RODRIGUEZ
v.
UNITED STATES.

*159 Mr. Francis H. Dexter, Mr. Frederic D. McKenney and Mr. John Spalding Flannery for plaintiffs in error.

*160 Mr. Assistant Attorney General Robb and Mr. Assistant Attorney Glenn E. Husted for the United States.

*161 MR. JUSTICE HARLAN, after making the foregoing statement, delivered the opinion of the court.

The first question is one of the jurisdiction of this court to reexamine the judgment below — the Government insisting that we are without jurisdiction.

We are of opinion that this question is settled by Crowley v. United States, 194 U.S. 461, 462, which was a criminal prosecution for the violation of certain statutes of the United States relating to the postal service.

By the act of April 12, 1900, 31 Stat. 77, 85, c. 191, establishing a civil government for Porto Rico, it was provided that, except as otherwise provided, the statutory laws of the United States shall have the same force and effect in Porto Rico as in *162 the United States; also, that writs of error and appeals may be prosecuted from the final decisions of the District Court of the United States for Porto Rico "in all cases where . . . an act of Congress is brought in question and the right claimed thereunder is denied." Section 35. The same act provided that the United States Court for Porto Rico shall have jurisdiction "of all cases cognizant in the Circuit Court of the United States, and shall proceed therein in the same manner as a Circuit Court." Section 34. In Crowley's case the contention of the accused, based upon a plea in abatement, was that certain members of the jury finding the indictment were disqualified under the local law to serve as grand jurors, and that the statutes of the United States made it the duty of the District Court to follow the local law in that respect. Referring to the above act, we said: "In this case that act was brought in question by the contention of the parties — the contention of the accused being, in substance, that pursuant to that act of Congress the court below, in the matter of the qualifications of grand jurors, should have been controlled by the provisions of the local law relating to jurors, in connection with the statutes of the United States relating to the organization of grand juries and the trial and disposition of criminal causes; and the court below deciding that, notwithstanding the Foraker act, the local act of January 31, 1891, referred to in the plea, was not applicable to this prosecution, and that the grand jury finding the indictment, if a grand jury was necessary, was organized consistently with the laws of the United States under which the court proceeded. It thus appears that the accused claimed a right under the act of Congress and under the Revised Statutes of the United States, which, it is alleged, was denied to him in the court below. This court has, therefore, jurisdiction to inquire whether there is anything of substance in that claim."

As the Porto Rican statutes contain no provisions relating to the selection, drawing or impaneling of grand jurors, it was, as the accused contends in this case, the duty of the District *163 Court of the United States for Porto Rico in criminal prosecutions for crimes against the United States, to keep in view section 800 of the Revised Statutes, which provides: "Jurors to serve in the courts of the United States, in each State respectively, shall have the same qualifications, subject to the provisions hereinafter contained, and be entitled to the same exemptions, as jurors of the highest court of law in such State may have and be entitled to at the time when such jurors for service in the courts of the United States are summoned; 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 or the officers thereof. And for this purpose the said courts 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, from time to time in force in such State."

It was also its duty, in such prosecutions, to conform to the act of Congress of June 30, 1879, 21 Stat. 43, c. 52, which provides that jurors to serve in the courts of the United States "shall be publicly drawn from a box containing, at the time of each drawing, the names of not less than three hundred persons, possessing the qualifications prescribed in section 800 of the Revised Statutes, which names shall have been placed therein by the clerk of such court and a commissioner, to be appointed by the judge thereof, which commissioner shall be a citizen of good standing, residing in the district in which such court is held, and a well-known member of the principal political party in the district in which the court is held opposing that to which the clerk may belong, the clerk and said commissioner each to place one name in said box alternately, without reference to party affiliations, until the whole number required shall be placed therein, . . . and all juries to serve in courts after the passage of this act shall be drawn in conformity herewith."

When, therefore, the accused in this case, by their motion *164 in arrest of judgment, claimed the benefit of the above statutes, the acts of Congress referred to were brought in question within the meaning of the act of April 12, 1900, as interpreted in the Crowley case; and the rights asserted by the accused under those statutes having been denied, when the motion in arrest of judgment was overruled, the case could be brought here. The words, "brought in question," in that act do not mean that the accused, in order to bring the final judgment here, must have disputed the validity of the acts of Congress which were alleged to have been violated to their prejudice. It was quite sufficient that they should assert rights under those acts and that the rights so claimed were denied to them. Crowley v. United States, supra.

The Government, however, contends that the motion in arrest of judgment came too late, and in support of that view cites the following language from United States v. Gale, 109 U.S. 65, 69: "Much more would it seem to be requisite that all ordinary objections based upon the disqualification of particular jurors, or upon informalities in summoning or impaneling the jury, where no statute makes proceedings utterly void, should be taken in limine, either by challenge, by motion to quash, or by plea in abatement. Neglecting to do this, the defendant should be deemed to have waived the irregularity." Wharton Cr. Pl. and Prac. §§ 344, 350, 426. But in the same case the court said what is pertinent to the present discussion: "There are cases, undoubtedly, which admit of a different consideration, and in which the objection to the grand jury may be taken at any time. These are where the whole proceeding of forming the panel is void; as where the jury is not a jury of the court or term in which the indictment is found; or has been selected by persons having no authority whatever to select them; or where they have not been sworn; or where some other fundamental requisite has not been complied with."

Here the objection to the grand jury was, in substance, that it was not such a body as could legally find an indictment. This view rests upon the ground that the names were placed *165 in the box by a jury commissioner, and by a deputy clerk, the latter, it is contended, having no authority to act at all in such a matter in place of the clerk, because the statute required the joint action of a commissioner and the clerk of the court. If, therefore, the requirement that the grand jurors should be selected by the commissioner and the clerk was a fundamental requisite, that is, if the deputy clerk, in the absence of the clerk, had no authority under any circumstances to act, then the motion in arrest of judgment did not come too late. There are authorities which give some support to the view that this requirement is of substance, and not a mere "defect or irregularity in matter of form only." Rev. Stat. § 1025; Hulse v. The State, 35 Ohio St. 421. Whether this position be well taken or not we do not stop to consider; for, assuming that the motion in arrest of judgment was made in time, and assuming even that the court, as matter of law, erred in its interpretation of the statute, still the accused cannot avail themselves here of that error; for the record does not show any exception taken to the overruling of the motion in arrest of judgment. By not excepting to the ruling of the court the accused must be held to have acquiesced in it, and to have waived the objection made to the grand jury. We perceive no reason why they could not have legally waived an objection based upon the grounds stated in the motion.

This disposes of the case; for the assignments of error present no other question that needs to be noticed. Besides, counsel for the accused have properly confined their discussion of the case to the question of the jurisdiction of this court, and to the action of the court below in overruling the motion in arrest of judgment. The judgment is

Affirmed.