to find this indictment." It is not stated how this influence was produced-whether by the production of evidence before them, and pertinent suggestion respecting it, or otherwise. It is stated that, "if said Francis J. Heney had not so unlawfully appeared" before the grand jury, this indictment would not have been found. All this cannot be other than mere opinion. If he had "lawfully" appeared before them, the presumption is that the same result would have followed. In other words, Mr. Heney's influence with the grand jury cannot possibly be said to have been affected by his residence, and that is the ground of his alleged disqualification to hold the office. All these matters, and those which relate to his alleged presence while the grand jury was deliberating-to his arguments, denunciations, intimidations, etc.-are indefinite and vague. The district attorney may explain both his case and his law to the jury. United States v. Cobban (C. C.) 127 Fed. 713. If he went beyond this, his acts may constitute an irregularity; but the case must be extreme before the court will try the district attorney or the grand jury, or both, in order to determine whether it will try a defendant. Instead of conclusions and opinions, there must be something tangible, justifying a presumption of injury to the defendant in a substantial right, before the court will interfere; assuming that it ought to do so upon any state of facts of the character indicated.

Similar questions to those presented upon this ground of the plea were considered by Judge Deady in United States v. Brown, 1 Sawy. 533, Fed. Cas. No. 14,671, and in that case the court said:

"Neither the motion to set aside nor the motion to quash will lie where the objection does not appear or arise upon the face of the indictment, or perhaps the records of the court. This being so, the affidavits of the defendants impugning the conduct and judgment of the grand jury cannot be considered upon the bearing of this motion. If the contrary practice were established, there would be no need of grand juries, and the court would necessarily assume both the function of indicting and trying criminals, for it is safe to presume that in most cases the defendant would object to being tried upon the indictment, and support such objection by his affidavit that he believed the grand jury acted upon incompetent or insufficient evidence. The wit of man could not devise a mode of indicting which would not be liable to this objection from the defendant."

It remains to be considered whether the organization of the grand jury and the legality of its proceedings can be attacked on the grounds alleged, as a matter of legal right.

Section 800 of the Revised Statutes [U. S. Comp. St. 1901, p. 623] provides that jurors in the United States courts shall have the same qualifications as jurors of the highest courts of law in the state where the court is held, and they shall be designated by ballot, lot, or otherwise, according to the mode of forming such juries then practiced in such state court, so far as such mode may be practicable, by the courts of the United States, and for this purpose the courts of the United States may by rule or order conform the designation and impaneling of juries, in substance, to the laws and usages relating to jurors in the state courts. This section is the act of 1840 (chapter 47, 5 Stat. 394), with some

amendments not important in this connection. No express rule or order has been adopted in this court, conforming the designation and impaneling of juries to the laws and usages of the state courts, although this court has conformed its practice in that respect to state laws and usages since its organization. It is not left, however, to the discretion of the United States courts, to conform their practice respecting the organization of juries to state laws. The requirements of the act of 1840 (section 800) are imperative: "And they [juries] shall be designated," etc., "according to the mode of forming such juries" in the state courts. In the case of United States v. Reed, 2 Blatchf. 435, Fed. Cas. No. 16,134, tried in the Northern District of New York before Justice Nelson and District Judge Hall, it was held that the state law which abolished challenge to the grand jury panel, and limited the objection that might be made to any particular juror, applied in the federal courts sitting in New York. Nelson, J., delivering the opinion of the court, after explaining the reasons for allowing the challenge to the array at common law, said:

"So that, in point of law, as well as in truth, both the challenge to the favor and the challenge to the array, directly or indirectly, in each case, go to the determination of the proper qualifications of grand jurors, either as individuals or as a panel. And if we are right in our premises, it follows that the two sections in question are directly within the act of Congress of 1840, and are applicable in regulating the selection, summoning, returning, and organization of grand juries in the federal courts."

The court goes on to say that, although challenges have been abolished, it by no means follows that the accused has no remedy in a case where there has been any improper conduct or fraud committed by the public officers in drawing, summoning, or organizing the grand jury. Such proceedings are always under the general supervision of the court. "The court has general power to preserve the pure administration of justice, and its sound discretion will always be exercised freely for the purpose of securing that end."

The Reed Case is approved and followed in United States v. Tallman, 10 Blatchf. 21, Fed. Cas. No. 16,429. The court held that the state statute having been adopted by the federal statute; and, the state statute having taken away the right of challenging the array, it had the effect, by implication, of taking away the right to raise objection in any form in the United States court.

The case of United States v. Tuska, 14 Blatchf. 5, Fed. Cas. No. 16,550, adopts the rule of the foregoing cases. There was a plea in abatement averring that one of the grand jurors was a nonresident. The court, after stating that the case is covered by the decision in the Reed Case, goes on to say:

"If, in every criminal prosecution, the accused has the legal right, by a plea in abatement, to raise the question of the residence and the property of each of the members of the grand jury, and require that issue to be tried before a jury, before calling upon him to answer the charge, it is easy to see that, in localities like New York, the practice would substantially render the trial of an offender optional with him, for, in the absence of any better method of selecting juries for courts of the United States than that permitted by

exising laws, it doubtless happens that some one of the grand jury is open to question as to his residence or property."

In the case of United States v. Eagan, supra, which was tried before Justice Brewer and Circuit Judge Thayer, the court cousidered the effect of sections 722 and 800 [U. S. Comp. St. 1901, pp. 582, 623] with reference to the question under consideration. Mr. Justice Brewer, quoting that portion of section 800 which provides that jurors to serve in the courts of the United States, in each state, respectively, shall have the same qualifications and be entitled to the same exemptions as jurors of the highest court of law in the state, says:

"Mr. Conkling, in his treatise on the Practice of the United States Courts, insists that there are cogent reasous for holding that this refers not merely to the mere qualifications as to citizenship, age, residence, etc., but that it extends to all the proceedings for challenging and determining the qualifications of jurors, and to that extent incorporates the laws of the state. Clearly, with these two sections [800, 722] of the federal statute, we have the right, if we are not bound in every case in which there is no express provision of the federal statute, to apply the provisions and the laws of the state in which the court is held; and, applying the laws of Missouri, there can be no question but that this plea in abatement must be overruled."

Judge Thayer, commenting upon the case, stated it as his opinion that under section 722 the court was authorized to conform its rulings to the practice which obtains in the state courts of Missouri, and that, under the practice in the state courts, it was clear, beyond question, that the plea in abatement stated no valid ground of objection to the indictment.

Section 722, referred to in the foregoing opinions, provides, in effect, that the jurisdiction in civil and criminal matters conferred on the Circuit and District Courts by the provisions of title 13 and of title "Civil Rights" and of title "Crimes," for the protection of all persons in the United States in their civil rights and for their vindication, shall be exercised and enforced in conformity with the laws of the United States. But when the laws of the United States are not suitable, "or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed" by the Constitution and laws of the state, shall govern, etc. The defendant upon this hearing contended that the operation of this section was limited to offenses under what is known as the "Civil Rights Act," and that the phrase "civil rights," employed in the section, means only such rights as are provided for in that act. But there is no ambiguity whatever in the provision, and there can be no question. as to its general application.

In the case of United States v. Clune (D. C.) 62 Fed. 798, Judge Ross held that, there being no provision of the United States statutes regulating challenges to grand jurors, it is proper for the federal court to follow the practice of the courts of the state in which it is held, with reference to such challenges.

In the case of Crowley v. United States, 194 U. S. 461, 24 Sup. Ct. 731, 48 L. Ed. 1075, the court held that it was the duty of the

court in Porto Rico to recognize any valid existing local statute relating to the qualifications of jurors. By the local law, challenges were allowed to jurors for the disqualification relied upon in the plea. The question as to whether the objection allowed by the local law to jurors, and by it made a ground of challenge, could be taken by plea in abatement after the return of the indictment, is not, in Porto Rico, controlled by any statute; and the court, therefore, upon "principles of general law," sustained the plea, stating in its opinion that the authorities are not in harmony as to the general law.

In the case of United States v. Benson, supra, Justice Field, applying the local law, refused to set an indictment aside when the name of a grand juror did not appear on the last preceding assessment roll. This was a disqualification under the statute, but not a ground of challenge. The court, referring to the state law, said:

"Turning to the causes for which a challenge to the panel, or to an individual grand juror, may be interposed, we find none which embraces the objection taken by the plea in abatement."

I believe there is no case where an objection to an indictment in a federal court has been sustained when the mode employed to present the objection was contrary to the provisions of the local law.

Section 1269 of the Oregon code provides that no challenge shall be made or allowed to the panel from which the grand jury is drawn, nor to an individual grand juror, unless when made by the court for want of qualification as prescribed in section 1268. tion 1268 provides that, before accepting a person drawn as a grand juror, the court must be satisfied that such person is duly qualified to act as such juror, but that, when drawn and found qualified, he must be accepted, unless he is excused by the court, etc. The only plea in addition to the pleas of guilty and not guilty allowed by the statute is the plea of former conviction or acquittal, and there are only two grounds upon which an indictment can be set aside on motion, and neither of these is included in the pleas in question. Section 1349 provides that:

"The indictment must be set aside by the court upon the motion of the defendant in either of the following cases: (1) When it is not found indorsed and presented as prescribed in chapter 7 of title 18 of this Code; (2) when the names of the witnesses examined before the grand jury are not inserted at the foot of the indictment or indorsed thereon."

There is no other provision for setting an indictment aside, and the express mention of this mode is, of course, the exclusion of any other.

In State v. Whitney, 7 Or. 388, it was held, that, when a person other than the district attorney appeared before the grand jury and examined witnesses, this was not a ground for setting an indictment aside, inasmuch as it was not within either of the only two cases upon which such action could be taken.

In State v. Carlson, 39 Or. 26, 62 Pac. 1016, 1119, it is decided by the Supreme Court of Oregon that challenges to the panel and

to individual grand jurors are abolished in this state (it was previously so held in State v. Fitzhugh, 2 Or. 227); that the statute, in effect, interposes a challenge to each grand juror drawn; that the court, in impaneling the grand jury, is presumed to have determined the question of each grand juror's qualifications; and that such determination is conclusive, and is not subject to appeal.

I have not referred to all the cases that support the views contained in this opinion. Those referred to are, in my opinion, conclusive of the questions considered. The rule by which the procedure in the federal courts relating to the organization of grand juries and objections to indictments is made to conform to the local law is too firmly established to admit of question at this late day. It has existed in this court since its organization, with the establishment of the state government, without objection until the present time. And the state court procedure has remained without material change since its adoption, more than 40 years ago, notwithstanding the facility with which laws are amended in the state. It may be safely assumed that it has not been productive of injustice or wrong, and it can never so operate while courts have, in the general supervision and control of their proceedings, power to preserve the pure administration of justice.

It follows from these considerations that all objections to an indictment not provided for as herein before set forth must be addressed to the court, for the exercise of its discretion; and when it is made to appear that there has been fraud practiced, or other acts committed, that impairs a defendant's substantial right, the court, in the exèrcise of a sound discretion, will grant appropriate relief.

The objections to the several pleas are sustained, and said pleas are ordered dismissed, except as to the plea by which the objection to George Guistin on the ground of alienage is made. The facts alleged in that case constitute a positive disqualification by the state law, and while, under the state court rule, which is a rule of procedure in this court, the objection to this juror cannot now be made, yet, in view of the statement of the district attorney, made on the hearing, that, if the court should decide adversely to the defendant, yet, out of abundant caution, he desired to meet this objection upon the facts, I will afford him the opportunity to do so. This he may do by filing the affidavits offered on the hearing, or by testimony in open court, with the right, of course, on the part of the defendant, to file counter affidavits or to introduce testimony to meet that produced by the government.

As to the other affidavits offered, inasmuch as they cannot, in the view I have taken of the case, prejudice the defendant, and the court on appeal may reach a different conclusion respecting their admissibility from that reached by me, the district attorney has leave to file them if he desires to do so.