Hauptman

(concurring).

Upon the point touching the placing of the names of prospective jurors in the box, I concur on the sole ground that what was done by the officers was in substantial compliance with, and necessarily accomplished in full the purpose of, the law. Where, as here, both officers are present, advisedly agree upon the jurors to be selected, and co-operate in putting the names agreed upon into the box, to hold a procedure, the only rational object of which is to cover a case of disagreement, indispensable to validity, would be to impeach the good sense of the Legislature. But I do not share in the view that where a mandatory requirement of the statute is substantially violated, or disregarded, a party to an action is without remedy by seasonable challenge to the jurors so unlawfully selected, or that to succeed he must affirmatively show prejudice — generally a burden it would be impossible for him to carry — or that the appellate court will ignore a plain violation of the law in such a case merely because actual prejudice is not affirmatively established. Generally a party could not make such a showing even were he to be compelled to go to trial before ten juror.s instead…

(dissenting).

I do not think that a territorial judge is as free from the control of a territorial Legislature as is a United States District Judge from the control of a state Legislature, and I entertain grave doubt whether a legislative act providing that a territorial court in Alaska shall charge the jury in writing and before the argument is anything more than a minor regulation having to do with practice and procedure. United States v. Wigger, 235 U.S. 276, 281 , 35 S.Ct. 42 , 59 L.Ed. 226 . To so regulate the practice and procedure is certainly a right subject of legislation, and it can hardly be said that such a regulation deprives the judge of any authority, jurisdiction, or function within the meaning of section 3 of the act creating a legislative assembly in that territory. 37 Stat. 513 .

The judgment should be reversed.

Appellants were convicted in the District Court for the district of Alaska, First Division, at Ketchikan, Alaska, on September 24, 1929, for transporting intoxicating liquor in violation of the National Prohibition Act (27 U.S.C.A.) and for possessing intoxicating liquors in violation of an act of- Congress entitled “An Act to prohibit the manufacture or sale of alcoholic liquors in the* territory of Alaska, and for other purposes,” enacted February 14, 1917 ( 39 Stat. 903 [ 48 U.S.C.A. § 261 et seq,]). They appeal from the judgment and assign on the appeal certain alleged errors occurring at the trial. •

The defendants interposed a challenge to each of the jurors selected for the trial of this case on the ground that the jury box had not been filled in accordance with the provisions of the laws of Alaska with relation to selection of juries enacted by the Legislature of Alaska in 1925 (Laws of Alaska 1925, c. 16, p. 29), in that the names of the jurors were not placed in the jury box by the jury commissioner and the clerk one at a time alternately, but that 2,400 names were placed therein by the jury commissioner and the clerk, each placing therein alternately a small bunch or…