dissenting:
I cannot consent to that part of the decision of the court ordering a new trial.
Of course the defendant was entitled to a fair trial. This *203goes without saying. But a fair trial is one in obedience to the law of the land, and if he had such a trial he has no just cause for complaint.
According to defendant’s affidavit, which we must assume was made as strong as the facts would permit (Stephen v. Beall, 22 Wall. 329, 339, 22 L. ed. 786, 788), the only testimony given in the Slout Case with respect to him was to the effect that he had frequented the Stout woman’s house, and had on one occasion “stayed upstairs at the time of an altercation between her and a male visitor.” If he had denied this, or had produced no evidence at all upon the subject, there might be some ground for his contention that the jury was biased by the testimony which they had heard, but he did not follow that course. Instead he took the stand and admitted substantially all that he alleged in his affidavit the jurors had heard. lie averred that as a police officer he was assigned to the “red light” district, and that his work took him into houses of ill fame; that he knew the Stout woman when she kept such a house in this city; that he had been in her house and in apartments operated by her a number of times by himself and with other police officers; that he had a real estate transaction with her and that some of his visits were with respect to it, but asserted that he had not committed with her the offense charged. The jurors, then, had learned nothing from the testimony in the Stout case concerning him which he did not voluntarily admit upon his own trial.
The two motions which he filed were in the nature of attacks upon the array. Such attacks, with some rare exceptions, relate only to the summoning of the panel, and have no concern with the qualities of individual jurymen. 16 H. C. L. 57. Their unfitness to sit in a case is not properly raised by motions supported by an ex parle affidavit, as was done here. Every practising lawyer knows that affidavits are very unsatisfactory means for developing the truth. The appropriate method is by questions addressed to the individual jurors upon their voir dire. In the case at bar, if the jurors had been individually interrogated by the defendant and the government as to whether *204or not they had heard the testimony in the Stout Case, and, if so, what impression, if any, it had left upon their minds touching the guilt or innocence of the defendant, it might have been disclosed either that they had not heard the testimony, or, having heard it, that they paid little attention to it, and that it had no weight with them whatever. Their incompetency was by no means “obvious.” The question decided in Kansas City Southern R. Co. v. Jones, 241 U. S. 181, 183, 60 L. ed. 943, 945, 36 Sup. Ct. Rep. 513, cited by the majority, is quite different from the one before us. Even if the jurors had an opinion founded on what they had heard, it would not necessarily disqualify them from serving in the case. Mr. Justice Eobb, speaking for this court in Miller v. United States, 41 App. D. C. 52, 64, a criminal action, said of a juror who had an opinion based on a newspaper account of the crime charged, that he was not disqualified, since he had sworn upon his voir dire “that it would require no evidence to remove it [the opinion] , and that it would have no bearing in his mind upon his final decision of the questions involved in the case.” (See also Paolucci v. United States, 30 App. D. C. 217, 12 Ann. Cas. 110.) By the decision of the majority it is assumed not only that the jurors had formed an opinion, but also that it was such an opinion as would prevent them from giving the defendant a fair trial.
Of course I do not mean to say that, in every instance where a prospective juror declares that his opinion would not influence him as a juryman, the court should accept his statement as true. Each case must depend upon its own circumstances. The disposition of the matter lies in the sound discretion of the trial court; and the exercise of that discretion will not be disturbed, says this court in the Miller and Paolucci Cases, except where the discretion has been abused, — where there is absolutely nothing to sustain the decision reached. “The case must be one in which it is manifest the law left nothing to the ‘conscience or discretion of the court.’ ” Reynolds v. United States, 98 U. S. 145, 156, 25 L. ed. 244, 246. This cannot be said of the case before us.
*205Nor is there anything inconsistent between the conviction of the Stout woman and defendant’s plea of not guilty. The charge against her was for keeping a bawdyhouse, not for participation in the crime for which he was indicted. Her guilt and his innocence could stand together in perfect harmony. The showing made by the affidavit was entirely insufficient to establish that the jurors were not competent under the law to impartially try the defendant.
Assuming the jurymen were prejudiced against the defendant, he waived any right which he had to object to their sitting in his case. Queenan v. Oklahoma, 190 U. S. 548, 551, 47 L. ed. 1175, 1178, 23 Sup. Ct. Rep. 762; Alexander v. United States, 138 U. S. 353, 34 L. ed. 954, 11 Sup. Ct. Rep. 350; Thompson v. State, 109 Ga. 272, 34 S. E. 579. The overruling of the motions did the defendant no harm. His complaint is with regard to the action of the court in receiving the jurors as triers of his case, but he made no objection to this action at the time it took place, either by challenging the jurors for cause, or by peremptorily challenging them. “It is the duty of counsel,” says the Supreme Court of the United States in tlie Alexander Case, “seasonably to call the attention of the court to any error in impaneling the jury, * * * and in case of an adverse ruling to note an exception.” “Seasonably,” I take it, means at the time the action is taken from which the prejudice results. In the Thompson Case the court, speaking of the qualifications of the jurors, said: “In order to determine whether they were competent or not a remedy was afforded, not by challenge to. the array, but by challenge to the poll and each separate juror put upon his voir dire to ascertain his state of feeling toward the defendant before he assumed his public duty as a juror in the trial of the case. This was not done, and the partiality of the jurors was not questioned in any legal way, and it must therefore be held, in the absence of the exercise of his right by the defendant, that the jurors were competent.” This language is very pertinent to the case before us.
Moreover, it is a general principle, to which possibly there *206are some exceptions, that a party must exhaust all his remedies in the lower court before appealing to the court of review. 3 C. J. sec. 67; McLean v. Territory, 8 Ariz. 195, 71 Pac. 926, 928; Johnston v. Callahan, 146 Cal. 212, 214, 79 Pac. 870; Spies v. Illinois, 123 U. S. 131, 179, 31 L. ed. 80, 90, 8 Sup. Ct. Rep. 21. This doctrine is a wise one. It is in the interest of an expeditious and effective administration of the law, and should be enforced strictly by appellate courts. If it had been developed on their vow dwe that the the jurors could not fairly try the defendant, they would have been removed on a challenge for cause; for we must presume that the court would have ruled correctly. State ex rel. Delgado v. Romero, 17 N. M. 81, 124 Pac. 649, Ann. Cas. 1914C, 1114. The presumption is that courts will do “what the Constitution and laws of the United States require.” Shreveport v. Cole, 129 U. S. 36, 42, 32 L. ed. 589, 591, 9 Sup. Ct. Rep. 210. “In a court of error,” says Mr. Chief Justice Waite, “every presumption is in favor of the -validity of the judgment.” Boley v. Griswold, 20 Wall. 486, 488, 22 L. ed. 375, 376. The majority opinion proceeds upon the assumption that the court would have erroneously overruled a challenge for cause. This finds no warrant in the law.
And if the court had refused to reject the unfit jurors, defendant would still have his remedy by peremptory challenges, but he failed to use even that. I know it is said that when his counsel stated during the argument that he had exhausted ■ all his peremptory challenges, the government’s counsel did not deny it. What the government’s counsel said was that the record did not show that the defendant had exhausted his peremptory challenges. This is in harmony with correct practice, and should have been sufficient to destroy any effect which the statement of defendant’s, counsel might otherwise have had. We should not consider anything outside the record unless we are prepared to establish the loose and indecorous method of resorting to a debate at the bar, instead of the record, for the purpose of learning what- took place in the lower court.
The record reveals that seven of the jurors who sat in the *207trial of the Stout woman Avere members of the jury Avhich tried the defendant. For reasons already given I do not think that this disqualified them, but if it did, why did not the defendant challenge them? The record gives no anssvor, nor does it sIioav when the fact that they served on the Stout jury Avas brought to the attention of the court. For aught that appears the court may not have known anything about it until after the Arerdict, and, if it did not, it certainly committed no error in permitting them to remain. The appellate court “cannot presume error. It must be made manifest.” Cliquot’s Champagne, 3 Wall. 114, 140, 18 L. ed. 116, 119. See also Sturges v. Carter, 114 U. S. 511, 522, 29 L. ed. 240, 244, 5 Sup. Ct. Rep. 1014: Bear Lake & R. Waterworks & Irrig. Co. v. Garland, 164 U. S. 1, 25, 41 L. ed. 327, 336, 17 Sup. Ct. Rep. 7.
Furthermore, it seems to me that this subject is completely disposed of by sec. 919 of the Code. It says: “No verdict shall be set aside for any cause AA’hich might be alleged as ground for challenge of a juror before the jury are SAVorn, except when the objection to the juror is that he had a bias against the defendant such as would have disqualified him, and such disqualification Avas not known to or suspected by the defendant or his counsel before the juror Avas sworn.” [31 Stat. at L. 1338, chap. 854.] The objection now made to the jurors Avas well knoAvn to the defendant, and might have been a “ground for challenge” of each juror. About this there can" be no controversy. The question is to be raised by “challenge of a juror,” not by objections to the array, such as were made through the motions filed by the defendant. When we speak of the challenge of a juror we mean challenge for cause or peremptory challenge. This is the usual import of the phrase, and statutes are to be construed according to the “ordinary and natural signification” of the words employed, where possible. Mackell v. District of Columbia, 16 App. D.C. 301; Duehay v. District of Columbia, 25 App. D. C. 434. The Supreme Court of the United States dealt with this section in Johnson v. United States, 225 U. S. 405, 420, 56 L. ed. 1142, 1147, 32 Sup. Ct. Rep. 748, and sustained and applied it. The court in *208tbe majority opinion ignores tbis section, and gives it no effect whatever; yet I think it clearly forbids the granting of a new trial.
The next ground upon which a new trial is awarded is the refusal of the court at the close of the government’s testimony to require the prosecution to specify the two offenses upon which it would ask a conviction. In the light of the facts disclosed by the record, there was, I think, no prejudicial error in this. Before any testimony was introduced, the government announced that the offense charged in the first count was committed between February 23 and March 15, and the one laid in the second count, between March 15 and April 10. At the close of the government’s testimony it appeared that one of the offenses under the first count occurred in a certain hotel and all others in a named apartment hoiise; and that the offenses relating to the second count were committed in another apartment house between March 15 and April 10. This fixed the time and place of each crime with comparative definiteness, yet perhaps not sufficiently so if the quantum of evidence offered by the defendant with respect to certain of the offenses was different from that produced as to others. Then it might bo said with force that it was unfair to permit the government to postpone its election until it could select the crimes against which the weakest defense was made. But nothing of that kind could occur here, because the weight of the defense was the same as to each charge. Outside of testimony bearing upon the character of witnesses for the government, defendant produced none save his own, and that was a denial of all the offenses alleged. The government gained no advantage, nor did tho defendant suffer any prejudice by the court’s action.
Before the arguments to the jury commenced, the government specifically pointed out the two offenses for which it would claim a conviction. Defendant urges that this did not give his counsel sufficient time to prepare for the presentation of his case to the jury; but his counsel did not seem to think so at the time, for he made no application to the court for a postponement of the argument.
*209The time and nature of the election which should be made in a criminal case is largely in the discretion of the court, and its action in that regard will not be disturbed where it does not appear that injury might have resulted therefrom to the defendant. State v. Schueller, 120 Minn. 26, 138 N. W. 937, 938; State v. Hughes, 258 Mo. 264, 167 S. W. 529, 530; State v. Crimmins, 31 Kan. 376, 2 Pac. 574. The mere possibility of prejudice is not enough. Yeager v. United States, 16 App. D. C. 356, 358.
Defendant filed a motion for a new trial in which he assigned ten errors. He made no specific reference therein to either of the grounds upon which this court grants him a new trial, nor did it embody any assignment sufficiently definite under which to raise either question. Lincoln v. Sun Vapor Street Light Co. 8 C. C. A. 253, 19 U. S. App. 431, 59 Fed. 756; Oswego Twp. v. Travelers’ Ins. Co. 17 C. C. A. 77, 36 U. S. App. 13, 70 Fed. 225; Sovereign Camp, W. W. v. Jackson, 38 C. C. A. 208, 97 Fed. 382. 388. It appears, then, that he did not seriously believe in the lower court that the jury was unfair, or that he had been injured by the court’s failure to require an earlier oled ion. This suggests the thought that those contentions are now made, as was said in Johnson v. United States, supra, as a “makeweight.”
I think that sec. 874 of the District Code [31 Stat. at L. 3 332, chap. 854], and not sec. 316 of the Federal Code [35 Stat. at L, 1149] chap. 321, Comp. Stat. 1916, sec. 10,489], provides the punishment that should be inflicted for the crime of adultery, but I do not think that the question is ruled by the decision in Johnson v. United States, 38 App. D. C. 347; 225 U. S. 405, 56 L. ed. 1142, 32 Sup. Ct. Rep. 748. That case arose under chapter 11 of the Federal Code, wherein the language restricting the operation of the chapter is quite different, as the court points out, from that used to limit the operation of chapter 13, under which the defendant was sentenced. But this last-mentioned chapter declares that the crimes mentioned in it, among which is adultery, shall be punished as therein prescribed “except as otherwise expressly provided.” *210As observed in tbe opinion of tbe majority, it is otherwise expressly provided in sec. 874 of our Code, and, therefore, the sentence should have been under that section.
I have examined all the other assignments of error, and think they should be rejected as unsupported by anything in the record. The jury was lucidly and correctly instructed as to the law of the case, and the defendant had in all respects a fair trial. While the case should be remanded for sentence under sec. 874, a new trial should not he allowed.