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under the State law. (Silsby v. Foote, 14 How. 218.) A territorial court is not deprived of its jurisdiction to try a person indicted for a criminal offense by the fact that an alien sat on the grand jury that found the indictment, under a provision of a territorial statute permitting it. (Ex parte Harding, 120 U. S. 783.)

§ 340.

Race or color not to exclude.

No citizen possessing all other qualifications which are or may be prescribed by law shall be disqualified for service as grand or petit juror in any court of the United States, or of any State, on account of race, color, or previous condition of servitude; and any officer or other person charged with any duty in the selection or summoning of jurors who shall exclude or fail to summon any citizen for the cause aforesaid shall, on conviction thereof, be deemed guilty of a misdemeanor, and be fined not more than five thousand dollars. (18 U. S. Stats. 336; 1 Sup. Rev. Stats. 149.)

Note-No person charged with a crime involving life or liberty is entitled by the United States Constitution to have his race represented upon the grand jury that may indict him, or upon the petit jury that may try him. (Jugiro v. Brush, 140 U. §. 291; Wood v. Brush, 140 U. S. 278, 370.)

§ 341. Jurors, per diem. -That the per diem pay of each juror, grand or petit, in any court of the United States, shall be two dollars. (21 U. S. Stats. 43.)

§ 342.

Jurors, how drawn.-And that all such jurors, grand and petit, including those summoned during the session of the court, shall be publicly drawn from a box containing, at the time of each drawing, the names of not less than three

hundred persons, possessing the qualifications prescribed in section eight hundred of the Revised Statutes, which names shall have been placed therein by the clerk of such court and a commissioner, to be appointed by the judge thereof, which commissioner shall be a citizen of good standing, residing in the district in which such court is held, and a well-known member of the principal political party in the district in which the court is held opposing that to which the clerk may belong, the clerk and said commissioner each to place one name in said box alternately, without reference to party affiliations, until the whole number required shall be placed therein. But nothing herein contained shall be construed to prevent any judge from ordering the names of jurors to be drawn from the boxes used by the State authorities in selecting jurors in the highest courts of the State. (21 U. S. Stats. 43.)

Drawing jurors.--In drawing jurors the great object is to obtain qualified jurors, and this is effected by the courts of the United States and their officers, and is under the sole regulation of Congress. (United States v. Collins, 1 Woods, 199; United States v. Woodruff, 4 McLean, 105; United States v. Gardner, 5 Chic. L. N. 501.) The State law does not apply. (Alston v. Manning, 1 Chase, 460; United States v. Collins, 1 Woods, 499.) The marshal is substituted for the ordinary, who acts under State laws (United States v. Collins, 1 Woods, 499; United States v. Woodruff, 4 McLean, 105); and the jurors need not be taken from the lists made by State authority; conformity is required only in two respects: first, as to qualifications and exemptions; second, as to the mode of designating impanneling (United States v. Collins, 1 Woods, 499; see United States v. Gardner, 5 Chic. L. N. 501); but a literal conformity is not required. (United States v. Tallman, 10 Blatchf. 21; United States v. Wilson, 6 McLean, 604.) The Act of Congress of June 30, 1879, having ref

erence to drawing jurors for the Federal courts, did not repeal U. S. Rev. Stats. secs. 800, 802, 804, 808, prescribing the qualifications, etc., of jurors. (United States v. Eggan, 30 Fed. Rep. 608.)

§ 343. Qualifications. And no person shall serve as a petit juror more than one term in any one year, and all juries to serve in courts after the passage of this act shall be drawn in conformity herewith; provided, that no citizen possessing all other qualifications which are or may be prescribed by law shall be disqualified for service as grand or petit juror in any court of the United States on account of race, color, or previous condition of servitude. (21 U. S. Stats. 43.)

Note. The provisions of this section are mandatory (United States v. Ambrose, 3 Fed. Rep. 283), and any irregularity which may arise from other than evil motives will not be fatal. So, the mere fact that the name of one grand juror contained in the venire was not put in the box nor drawn will not vitiate the indictment, unless the act was done in bad faith. (United States v. Ambrose, 3 Fed. Rep. 283.) This provision as to qualifications is authorized by the Thirteenth and Fourteenth Amendments. (Ex parte Virginia, 100 U. S. 339.)

§ 344. Juries interchangeable. Whenever any circuit and district court of the United States shall be held at the same time and place they shall be authorized and required, if the business of the courts will permit, to use interchangeably the juries in either court drawn according to the provisions of said act. (25 U. S. Stats. 386.)

§ 345. Jurors, how apportioned.—Jurors shall be returned from such parts of the district, from time to time, as the court shall direct,

so as to be most favorable to an impartial trial, and so as not to incur an unnecessary expense, or unduly to burden the citizens of any part of the dis trict with such services. (Rev. Stats. sec. 802.) Note. A jury cannot be selected from any particular locality without an order of court. (U. S. v. Coit, 1 Car. Law Rep. 346; but see U. S. v. Price, 3 Hall L. J. 121.) The part of the district from which jurors may be drawn is within the discretion of the court. (U. S. v. Stowell, 2 Curt. 153; U. S. v. Woodruff, 4 McLean, 105.)

§ 346. Venire, how issued and served. Writs of venire facias, when directed by the court, shall issue from the clerk's office, and shall be served and returned by the marshal in person, or by his deputy; or in case the marshal or his deputy is not an indifferent person, or is interested in the event of the cause, by such fit person as may be specially appointed for that purpose by the court, who shall administer to him an oath that he will truly and impartially serve and return the writ. (Rev. Stats. sec. 803.)

§ 347. Talesmen for petit juries.—When from challenges or otherwise, there is not a petit jury to determine any civil or criminal cause, the marshal or his deputy shall, by order of the court in which such defect of jurors happens, return jurymen from the bystanders sufficient to complete the panel; and when the marshal or his deputy is disqualified as aforesaid, jurors may be so returned by such disinterested person as the court may appoint, and such person shall be sworn, as provided in the preceding section. (Rev. Stats. sec. 804.)

Note. This section is not repealed in terms by the act

of June 30, 1879, nor is it repealed by implication. (U. S. v. Rose, 6 Fed. Rep. 137.) Whenever by reason of challenge there is not a petit jury, it is within the province of the court to direct the marshal to complete the panel by calling a sufficient number from the bystanders. (U. S. v. Rose, 6 Fed. Rep. 137.) Persons selected for the panel, and present in court when returned by the marshal, are bystanders, although they were not in court when summoned. (U. S. v. Loughery, 13 Blatchf. 267.)

§ 348. Special juries.—When special juries are ordered in any circuit court, they shall be returned by the marshal in the same manner and form as is required in such cases by the laws of the several States. (Rev. Stats. sec. 805.)

$ 349. Number of grand jurors.-Every grand juror impanneled before any district or circuit court shall consist of not less than sixteen nor

more than twenty-three persons. If of the persons summoned less than sixteen attend, they shall be placed on the grand jury, and the court shall order the marshal to summon, either immediately or for a day fixed, from the body of the district, and not from the bystanders, a sufficient number of persons to complete the grand jury. And whenever a challenge to a grand juror is allowed, and there are not in attendance other jurors sufficient to complete the grand jury, the court shall make a like order to the marshal to summon a sufficient number of persons for that purpose. (Rev. Stats. sec. 8C8.)

Note. This section does not apply to territorial courts. (Reynolds v. United States, 98 U. S. 145.) Although a person summoned as a grand juror fails to attend, yet the marshal cannot excuse him and substitute another in his place. (1 Burr's Trial, 37.) The court has power to determine the number to be summoned that a grand jury

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