Richard B. Kelly, for plaintiff in error.
Asst. Atty. Gen. Dickinson, for the United States. [163 U.S. 140, 141]
Mr. Chief Justice FULLER delivered the opinion of the court.
As stated by counsel for the United States, plaintiff in error was convicted and sentenced to imprisonment for life under an indictment for robbing a mail carrier of the United States of a registered mail package, which charged that, in effecting such robbery, he put in jeopardy the life of the carrier, by the use of dangerous weapons, and was based on the following section of the Revised Statutes:
In the course of impaneling the jury, plaintiff in error challenged three persons peremptorily, and afterwards challenged one Harris peremptorily; but the court held that he was entitled to only three peremptory challenges, which he had exhausted, and overruled the challenge, to which action of the court an exception was duly taken. Harris was then sworn on the jury, and sat as a member thereof on the trial. Four other persons were likewise separately challenged peremptorily, the challenges overruled, exceptions taken, and they served on the jury.
If plaintiff in error was entitled to ten peremptory challenges, five persons unlawfully took part as jurors in his conviction. Section 819 of the Revised Statutes provides:
Counsel concedes that, at common law, 'robbery' was a felony, and that the word 'rob,' in the statute, was used in its common-law sense, and therefore admits that the errors assigned in respect of the action of the court in overruling these challenges are well taken. We concur in this view.
Other rulings of the court are questioned in the brief of plaintiff in error, but it is quite improbable that they will occur on another trial, and we need not pass upon them.
Judgment reversed, and cause remanded, with a direction to set aside the verdict and grant a new trial.