Rodriguez v. United States, 198 U.S. 156 (1905)

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Rodriguez v. United States

No. 183

Submitted March 15, 1905
Decided May 1, 1905
198 U.S. 156

ERROR TO THE DISTRICT COURT OF THE UNITED

STATES FOR THE DISTRICT OF PORTO RICO

Syllabus

Under §§ 34, 35 of the Foraker Act of 1900, 31 Stat. 5, this Court can review judgments of the District Court of the United States for Porto Rico in criminal cases where the accused claimed, and, as alleged, was denied, a right under an act of Congress and under the Revised Statutes of the United States.

Although a motion in arrest of judgment, based on the ground that the grand jury was not properly impaneled by reason of the deputy clerk’s acting in place of the clerk, was made in time, and the court below may have erred in its interpretation of the statute, the accused cannot avail of that even in this Court unless the record shows that an exception was properly taken. The accused could have waived such an objection to the grand jury, and, by not excepting to the ruling, he must be held to have acquiesced in the ruling and waived his objection.

This writ of error brings up for review a final decree of the District Court of the United States for the District of Porto Rico by which, in conformity with the verdict of a jury, the plaintiffs in error, Rafael Rodriguez and Euripides Rodriguez, were sentenced to confinement in the penitentiary, the former, for three years at hard labor, the latter, for two years, and to pay a fine of $500.

The indictment contained two counts. The first count charged that, on the first day of November, 1902, in the District of Porto Rico, the defendants unlawfully conspired together to steal, embezzle, and purloin the moneys of the United States, and that, to effect the object of such conspiracy, Rafael Rodriguez, on the above date, being a postmaster of the United States, did feloniously steal, embezzle, and purloin out of certain letters which came to his possession as postmaster, and which had not then been delivered to the party to whom they were directed, divers bank notes and United States notes, the property of the United States, of the value of $560. The second count charged that the defendants (Rafael Rodriguez being postmaster, as aforesaid) on the above date, and within the said district, feloniously stole, embezzled, and purloined bank notes and United States notes, the property of the United States, of the value of $560, out of certain letters addressed to the postmaster of the United States at San Juan, Porto Rico, and intended to be conveyed by mail, which letters had previously come into the possession of Rafael Rodriguez, as postmaster, and had not then been delivered to the party to whom they were directed.

The defendants jointly moved to quash the indictment upon grounds substantially involving its sufficiency. The motion was overruled, the court observing:

The indictment charges the defendants with conspiring to commit an offense, and that, in pursuance to that, one of them did certain acts which, owing to the alleged conspiracy, were the acts of both. The use of the word "embezzle" in the indictment is surplusage. The charge is a larceny as described in the indictment.

The defendants took an exception.

The defendants then moved to quash the panel of petit jurors, on the ground, among others, that the jurors had not been selected and drawn in the mode required by the Revised Statute of the United States. On this motion, evidence was heard, but the evidence was not made a part of the record by bill of exceptions or otherwise. The motion to quash was denied.

Thereupon, the defendants were arraigned, and pleaded not guilty. Bystanders were summoned to serve on the panel, and from them a jury was selected. No objection was made to the jury so selected.

The result of the trial was a verdict of guilty on the first count.

After the return of the verdict, the accused moved in arrest of judgment upon the following grounds: that the grand jury was not selected or drawn according to the requirements of the statute in such cases made and provided; that the clerk of the court took no part in the selection of the names to be placed in the jury box, but the other jury commissioner of the court, after directing a deputy clerk to prepare lists and tickets of persons, placed all the tickets with names in the box himself; that from the tickets and names so placed in the box by the commissioner, the grand jury was subsequently drawn; that the deputy clerk was not and is not a person authorized under the law to take part in the selection or drawing the grand and petit juries of the court; that he had not been theretofore appointed by the court for that purpose; that he was not shown to be of a different political affiliation from the jury commissioner theretofore appointed by the court, and that said names were not placed in the box alternately by the commissioner and the clerk. 21 Stat. 43, c. 52.

The motion in arrest of judgment was overruled, the court making an order which contained the following recitals:

It appears the regular jury commissioner, Andres Crosas, and the deputy clerk, Frank Antonsanti, acted in doing so, the clerk of the court being absent on sick leave. There is no charge of corruption or that the selection was not by impartial persons. The general rule as to provisions of law for the selection of jurors is that they are only directory. There appear to have been some irregularities and not an exact compliance with the terms of the statute, but both the commissioner Crosas and the deputy clerk made the selection, and both were present all the time during the selection, and no one else took part in it. It is not shown they are not of opposite politics, and this is to be presumed. There was no such material irregularity as vitiated the panel, but a substantial compliance with the statute upon the subject. The motion in arrest of judgment is overruled.

Subsequently the defendant moved for a new trial upon various grounds. That motion was overruled, and this writ of error was brought.