Page:Federal Reporter, 1st Series, Volume 6.djvu/148

 136 federal bepobtbb. �United States v. Eose.* �{Circuit Court, S. D. Ohio. March 7, 1881.) �L Fbdeeal Jueibs— Talesmeu— Act of Jxjne 30, 1879— Rev. 8t. f 804 —Construction. �The act of congress of June 30, 1879, prescribing the mode in which juries shall be drawn in the United States courts, did not, either expressly or impliedly, repeal section 804 of the Revised Stat- utes; and therefore wlien, from challenges or otherwise, there is bot a petit jury to determine ariy cause, the court may direct the marshai to fill the panel from the bystanders. �Motion for New Trial. �The defendant was indicted for violation of the internai reyenue law. When the case was called for trial, and a jury was being empanelled, the defendant, in the exercise of his right of challenge, challenged from the jury some of the jurors who had been regularly drawn and summoned as jurors for the term. To fiU the vacancies occasioned by these chal- lenges the court directed the marshai to fill the panel by calling persons from the bystanders. The defendant objected to this, and demanded that the panel should be fiUed by per- sons whose names should be drawn by the clerk and jury commissioner, as provided in the second section of the act of June 30, 1879, (21 St. at Large, 43.) But the court ovpr- ruled this objection, and the panel was filled by persons called by the marshai from the bystanders, and the trial pro- gressed and the jury returned a verdict of guilty against the defendant. Thereupon the defendant moved the court for a new trial, assigning as a reason therefor the error of the court in causing the panel to be filled from the bystanders. �T. C. Camphell and H. B. Banning, for motion. �CJianning Richards, Dist. Att'y, contra. �Swing, D. J. The language of section 2 of the act of June 30, 1879, in regard to the manner in which juries shall be selected, is: "And that ail such jurors, grand and petit, includ- ing those summoned during the session of the court, shall be �« Reported by Messrs. Florien Giauque and J. C. Harper, of the Cincin- uati bar. ��� �