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§ 1725. Special provisions as to summoning jurors in particular districts and divisions.

There are special provisions as to the summoning of jurors in certain judicial districts which are of course controlling in the particular districts affected. [a]-[i]

Author's section.

[a] Arkansas.

By R. S. § 814, it is provided that "in the western district of Arkansas such number of jurors shall be summoned at every term of the district court thereof, to be held at Helena, as may have been ordered at a previous term, or by the district judge in vacation. And a grand jury may be summoned to attend any such term when ordered by the court, or by the judge in vacation. In case of a deficiency of jurors, talesmen may be summoned by order of the court."

[b] Colorado.

By act of 1880, regarding terms of court in Colorado it was provided that "whenever the terms of the said circuit and district courts shall be held at the same time and place, grand and petit jurors summoned to attend in either of said courts may serve in the other of said courts, and but one grand or petit jury shall be summoned to attend on said courts at one and the same time; but this provision shall not prevent either of said courts from procuring the attendance of several panels of jurors successively, as the business of the courts may require."3

[c] Indiana and Kentucky.

By R. S. § 815, it is provided that "in the several districts of Kentucky and Indiana, such number of jurors shall be summoned by the marshal at every term of the circuit and district courts, respectively, as may have been ordered of record at the previous term; and in case there is not a sufficient number of jurors in attendance at any time, the court may order such number to be summoned as, in its judgment, may be necessary to transact the business of the court. And a grand jury may be summoned to attend every term of the circuit or district court by order of the court. The marshal may summon juries and talesmen in case of a deficiency, pursuant to an order of the court made during the term, and they shall serve for such time as the court may direct."

[d] Michigan and Minnesota.

The act of 1887 providing for terms at Bay City, Michigan, provides that "each of said courts [i. e., circuit and district] is authorized and required

S. Comp. Stat. 1901, p. 416 ("residents"); act Feb. 7, 1900, c. 10, § 6, 31 Stat. 6, U. S. Comp. Stat. 1901, p. 419 ("residents").

3 Act Apr. 20, 1880, c. 58, § 2, 21 Stat. 76, U. S. Comp. Stat. 1901, p. 330.

to make all such rules and regulation relative to the summoning of grand and petit jurors to attend upon the sessions of said court at Bay City and relative to matters of practice therein, that may from time to time be deemed necessary."s By an act af 1890 respecting judicial divisions in Minnesota it is provided that "a grand and petit jury shall be summoned for each of said terms [i. e., of the circuit and district courts], which petit jury shall be competent to sit and act as such jury in either or both of said courts at such terms; provided, that the judge of the district court may, in his discretion, dispense with the summoning or impaneling of more than one grand jury in each year in any of said divisons."9

[e] Mississippi, Missouri and Montana.

An act of 1882 creating divisions in the northern Mississippi district declared that "juries shall be summoned for the additional courts hereby created as now provided by law for the summoning of juries in said northern district."10 There is a similar provision in an act of 1887 creating divisions in the Missouri districts.11 An act of 1888 creating additonal terms in Montana authorized the summoning of grand and petit juries to serve thereat.12

[f] New York and North Carolina.

By R. S. § 806, as amended in 1882,16 it is provided that "no jury shall be drawn for service exclusively in the circuit court for the northern district of New York at the terms thereof required by law to be held at Albany and Syracuse, or at the adjourned term thereof required by law to be held at Utica, if a jury is drawn to serve in the district court held at the same time and places with said terms and adjourned term, but it shall be used for the trial of issues of fact arising in civil and criminal causes in said circuit court; and the verdicts of said jury and all proceedings upon the trial of said issues shall be of the same effect as if the said jury had been drawn to serve in the said circuit court." By R. S. § 816 it is provided that "the circuit and district courts for either of the districts of North Carolina may order a grand or petit jury, or both, to attend any special term thereof, by an order to be entered of record thirty days before the day on which such special term is appointed to convene."17

[g] Oklahoma and Pennsylvania.

The act admitting Oklahoma provides for one grand jury in each year in

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each of the circuit and district courts for each district.19 An act of 1902 concerning the middle district of Pennsylvania declares "that the number of traverse or petit jurors summoned to attend at any term of the said courts [i. e., circuit and district courts] shall not be less than twenty-four nor more than forty-eight, as the said courts by their order from time to time shall direct."20

[h] South Carolina and South Dakota.

By R. S. § 817 it is provided that “the grand and petit juries for the district court sitting in the western district of South Carolina shall be drawn from the inhabitants of said district who are liable, according to the laws of said State, to do jury duty in the courts thereof; and all jurors shall be drawn during the sitting of the court for the next succeeding term." In the South Dakota district it is provided by act of 1893 that "all grand and petit juries for the circuit and district courts shall be drawn by the clerk of the circuit court, and all grand and petit jurors summoned for service in each division shall be residents of such division."2

[i] Vermont.

By R. S. § 807 it is provided that "the clerk of the district court for Vermont shall not cause a petit jury to be summoned or returned to any session in which there shall appear to be no issue proper for trial by jury, unless by special order of the judge."

19 Act June 16, 1906, c. 3335, § 13, 34 Stat. 275.

20 Act June 30, 1902, c. 1335, § 3, 32 Stat. 549, U. S. Comp. Stat. 1901, p. 108.

2 Act Nov. 3, 1893, chap. 10, § 6, 28 Stat. 5, U. S. Comp. Stat. 1901, p. 412.

§ 1735.

§ 1736.

CHAPTER 53.

WITNESSES.

Competency of witnesses in Federal courts-State laws followed.
Persons convicted of perjury incompetent witnesses.

§ 1737. Defendants in criminal cases as witnesses.

§ 1738.

§ 1739.

No person compelled to be witness against himself.
Right of accused as to witnesses in criminal cases.

§ 1740.

§ 1741.

Testimony before Congress not to be used in criminal proceedings. -pleadings, disclosures, etc., not to be used.

§ 1742.

Subpoenas for witnesses in another district.

§ 1743.

§ 1745.

§ 1746.

Summoning and attendance of government witnesses.

§ 1744. Witnesses for indigent defendants-payment of fees.

how taken in Vermont.

Recognizances of witnesses in criminal cases.

§ 1747.

-on application of district attorney-commitment for want thereof.

§ 1748.

Subpoenas to witnesses in patent cases.

§ 1749.

-penalty for failure or refusal to testify.

§ 1750.

§ 1751.

Taking testimony of witnesses for use in foreign country.
privilege of witness in such cases.

§ 1752. -penalty for refusal or neglect to testify.

§ 1753. fees and mileage of witnesses testifying.

§ 1754. Bankruptcy-attendance of witnesses outside the State.

§ 1755. Punishment of recalcitrant witnesses.

§ 1735. Competency of witnesses in Federal courts-State laws

followed.

The competency of a witness to testify in any civil action, suit or proceeding in the courts of the United States shall be determined. by the laws of the State or Territory in which the court is held. [a]-[e] R. S. § 858, as amended June 29, 1906, c. 3608, 34 Stat. 618.

[a] The section prior to amendment.

Prior to the above amendment the section read as follows: "In the courts of the United States no witness shall be excluded in any action on account of color,or in any civil action because he is a party to or interested in the issue tried; provided, that in actions by or against executors, administrators or guardians, in which judgment may be rendered for or

against them, neither party shall be allowed to testify against the other, as to any transaction with or statement by the testator, intestate or ward, unless called to testify thereto by the opposite party, or required to testify thereto by the court. In all other respects the laws of the State in which the court is held shall be the rules of decision as to the competency of witnesses in the courts of the United States in trials at common law, and in equity and admiralty." While all the cases set forth in the following notes to this section arose, prior to the above amendment they may be of aid to the practitioner in interpreting the amended section.

[b]-effect in general.

The statute is a remedial one, intended to remove technical disqualifications in the common-law rules of evidence and should be liberally construed.1 Except as to those named in the proviso all parties are put on an equality with all other parties, 2 whether interested or not.3 The statute is not permissive merely and under it one party may compel the other to testify. But a party to a Federal action at law cannot be examined at the instance of the other party before trial.5 It does not, however, effect the exclusion of the testimony of a husband or wife on the grounds of public policy. But in bankruptcy a creditor, although the wife of the bankrupt, is a competent witness.7

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While this section applies to the courts of the district of Columbia,10 it does not apply to the Territorial courts.11 The rules followed in the Court of Claims regarding witnesses, 12 are given elsewhere. By the first clause of the section all actions, both civil and criminal, are included, but the second clause is in terms restricted to civil actions only.14 The disability of defendants in criminal actions as witnesses has been removed.15 The phrase "civil actions" includes all judicial controversies in which the rights of property are involved, whether between private parties

1United States v. Clark, 96 U. S. 37, 24 L. ed. 696; Texas v. Chiles, 21 Wall. 488, 22 L. ed. 650.

2 Lowrey v. Kusworm, 66 Fed. 539. 3 Cornett v. Williams, 20 Wall. 226, 22 L. ed. 254; Kerr v. Modern Woodmen, etc. 117 Fed. 593, 54 C. C. A. 655.

4 Texas v. Chiles, 21 Wall. 488, 22 L. ed. 650; Railroad Co. v. Pollard, 22 Wall. 350, 22 L. ed. 879; Lowrey v. Kusworm, 66 Fed. 540.

5 Easton v. Hodges, 7 Biss. 326, Fed. Cas. No. 4,258.

Hopkins v. Grimshaw, 165 U. 8. 349, 41 L. ed. 740, 17 Sup. Ct. Rep. 401; Lucas v. Brooks, 18 Wall. 436, 21 L. ed. 779.

7In re Richards, 10 Chi. Leg. News. 275, 20 Fed. Cas. No. 11,770.

10 Page v. Burnstine, 102 U. S. 664, 26 L. ed. 268.

11Corbus v. Leonhardt, 114 Fed. 10, 51 C. C. A. 636; Good v. Martin, 95 U. S. 90, 24 L. ed. 341; Clinton v. Englebrecht, 13 Wall. 434, 20 L. ed. 659. Under the amended section however the territorial laws as to competency of witnesses are to be followed.

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