JOHNSON et al. v. UNITED STATES, 247 F. 92

HUNT, Circuit Judge (after stating the facts as above). Zeal in performing official duty is to be commended, and activity by the proper officials in detecting violations of the law by using all proper means and methods is not at all inconsistent with indifference to any particular result other than the efficient administration of the law.

But when a marshal, without authority of law or instructions from competent authority, hires a private individual to detect suspected violations of a particular law and pays such person out of his own private funds, and upon the information furnished by such person, who admits that he also participated in the offense under investigation, prosecution is instituted against certain persons, and the principal evidence relied on is to come from such employed detective, a situation is presented where, if on the trial a jury panel is exhausted, and it becomes necessary to draw jurymen from the bystanders, a defendant may well object to.the drawing of such jurymen by the marshal or his deputies, upon the ground that he is not an indifferent person, and, if there be no denial of the facts and circumstances shown, the duty of the court is to specially appoint a fit person as provided by the statute.

The question is not whether there is a personal malice or ill will on the part of the marshal, but whether his acts and the surrounding circumstances have been such that they impel the belief that he is no longer indifferent in his official attitude as between the United States and the persons on trial, and for that reason is not a fit person to be intrusted with the power to return jurymen from bystanders to complete the panel for the immediate case.

We are keeping in mind the presumption that the marshal will do his duty without favor; but, lest he may not do so, the particular statute quoted interposes, with the object of insuring that absolute fairness of procedure, which can best be had by not allowing one who is not indifferent to select jurors from bystanders. It is said that as the procedure in criminal cases in Alaska is statutory, and as there is no statute expressly authorizing the appointment of an elisor, the United States statutes (803 and 804) quoted are not applicable.

It is undoubtedly correct, in a general way, to say that the Alaska Criminal Code and Code of Criminal Procedure provide for nearly every step in criminal proceeding, including the method of drawing jurors. Summers v. United States, 231 U. S. 92, 34 Sup. Ct. 38, 58 L. Ed. 137. And as relating to the drawing of additional jurors we quote

section 2229, Compiled Raws of Alaska: “The trial jury shall be formed as follows: When the action is called for trial the clerk shall draw from the trial jury box of the court, one by one, the ballots containing the names of the jurors until the jury is completed or the ballots are exhausted. If the ballots become exhausted before the jury is complete, the marshal, under the direction of the court, shall summons from the bystanders or the body of the district so many qualified persons as may be necessary to complete the jury.” Certainly this statute must control as a rule.

But, if it should come about that a showing is made of the manifest unfitness of the marshal to summon jurors, in the absence of local legislation directing how to proceed, the general law of the United States becomes wholly applicable and controlling. If this were not so, we would find that the guaranty that one accused shall have the right to trial by an impartial jury would mean less in Alaska than in the states. We are unable to assent to such a proposition. Thompson v. Utah, 170 U. S. 343, 18 Sup. Ct. 620, 42 L. Ed. 1061. Reversed and remanded for a new trial.