128 U.S. 171

9 S.Ct. 57

32 L.Ed. 389

LOVEJOY et al.

November 5, 1888.

J. M. Thurston, for plaintiffs in error.

Asst. Atty. Gen. Maury, for defendant in error.

Mr. Justice GRAY, after stating the facts as above, delivered the opinion of the court.


The bill of exceptions presents two questions, neither of which requires extended discussion: 1. The act of June 30, 1879, c. 52, § 2, (21 St. 43,) which provides that (unless the judge orders the names of jurors to be drawn from the boxes used by the state authorities) all jurors, 'including those summoned during the session of the court,' shall be publicly drawn from a box containing not less than 300 names, placed therein by the clerk and a commissioner appointed for the purpose,—while it expressly repeals certain sections of the Revised Statutes, respecting the selection, qualifications, and oath of jurors,—does not touch the power of the court, whenever, at the time of forming a jury to try a particular case, the panel of jurors previously summoned according to law is found for any reason to have been exhausted, to call in talesmen from the by-standers to supply the deficiency; and does not, either expressly or by implication, repeal section 804 of the Revised Statutes, by which, 'when, from challenges or other wise, 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 by-standers sufficient to complete the panel.' 3 Bl. Comm. 364, 365; 4 Bl. Comm. 354; U. S. v. Rose, 6 Fed. Rep. 136; Clawson v. U. S., 114 U. S. 477, 487, 5 Sup. Ct. Rep. 949.


It is established by repeated decisions that a court of the United States, in submitting a case to the jury, may at its discretion express its opinion upon the facts, and that such an opinion is not reviewable on error, so long as no rule of law is incorrectly stated and all matters of fact are ultimately submitted to the determination of the jury. The charge of the circuit court in the present case was clearly within the rule. Rucker v. Wheeler, 127 U. S. 85, 93, 8 Sup. Ct. Rep. 1142, and cases cited. Judgment affirmed.

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