Appeal from the District Court of the United States for the Northern District of Illinois, Eastern Division.
Before ALSCHULER, EVANS, and FITZHENRY, Circuit Judges.
ALSCHULER, Circuit Judge.
Needham alone appeals from a judgment against him and his codefendants, under an indictment for using the mails to defraud. His sentence was one year's imprisonment. The evidence given on the trial is not before us. The errors alleged relate wholly to the sufficiency of the indictment, and to the drawing and summoning of the petit jury.
The contentions respecting the insufficiency of the indictment were fully presented to us and considered upon the appeal from a prior conviction of all the defendants under this same indictment, which resulted in reversal of the judgment. Norcott et al. v. United States (C.C.A.) 65 F.2d 913.
Appellant contends that upon that appeal the sufficiency of the indictment was not as to him presented, in that he had not demurred to it; but, on the contrary, the court denied his motion to withdraw his plea of not guilty and to file a demurrer, whereas prior to this trial he was permitted to withdraw his plea and to file his demurrer, which the court overruled. Several of his codefendants, however, did demur before the first trial, and the sufficiency of the indictment was there presented and elaborately briefed. Besides Needham there raised and urged the same propositions as to the indictment, upon his motion in arrest of judgment, which was denied.
Regardless of any question as to whether our prior decision sustaining the indictment is now the law of the case, we are satisfied that all those matters here presented respecting the sufficiency of the indictment had our full and adequate consideration on the former appeal, and were there properly decided. We perceive no reason for now holding otherwise.
Respecting the questions raised concerning the jury, none of them are personal to any of the jurors who sat in the case, but extend to the observance of the requirements in the drawing of the jurors and the service of the several venires.
The first order was for a hundred jurors; the second and third each for fifty. From the first venire six of the jurors who tried the case were taken, five from the second, and one juror and two substitute jurors from the third. It does not appear that the substitute jurors became members of the jury.
Timely challenge to the array was interposed to the first panel, but neither by challenge to the array nor in any other manner was objection made to the second and third panels until long after the rendition of the jury's verdict, after many weeks of trial. The challenge to the first panel was made orally on the day the trial commenced, with leave of the court to reduce it to writing afterwards and to verify it and have it filed nunc pro tunc as of the date of the oral challenge. Five days later a verified challenge in writing was filed nunc pro tunc as of the date of the oral challenge. An order sustaining the Government's demurrer to the challenge was then entered nunc pro tunc as of date of the previous order to that effect.
Several of the alleged causes for challenge are directed to the want of apportionment among all the counties of the district of the jurors drawn under the first venire. Concededly there is no statute requiring jurors to be apportioned among the various counties or parts of a district. It has been held that if jurors are drawn in a certain manner, or from parts of the district less than the whole, it will be presumed, unless the contrary appears, that this was in compliance with rule or order of the court. Lewis v. United States, 279 U.S. 63, 49 S. Ct. 257, 73 L. Ed. 615.
Other causes stated in the challenge are that the jurors were not summoned by the marshal as by law required. Assuming this to be so, the jurors appeared and those selected from the first panel served, and the record affords not even a suggestion of any harm or prejudice to appellant which thereby accrued. And indeed this may be said as to all of the stated causes.
Such matters do not go to the merits, and where no harm or prejudice appears to have accrued to a defendant by reason of such irregularities, judgment will not be disturbed because thereof. Agnew v. United States, 165 U.S. 36, 17 S. Ct. 235, 41 L. Ed. 624; Morrison v. United States, 71 F.2d 358, 359 (C.C.A. 5); Brookman v. United States, 8 F.2d 803 (C.C.A. 8); Siebert v. People, 143 Ill. 571, 32 N.E. 431.
In one of the alleged causes it is stated on information and belief that when the first panel was drawn there were not in the box three hundred or more names of jurors apportioned among the counties of the district and possessing the qualifications of jurors as provided by law. Except as stated in the other causes, there are no facts alleged to sustain this allegation, and nothing is set forth to ...