Page:Federal Reporter, 1st Series, Volume 4.djvu/213

 VmiSD STATES V. OOPPSBSMITH. ���m ���crîmînal, each party shall be entitled to three peremptôry challenges," etc. ' - �It is apparent that it was here intend'ed to designate by the term "anyother felony," other oflfences than capital offenoes, for they are otherwise specially provided for by this section. �Prior to legislation by congress this matter of peremptory challenges in the federal courts was in some confusion until the supreme court deelared thàt they might, by rule, adopt the state practice. U. S. v. Shackleford, 18 How. 588; U. S. V. Douglas, 2 Blatchf. 207; U. S. v. Reed, Id. 435, 447, and note; U. S. v. Cottingham, Id. 470; U, 8. v. Tallman, 10 Blatchf. 21; U. S. v. Devlin, 6 BMchf . 71. �■ When we could resort to the state practice it was generally found that legislation had accurately regulated the right ôf challenge by distinctly classifying offences with such statu- tory definitions as left no room for doubt. But since congress has legislated we can no longer look to the state laws for guidance, nor to the common law, but only to the acts of con- gress themselves, which, unfortunately, have only increased the confusion by the use of an indefinite term. I am not advised of any reported case construing this section, nor of the practice in regard to it, except that it is said at the bar that heretofore in this district 10 challenges bave not been allowed in any case where the offence charged was not, by the statute creating it, deelared to be a felony. The first aot of congress, passed March 3, 1865, (13 St. 500,) after provid- ing for treason and capital offences, as is dçne by this section 819, provided that, "on the trial of any other offence in which the right of peremptory challenge now exista, the defendant shall be entitled to ten and the United States to two peremptory challenges." The criticism of Judge Conkling, in the fifth edition of his Treatise, page 632, on this act, demonstrates how indefinite were the terms used, and he concludes that the section was nugatory as to ail crimes except treason and cap- ital offences : because the right of peremptory challenge, he says, only exists in cases oi felony, and noW nothing is felony except capital offences. In this criticism the leamed district judge of Oregon seems to concur, for he also declares the sec- ����