Q;J FEDERAL. R:E;PORTER.
are the
of securings,vJl:mnal competent to and weigh and lr:eIlMr ,Il. verd,ict. unimpaired by prejudice or there is a, :re/lsonabledoubt of whether the juror comfs up to the that doubt should be r.esolved in favor of the acc),l,sell." .
-V. l;'eople, 13. Mich. Judge Cooley said that in criminal lcases, wherein,after full examination, the testimony given upon a challenge leaves a reasonable doubt of the impartiaIity<of the juror, the be given the 'benefit of the doubt. In'Pehple v. McQuade,IW N.y. 300, 18 N. E. 162, the court of appeals of that state, speaking of the ,statutory modification of the 'commo'ii·law rUle, said:' .i "There hilS been no change of the f)1ndamental rule that an accused person is to be tried by a fair and impartial jury. Formerly the fact that a juror had formed; ana ,expressed an opinion touching the guilt or innocence of a person accusedogfcrime was .in law a disquaHflcation; and, although he expressed an opinjo,n, that he could hear and. decide' the case upon the evidence produced, 't11is did not render him competent. * * * Now, as formerly, an existing opihion;by'a person called as a juror, of the guilt or innocence of a defendant charged With crime, is prima facie a disqualIfication; but it is not now, as before., a; Conclusive objection, provided the juror makes the declaration specified {that he 'qelieves that such opinion or impression will not Intiuence his veraiet, and he can render an ImPl/-rtial verdict according to the evidence), and the court, as judge of the fact, Is satisfied that such opinion will not influence his action.Bnt the declarat!en must be unequivocal. It does not satisfy the requirement, if the declaration is qualified or conditional. It is not enough to ,be able to point to detached lang\IliIge, Which, alone cons.trued, would seem to meet the statutory reqUirement, 'If, on construing the w}lOle declaration togetqer.1t is apparent the juror is not able to' express an absolute belief that his opinion will not 'influence his verdict."
a
In State, v. McClear, 11 Nev. 39, 67, Hawley, C. J., in concluding opinion, .said: .
!'Whennl)t regulated by' statutory provisions; we think that whenever the opinion .of the juror has Qeen formed upon hearing the evidence at a former trial, or at .the preliminary examination before a committing magistl'ate, or from 'any cause has' been so deHberately entertained that it -has become a fixed and settled 'beljef of the prisoner's guilt or innocence, it would be ''''Tong to receive him, In either event, in deciding these questions, courts I;emember that the infirmitiell of human nature are such that opinions. l>ti6e' deliberately formed and expressed cannot easIly be erased, and that prejudices' openly avowed cannot readily be eradicated from the mind. Hence,Whenever .it appears to the ·satisfaction -of the cOllrt that the bias of the juror, actual or implit\d, Is SO' strong that it canU9t easily be shaken off, ileither thepril;loner nor the state ought to be subjected to the chance of con· viction or acquittal it necessarily' begets. But whenever the court is satisfied that the of the juror 'were founded on newspaper reports and casual ()\)llversations,i WhIch the' juror feels conscious he can readily dismiss, and where he hilS no deliberate and fixed r:>pini<m, or personal prejudice or bias, in favor of or .against the dtlfendant, he oughtnot,'to be excluded. The sum and substance of 'this whole question is that. a' juror must come to the trial with a mind uDcommitted, anldbe prepared to weigh 'the evidence in impartial scales,. and a true verdict render according to, the law and .the evidence."
See, also,'Pe()ple v. Wellll, 100 OaL227, 34 Pa,c.718; People v. 'Casey, 96 N:Y.'122; Stephens v. People, 38 :Mich.' 739; Smith v. Eames, 36 Am. Dec. 515, and cases cited in note thereto. . .. One point'made on behalf <!f the 'appellant if is necessary to decide, afl, be sustaine(J" woulli, in view of the evidence
WILLIAMS
v.
UNITED STATES.
401
iII. the case, be useless to direct a new trial. That point is that there is II fatal variance between the proof on the part of the prosecution and the allegations of the indictment. It is contended in support of this point that the proof shows that the money was extorted by the defendant, if at all, not from Wong Sam, as alleged, but from one Chin, Deo'ck; and this, upon the ground that the money really came from Chin Deock, although the defendant dealt in the unlawful and criminal transaction with Wong Sam, and received the money from him. Both 'Wong Sam and Chin Deock were witnesses on the trial, and, according to their testimony, it was at the ·request of the latter that Wong Sam agreed to pay the defendant $100 for securing the landing of \Vong Lin Choy, and that, when the defendant came to Wong' Sam for the $100, the latter sent for Chin Deock,. who brought the money, and, in the presence of the defendant, handed it to ",Vong Sam, who, in turn, handed it to the defendant, after trying to induce him, without avail, to accept $90. We do not think the circumstance that \Vong Sam got the money that he paid the defendant from Chin Deock of any importance. The transaction constituting the crime, according to the evidence, was between the defendant and 'Vong Sam. The defendant, so far as appears, did not know Chin Deock, in the matter, at all, and had nothing to do with him. It was from Wong Sam that he demanded $100 for procuring the landing of Wong Lin Choy. and from Wong Sam that he received the money. This is in accordance with the averments of the indictment, and there was no variance. It is not necessary to consider any other assignment of error, as they all relate to the rulings of the court below, whieh, if in any respect erroneous, can be readily corrected on the new trial which must follow for the reason first stated herein. Judgment reversed and cause remanded for a new trial. GILBERT, Circuit Judge (dissenting). The examination of the juror on his voir dire, as set forth in the bill of exceptions, is chiefly presented in narrative form. We have not before UB the questions wh..ich he answered; nor have we the benefit, which the trial court had, of noting his demeanor, his appearance, or the tones of his voice. Nor does the bill of exceptions state that all of his examination is embOdied therein. The certificate is that it contains all the evidence necessary to explain the exceptions. But, assuming that the record contains substantially all that the juror testified, is the decision of, the trial court, overruling the challenge to the juror, ground for now reversing the judgment? By section 819 of the Revised Statutes it is provided that all challenges for cause or favor shall be tried by the court. In construing this provision, the United States courts, upon writ of error, have uniformly deferred to the decision of the trial court, and have exercised their power to set aside its decision with hesitancy. In Reynolds v. U. S., 98 U. S. 156, Chief Justice Waite said: "The question thus presented is one of mixed law and fact, and to be tried, as far as the facts are concerned, like any other issue of that character, upon the evidence. The finding of trial court upon that issue ought not to be set 93F.-26
402
93. FEDERAL, RJ!lfORTER.
by a:revlewing court, unless tM error is manifest. No less. stringent be applied by the reviewing court iii such a caSe than those which in the consideration of mOtlon!!'for new trial because ttle ver&ct is: agaiDstthe evidence; It must be. made clearly to appear that upon1;he evidence the court ought to have found thejur,or had formed such an opinion that.he(;!ould not in la,w be ,deemed impartial. 'The case must be on,e in which it is manifest the law leftlif>thilW to the 'conscience or discretion' of the court"
In Hopt v. Utah, 120 U, S. 435,.7 Sup. Ct. 616, where a juror had formed an opinion, but, stated under. path that notwithstanding such opinion he could and would act impartially and freely, the court said: "The judgment of the court upon the competency of the juror in such cases is conclusive."
In Spies v. Illinois, 123 U.S. 179, 8 Sup. Ct. 30, the language from Reynolds' Case, above quoted, was,.repeated, with the approval of the court. In Publishing Co. v.,McDonald, 19 C. C. A. 517, 73 Fed. 442, the circuit court of appeals for the Second ciI"Cuit said: "But it· must be remembered that the question before the trial judge, although one,of mixed law and, fact, is, in the main, a qUesijOll of fact, and that, while, he may be sOJ;lJ.etl1l'les wrongly influenced by a d,eslre to expedite the trial or by impatience of delays, yet, if his mind is undisturbed, the impression which the juror makes, of his inteIUgence, fairness; and evenness of mind, from a Personal insPection of him, and the bellef,.in regard to his probappearance und,er:examination, his able character, which iS,created by bearing,and willingness to; diSclose the nature and extent o,f, his preconceived opinionS, are valuable, and have deserved. weIght before an appellate court; and therefo're the finding of fact by the trial court will not be set aside, except for manifest error."
TUflling to the decision,S,' of the supreme court of California, we find tM of the, the trial by that court. In Trenorv.' RaIlroad Co., court hasbegn 50 Cal. 230, Rhodes, J., said: "And we are inclined to the opinion, though we do not so hold; that the decision is final, and not subject to review either on motion for a new trlal&ri .l>1I. 'appeal. But, however that may· be; if. t!,Ie deci;liqu is subject to review, it ls .qllly on the i grpund that the evidence is Ip.sufficient. to sustain ,!t ThiscoHl1. wO,uld. not,: e;X:cept in the case, interfere With the decision, for tM'tletermlnatlon Of the court below is based more. largely than in ordiiIary questfons: in Iltigati<>n Upon the beariiig, manner,' appearance, etc.. of the juror whUe giving his testimony."
state of mind of the juror 1f;l,SllCh as to constitute actual bias, wIthin theal'Jove definition, iS'a question of fact,' to' be determined by the court. . ' · ",r"The coUrt's decision upon these points, When the evidence disclosed upon thE.'examinatlotl,of the jurorill;s\lsceptlble qf different ronstructions"is to be oD, appea.llike of anr0ther of fact resting upoiI'thewe!ght or construction of ,ev.ldence." In People v. Fredericks;106CaI. 559, 3'9Pac. 945, the court said: ','This court,.is only allowed to review an order denying a challenge to a Juror lWon the ground of actual bias when evidence upon the examination
'tn Peop1ev'.'Welis; :100 Cal. 229, 34'pae'. section 1073 of rne' Pe'D:alCode which defines acfual1)ias 'to be "the existence ofastatg'()f lnind on the part of the jU1'orlnreferenoe to the case or parties,' ",ill hitnfY'otp .with entire Impat1:ulhty, and without prejq.'dlGe'to thesuhs1!antIal rIghts of either /'. the courtsaid: ,,' : : " ' : . , , ": ., I,'" , :', '1,1; '0,' ': ,', '.
UNITED STATES V. KIMPLAND.
403
is so opposed to the decision of the trial court that the question becomes oDe of law, for it is only 'upon questions of ,law that this court has appellate jurisdiction. * * * 'l'he evidence of' each juror was contradictory in 'itself. It was subject to more than one construction. A finding by the court either way upon the challenge would have support in the eVidence, and under such circumstances the trial court is the final arbiter of the question; tor under such conditions the question presented to this court by the appeal is one of fact, and our power to hear and determine is limited to appeals upon questions of laW alone."
Guided by the principles announced in the foregoing decisions, both of the courts of the United States and of California, I think the finding of the trial court in this case upon the question of the competency of the juror is conclusive. Conceding that the juror's evidence appears contradictory, and that there are portions of it which WQpldlfad to a contrary conclusion, it must be borne in mind that it is not our province to weigh the evidence, and to say whether or not the trial court should have found differently upon the facts. The only question for us to consider is whether there was evidence to supp<>rt the finding. The record shows that there was. When asked if he would sit as a juror, and render a verdict based solely evidence, he answered: "I think 1 would. I feel that I upon migllt." The force of these words would, it is true, largely depend upon and tones in which they were uttered. They might be said a hesitating, doubting manner, such as to convey the impresdistrusted his ability to divest himself sion that the speaker of bis bias; and, upon the other hand, they might be expressed with such earnestness and sincerity as to carry to the court the conviction that notwithstanding his bias the juror could and would act impartially. The trial court had a better opportunity than have we to judge of the effect and the credibility of that testimony, and he had the right to trust and act upon it. In so doing, he exercised a discretion which was vested in him by the statute; and his finding upon the facts is not, I think, subject to our review.
UNITED STATES, to Use of SICA, v. (Circuit Court, E. D. New York. 1.
et al. f\,pril 18, 1899.)
PRINCIPAL AND SURETy-BOND OF CONTRACTOR FOR PUBLIC WORK,-FuRNISHING LABOR on MATERIALS.
The condition in a bond of a contractor with the United States for public work, prescribed by 28 Stat. 278, which requires that the contractor shall make prompt payments to all persons supplying him labor and materials in the prosecution of the work, is intended to cover payments only for the visible material furnished for direct use and incorporation in the work, and of wages to the men whose services are directly employed in doing the work; and an action against the sureties on such a bond can only be malntained, under the statute, by one who has title to a claim for labor or materials so supplied. A person furnishing board and lodging to laborers employed on the work does not supply either labor or materials, within the statute.
2.
SAKE-ACTION ON BOND.
Plaintiff brought action, under 28 Stat. 278, on the bond of a contractor for public work, conditioned, as therein reqUired, for the payment by the 'contractor ()f all perllons supplying him labor and materials in the prose-