were the same persons challenged by the defendant, and that this fact was made to appear from the lists of jurors used by the government in making its challenges and the defendant in making his challenges.

To the happening of the fact that both parties challenged the same three jurors the defendant at the time objected, but the court overruled the objection, and directed the jury to be called from the said two lists impaneled and sworn, to which the defendant at the time excepted.

The assignments of error ask us to consider the validity of the method of exercising his rights of challenge, imposed upon the defendant by the order of the court, and also the propriety of the instruction given by the court to the jury on the subject of the defense of an alibi, by giving prominence to the cautionary rules by which they should weigh this class of testimony, and particularly in saying to the jury that it was a defense often resorted to, and often attempted to be sustained and made effective by fraud, subornation, and perjury.

A leading principle that pervades the entire law of criminal procedure is that, after indictment found, nothing shall be done in the absence of the prisoner. While this rule has at times, and in the cases of misdemeanors, been somewhat relaxed, yet in felonies it is not in the power of the prisoner, either by himself or his counsel, to waive the right to be personally present during the trial. 'It would be contrary to the dictates of humanity to let him waive the advantage which a view of his sad plight might give him by inclining the hearts of the jurors to listen to his defense with indulgence.' Prine v. Com., 18 Pa. St. 103, per Gilbson, C. J. And it appears to be well settled that, where the personal presence is necessary in point of law, the record must show the fact. Thus in a Virginia case (Hooker v. Com., 13 Grat. 763) the court observed that the record showed that on two occasions during the trial the prisoner appeared by attorney, and that there was nothing to show that he was personally present in court on either day, and added: 'This is probably the result of mere inadvertence in making up the record, yet this court must look only to the record as it is. * * * It is the right of any one, when prosecuted on a capital or criminal charge, to be confronted with the accusers and witnesses; and it is within the scope of this right that he be present, not only when the jury are hearing his case, but at any subsequent stage when anything may be done in the prosecution by which he is to be affected.' Thereupon the judgment was reversed. And in the case of Dunn v. Com., 6 Pa. St. 384, it was held that the record in a capital case must show affirmatively the prisoner's presence in court, and that it was not allowable to indulge the presumption that everything was rightly done until the contrary appears. Ball v. U.S., 140 U.S. 118, 11 Sup. Ct. Rep. 761, is to the same effect.

In Hopt v. Utah, 110 U.S., at page 578, 4 Sup. Ct. Rep., at page 204, it is said: 'The argument in behalf of the government is that the trial of the indictment began after and not before the jury was sworn; consequently that the defendant's personal presence was not required at an earlier stage of the proceedings. Some warrant, it is supposed by counsel, is found for this position in decisions construing particular statutes in which the word 'trial' is used. Without stopping to distinguish those cases from the one before us, or to examine the grounds upon which they are placed, it is sufficient to say that the purpose of the foregoing provisions of the Utah Criminal Code is, in prosecutions for felonies, to prevent any steps being taken in the absence of the accused, and after the case is called for trial, which involve his substantial rights. The requirement is, not that he must be personally present at the trial by the jury, but 'at the trial.' The Code, we have seen, prescribes grounds for challenge by either party of jurors proposed; and provision is expressly made for the 'trial' of such challenges, some by the court, others by triers. The prisoner is entitled to an impartial jury composed of persons not disqualified by statute, and his life or liberty may depend upon the aid which, by his personal presence, he may give to counsel and to the court and triers in the selection of jurors. The necessities of the defense may not be met by the presence of his counsel only. For every purpose, therefore, involved in the requirement that the defendant shall be personally present at the trial where the indictment is for a felony, the trial commences at least from the time when the work of impaneling the jury begins.' And, further: 'We are of opinion that it was not within the power of the accused or his counsel to dispense with the statutory requirement as to his personal presence at the trial. The argument to the contrary necessarily proceeds upon the ground that he alone is concerned as to the mode by which he may be deprived of his life or liberty, and that the chief object of the prosecution is to punish him for the crime charged. But this is a mistaken view as well of the relations which the accused holds to the public as of the end of human punishment. 'The natural life,' says Blackstone, 'cannot legally be disposed of or destroyed by any individual, neither by the person himself, nor by any other of his fellow creatures, merely upon their own authority.' 1 Bl. Comm. 133. The public has an interest in his life and liberty. Neither can be lawfully taken except in the mode prescribed by law. That which the law makes essential in proceedings involving the deprivation of life or liberty cannot be dispensed with or affected by the consent of the accused, much less by his mere failure, when on trial and in custody, to object to unauthorized methods.' So, too, in the case of Schwab v. Berggren, 143 U.S. 442, 12 Sup. Ct. Rep. 525, this language of the court in Hopt v. Utah is cited and approved.

In the case of Dyson v. State of Mississippi, 26 Miss. 362, 383, it was said: 'It is undoubtedly true that the record must affirmatively show those indispensable facts without which the judgment would be void,-such as the organization of the court; its jurisdiction of the subject-matter and of the parties; that a cause was made up for trial; that it was submitted to a jury sworn to try it, (if it be a case proper for a jury;) that a verdict was rendered, and judgment awarded. Out of abundant tenderness for the right secured to the accused by our constitution to be confronted by the witnesses against him, and to be heard by himself or counsel, our court has gone a step further, and held that it must be shown by the record that the accused was present in court pending the trial. This is upon the ground of the peculiar sacredness of this high constitutional right. It is also true, as has been held by this court, 'that nothing can be presumed for or against a record, except what appears substantially upon its face." Continuing, the court said: 'This rule has reference to those indispensable requisites necessary to the validity of the record as a judicial proceeding.'

As already said, the record shows that at the trial of the case the court directed two lists of 37 qualified jurymen to be made out by the clerk, and one to be given to the district attorney and one to the counsel for the defendant; and the court further directed each side to proceed with its challenges, and without knowledge on the part of either as to what challenges had been made by the other. Although the record states that after the challenges the 12 jurors who remained were sworn, yet it clearly appears from the whole record, and the lists therein referred to, that after the challenges there remained, not only 12, but 15, jurors, and that by the mode adopted, which required the prisoner to challenge by list, he exhausted some of his challenges by challenging jurors at the foot of the list, and who were never reached to be sworn as jurors in the case. And the record does not disclose that at the time the challenges were made the jury had been called into the box, nor that they or the prisoner were present at the time the challenges were made. It does, indeed, appear that the clerk called the entire panel of the petit jury, but it does not appear that, when the jury answered to said call, they were present so that they could be inspected by the prisoner, and it is evident that the process of challenging did not begin until after said call had been made. We do not think that the record affirmatively discloses that the prisoner and the jury were brought face to face at the time the challenges were made, but we think that a fair reading of the record leads to the opposite conclusion, and that the prisoner was not brought face to face with the jury until after the challenges had been made and the selected jurors were brought into the box to be sworn. Thus reading the record, and holding, as we do, that making of challenges was an essential part of the trial, and that it was one of the substantial rights of the prisoner to be brought face to face with the jurors at the time when the challenges were made, we are brought to the conclusion that the record discloses an error for which the judgment of the court must be reversed.

The right of challenge comes from the common law with the trial by jury itself, and has always been held essential to the fairness of trial by jury. As was said by Blackstone, and repeated by Mr. Justice Story: 'In criminal cases, or at least in capital ones, there is, in favorem vitae, allowed to the prisoner an arbitrary and capricious species of challenge to a certain number of jurors, without showing any cause at all, which is called a 'peremptory challenge;' a provision full of that tenderness and humanity to prisoners for which our English laws are justly famous. This is grounded on two reasons: (1) As every one must be sensible what sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another, and how necessary it is that a prisoner (when put to defend his life) should have a good opinion of his jury, the want of which might totally disconcert him, the law wills not that he should be tried by any one man against whom he has conceived a prejudice, even without being able to assign a reason for such his dislike. (2) Because, upon challenges for cause shown, if the reason assigned prove insufficient to set aside the juror, perhaps the bare questioning his indifference may sometimes provoke a resentment; to prevent all ill consequences from which, the prisoner is still at liberty, if he pleases, permptorily to set him aside.' 4 Bl. Comm. 353; U.S. v. Marchant, 4 Mason, 160, 162, and 12 Wheat. 480, 482. See, also, Co. Litt. 156b; Termes de la Ley, voc. Challenge, 2 Hawk, c. 43, § 4; Reg. v. Frost, 9 Car. & P. 129, 137; Hartzell v. Com., 40 Pa. St. 462, 466; State v. Price, 10 Rich. Law, 351, 355.

There is no statute of the United States which prescribes the method of procedure in impaneling jurors in criminal cases, and it is customary for the United States courts in such cases to conform to the methods prescribed by the statutes of the states. In the present instance the method prescribed by the statutes of Arkansas was not followed, nor does it appear that there exists any general rule on the subject in the circuit court of the western district of Arkansas. While the court in the present instance did not exceed its jurisdiction in directing the impaneling of the jury by a method different from that prescribed by the state statute, and while we do not feel called upon to make suggestions as to the proper practice to be adopted by the circuit courts in impaneling juries in criminal cases, yet obviously all rules of practice must necessarily be adapted to secure the rights of the accused; that is, where there is no statute, the practice must not conflict with or abridge the right as it exists at common law. In the trial of Jeremiah Brandreth, 32 Howell, St. Tr. 755, 771, where a question arose as to the order of challenge of jorors in a capital case, it was said by Mr. Justice Abbott: 'Having attended, I believe, more trials of this kind than any other of the judges, i would state that the uniform practice has been that the juryman was presented to the prisoner or his counsel, that they might have a view of his person. Then the officer of the court looked first to the counsel for the prisoner to know whether they wished to challenge him. He then turned to the counsel for the crown, to know whether they challenged him, and, if neither of them made any objection, the oath was administered.' In Townley's Case, 18 Howell, St. Tr. 347, 348, the prisoner's counsel moved that before any juryman should be brought to the book the whole panel might be called over once in the prisoner's hearing, that he might take notice who did or who did not appear, which they said would be a considerable help to him in taking his challenges. This was done by order of the court.

In the case of Lamb v. State, 36 Wis. 424, where it did not appear affirmatively by the record that the panel of jurors in respect to which the prisoner had the right of peremptory challenge was present in the view of the prisoner, but where the members of the jury were called into the box one at a time, and either challenged or sworn, and to which method the prisoner excepted, this was held reversible error, and the court said: 'We cannot but agree with the learned counsel for the plaintiff in error that this mode of impaneling the jury largely impaired the right of peremptory challenge, essential in contemplation of law to the impartiality of the trial; for it is, as Blackstone says, an arbitrary and capricious right, and it must be exercised with full freedom, or it fails of its full purpose. The mode adopted gave no opportunity for comparison and choice between jurors, and little opportunity for observance of each juror, apparently essential to the exercise of a right so visionary and fanciful.'

In the case of Hopt v. Utah, already cited, it was held that the trial by triers, appointed by the court, of challenges of proposed jurors in felony cases, must be had in the presence as well of the court as of the accused, and that such presence of the accused cannot be dispensed with. In this case the triers took the juror from the court room into a different room, and tried the grounds of challenge out of the presence as well of the court as of the defendant and his counsel, and it was held by this court that it was error which vitiated the verdict and judgment to permit the trial of challenges to take place without the presence of the accused; and this, although the accused failed to object to the retirement of the triers from the court room, or to the trial of the several challenges in his absence. The record in this case discloses that the prisoner objected and took due exception to the orders of the court directing the method of taking challenges. It is true that no specific exception was taken by the prisoner, based on the stated fact that he was called upon to challenge jurors not before him, but we think that the general exception taken to the action of the court in prescribing the method of procedure was sufficient.

Another assignment averred error in the court in the selection of the jury, in that the defendant was required to make his challenges without first knowing what challenges the government's attorney had made, and thus challenged three jurors who were also challenged by the government, whereby he was deprived of three of his challenges, contrary to law. This assignment of error is based on a specific exception taken at the time by the prisoner, and in this respect it differs from the case of Alexander v. U.S., 138 U.S. 353, 11 Sup. Ct. Rep. 350, where the same error was assigned, and was not considered by this court because it had not been properly excepted to at the trial. As we have already said, we do not deem it our duty to prescribe in this opinion rules to regulate the discretion of the circuit courts in the impaneling of jurors in criminal cases. Perhaps the preferable course would be for the circuit courts to adopt the methods prescribed by the statutes of the states, because such methods are familiar to the bar and the people of the states. If, however, the circuit courts choose to deal with such matters by rules of their own, we think it essential that such rules should be adapted to secure all the rights of the accused. It does not appear in the present case that the prisoner made any demand to challenge any of the jury beyond the twenty allowed by the Revised Statutes. In fact, it does not clearly appear which side made the first challenges, or that the defendant had not exhausted his challenges before the government challenged the three jurors in question. If it were a fact that the defendant had made his twenty challenges before the government had challenged these three men, it is difficult to see how his rights were prejudiced by the action of the district attorney; but we should hesitate to affirm this judgment upon a record giving us so little information as to the history of the trial in these respects.

The only other error assigned which calls for notice is the one objecting to the language used by the court when cautioning the jury in respect to the testimony bearing on the defense of an alibi. Whether the language of the learned judge went beyond the verge of propriety we are not called upon to consider, as no due exception was taken at the trial, and no opportunity was, therefore, given the court to modify the charge.

The objection to the language used, urged on the motion for a new trial, cannot be regarded as equivalent to an exception at the trial. Because, however, of the error into which the court full, in directing secret challenges to be made, and not in the presence of the prisoner and the jorors, the judgment of the court below must be reversed, and the case remanded for a new trial.

Judgment reversed.

Notes