RICHARDS et al. v. UNITED STATES, 126 F. 105

GILBERT, Circuit Judge, after stating the case as above, delivered the opinion of the court. The record in this case is incumbered by a mass of irrelevant matter. It includes the indictment against Joseph Wright, the examination of the jurors in that case, the testimony taken before the jury, the instructions of the court to the jurjq and all the orders of the court.

We have nothing to do with the question of the guilt or the innocence of Wright, or the correctness of the charge of the court in his case, nor with any of the matters contained in the record in that case, save such as directly refer to the assignments of error in the case at bar. Although the writ of error is prosecuted by both Richards and Jourden, no- appearance is made in this court on behalf of the latter. All the testimony taken in the case is presented in the bill of exceptions. It fully sustains the charges against Jourden, and, so far as he is concerned, it requires no discussion.

The plaintiff in error Richards concedes the rule to be that if there be any evidence whatever, no matter how slight, in favor of the judgment, no relief can be -afforded by this court. But he contends that the record shows a complete absence of incriminating evidence against him. Upon a careful scrutiny of the testimony contained in the bill of exceptions, we are of the opinion that his contention is sustained by the record.

The trial court found the plaintiff in error guilty of willful disobedience to its order in the Wright case, in that he subpoenaed two of the talesmen from the bystanders, and not from the body of the district. The court found the facts to be that, when the regular panel was exhausted, Shea and Mike Sullivan were in the courtroom, and that Shea stood by Richards, and that Richards heard. the application of the district attorney to have the special venire men summoned from the body of the district, and not from the bystanders, and heard the court’s allowance thereof.

It appears that the order which was made by the court for the issuance of the special venire was not entered upon the journal of the court.

On the trial of these proceedings against the plaintiffs in error, the district attorney applied to the court for an order in the Wright case nunc pro tunc, in accordance with his recollection of the order as it was made at the time, as presented to the court — a form of order which recited that, on an application for an order for a special venire, directing the marshal to summon from the body of the district, and not from the bystanders, talesmen to complete the jury, the court made the order as applied for.

The court, however, declined to make the order nunc pro tunc on the ground that the Wright case was not then before the court.

Subsequently, on the trial of the case now under consideration, it was shown on behalf of the plaintiff in error Richards that the authority under which he subpoenaed the talesmen and upon which he made his return was a certified copy of an order issued by the clerk of the court, attested by the seal of the court, addressed to the marshal, and directing him as follows; “You are hereby commanded to summon from the citizens and bystanders eight (8) qualified persons to serve as petit jurors at the special February, 1902, term of the said court; said jurors to appear before the court forthwith.” In the certified transcript of the records in the case of The United States v.

Wright, it appears that the following were the proceedings of the court in relation to the special venire: “Mr. McGinn: I would suggest, then, that an open venire be issued for six more jurors; and I would rather have them picked from the body of the people, rather than bystanders. The Court: Any objection to that? Mr. Sullivan: We have no objection to that. The defendant has none, if the court please. The Court: Let an open venire issue for eight jurors.

That will probably be sufficient.” The marshal testified that he was not in the courtroom at the beginning of this colloquy, but that, having heard it reported that the court was about to order a special venire, he went into the courtroom, and as he entered he heard the court directing that an open venire issue for eight jurors. He denies that he heard the preliminary remarks of counsel in relation to the venire, and there is no testimony in the record to the contrary, or that he knew that the district attorney had asked that the jurors be picked from the body of the people, rather than from the bystanders.

Shea and Mike Sullivan were bystanders at the time when the order was made, and, if the marshal had knowledge that it’was the intention of the court in making the order that no bystanders be subpoenaed, his action in placing their names on the list to be subpoenaed was a violation of the order, and was evidence to sustain one of the charges of the information. But we cannot discover, from a careful examination of this record, that there is any evidence that the marshal knew that such was the intention of the court. The certified copy which was handed him by the clerk was direct authority to the contrary.

It directed him to summon talesmen from the citizens and bystanders. We think, therefore, that there is a total failure of evidence to sustain that branch of the charges.

The other evidence upon which the trial court found the plaintiff in error guilty of the offense charged in the information consists of two items of testimony, first, that he had told his deputy, Griggs, that he had some subpoena tickets to serve, and directed him to go down to the “Lobby Saloon and get those parties”; and, second, the testimony of Eames that in the conversation which he had with Richards after the Wright trial, and after knowledge had come to Richards that Eames had been employed as a detective to look up evidence against him, he said to Eames that he had put him (Eames) upon the jury on the assurance of Griggs that he was “all right.” As to this latter item of evidence, it seems clear that in making that remark, if he made it, Richards must have had reference to his own action after it had come to his knowledge that Eames had been subpoenaed by Griggs.

In other words, the import of his words to Eames is: “I permitted your name to remain on the deputy marshal’s return of those who were subpoenaed as jurors upon the assurance of Griggs that you were all right.” It is not pretended that Richards had anything to do with the selection of Eames as a tales-man. On the contrary, all the evidence of the prosecution shows that Eames was first selected by Jourden after Griggs arrived at the Lobby Saloon, and after Griggs had served Shea and Sullivan.

According to Eames’ own statement, Jourden’s first conversation with him about his serving as a juror was had at that time, and Eames testified that he was put on the jury as the result of his own overtures to Jourden at that time. It is evident that the marshal was not, and could not have been, a party to the selection of Eames, and that he could have known nothing of it until Griggs returned to the marshal’s office with the information that Eames had been served.

The whole case, therefore, against the marshal, comes finally to rest solely on the testimony of the deputy marshal, Adam Johnson, who testified that Richards instructed Griggs to go down to the Lobby Saloon “and get those parties.” The marshal does not deny that he told Griggs to go to the Lobby Saloon, but he adds that he told him also to go to the Golden Gate Hotel. It is not disputed that at that time the marshal had made out a list of names of eight men to be subpoenaed.

It appears from the evidence that the Lobby Saloon was located near the courthouse, and that it was a place of rendezvous for lawyers, witnesses, jurors, and business men. Of the eight men whose names were selected by the marshal to be subpoenaed on the open venire, but two were in fact found in the Lobby Saloon. These were Shea and Sullivan. They were both, as we have seen, in the courthouse when the order was made.

It is a fair inference from the circumstances that the marshal, seeing them there, selected them at that time, as he testified that he did; that he assumed that they would stop at the Lobby Saloon with the crowd that went from the courthouse; and that his instruction to Griggs to “get those parties at the Lobby Saloon” had reference only to Shea and Sullivan. None of the other men whose names were on the list which the marshal had in his hand were in fact found at the Eobby Saloon. He is not charged with any misfeasance in selecting the other six men that were on the list.

It is not shown or hinted in any of the testimony that at the time when the list was made out the name of either Eames or Hayden was suggested or thought of by any one in the marshal’s office. All the evidence shows that Eames and Hayden were put upon the jury at the instance of Jourden, and after Shea and Sullivan had been subpoenaed, and after Griggs, the deputy marshal, had inquired of Jourden for the names of men to be suggested for talesmen.

There is evidence, it is true, that the marshal knew that Mike Sullivan was a friend of Wright; that, when the district attorney subsequently accused him of misfeasance in selecting the jury, and said to him, “You knew that Mike Sullivan was a friend of Wright,” he had answered, “Yes; and I also knew that he was a friend of yours.” The fact that he knew that one of the talesmen whom he caused to be subpoenaed was a friend of the defendant in that action is not of itself evidence sufficient to establish the charge of willful contempt of court.

The learned judge of the court below attached importance to the fact that there was evidence to show that the marshal’s deputy, Griggs, and his attorney, P. C. Sullivan, were in conference with Jourden at the Eobby Saloon in connection with the selection of Eames and Hayden as talesmen, and, in his opinion, remarked that the marshal was represented in that conference by his attorney and by his deputy. So far as it concerns the part of Griggs in that matter, there is no evidence whatever even tending to show that the marshal authorized his acts, or was cognizant of them.

It is true that it appears from the record that P. C. Sullivan was attorney for the marshal in some litigation which he had had, but the fact that the relation of attorney and client existed between them cannot be given the force of direct evidence against the accused on the charges here involved. Nor does it justify the inference that the marshal was represented by his attorney in the conference at the saloon.

The most that can be claimed from it is that the marshal was on friendly terms with the attorney, and that it might, perhaps, be argued that on that account he would be more disposed to aid him in an attempt to influence a jury than he would be if that relation did not exist. Such an argument might properly be adverted to in conjunction with evidence sustaining the charges. It is not to be presumed, however, that a sworn officer of a court would, at the instance of his attorney, disregard his duty, or lend himself to a scheme to subvert the ends of justice.

The most that can be said of the evidence against the marshal is that, conceding it all to be true, it presents some circumstances calculated to arouse suspicion, but not sufficient to sustain a judgment of conviction of so grave an offense as that with which he is charged. The judgment against the plaintiff in error Richards is reversed, and the cause is remanded for a new trial.