Petitioners, together with Anthony Horton and Louis Kaplan, were found guilty upon an indictment charging them with a conspiracy to defraud the United States under Section 37 of the Criminal Code, R.S. § 5440, 18 U.S.C. § 88, 18 U.S.C.A. § 88. Judgment was entered on the verdict and Glasser, Kretske, and Kaplan were sentenced to imprisonment for a term of 14 months. Roth was ordered to pay a fine or $500 and Horton was placed on probation. On appeal the convictions of Glasser, Kretske and Roth were affirmed. We brought the case here because of the important constitutional issues involved. 313 U.S. 551, 61 S.Ct. 835, 85 L.Ed. 1515.
Glasser was the assistant United States attorney in charge of liquor cases in the Northern District of Illinois from about March 1935 to April 1939. Kretske was an assistant United States attorney in the same district from October 1934 until April 1937. He assisted Glasser in the prosecution of liquor cases. After his resignation be entered private practice in Chicago. Roth was an attorney in private practice. Kaplan was an automobile dealer reputed to be engaged in the illicit alcohol traffic around Chicago. Horton was a professional bondsman.
The indictment was originally in two counts but only the second survives here as the Government elected to proceed on that count alone at the close of its case. That count, after alleging that during certain periods Glasser and Kretske were assistant United States attorneys for the Northern District of Illinois, employed to prosecute all delinquents for crimes and offenses cognizable under the authority of the United States, and more particularly violations of the federal internal revenue laws relating to liquor, charged in substance that the defendants conspired to 'defraud the United States of and concerning its governmental function to be honestly, faithfully and dutifully represented in the courts of the United States' in such matters 'free from corruption, improper influence, dishonesty, or fraud.' The means by which the conspiracy was to be accomplished was alleged to be by the defendants' soliciting certain persons charged, or about to be charged, with violating the laws of the United States, to promise or cause to be promised certain sums to be paid or pledged to the defendants to be used to corrupt and influence the defendants Glasser and Kretske, and the defendant Glasser alone in the performance of their and his official duties.
All the defendants filed a motion to quash the indictment on the ground (a) that the grand jury was illegally constituted because women were excluded therefrom and (b) that the indictment was not properly returned in open court. Glasser, Kretske and Roth also filed demurrers to the indictment. The motion to quash and the demurrers were overruled and petitioners here renew their objections.
On July 1, 1939 two acts of the State of Illinois providing for women jurors became effective. Section 275 of the Judicial Code, 28 U.S.C. § 411, 28 U.S.C.A. § 411, provides in substance that jurors in a federal court are to have the qualifications of jurors in the highest court of the State. Petitioners contend that the grand jury, composed entirely of men, and summoned on August 25, 1939, was illegally constituted because at the time it was drawn Illinois law required state jury lists to contain the names of women. However, in 17 of the 18 counties comprising the Northern District of Illinois the county boards could wait until September, 1939, to include women on their jury lists. Of course, for women to serve as federal jurors in Illinois it is not necessary that their names appear on a county list, but we are of opinion that, in view of the short time elapsing between the effective date of the Illinois acts and the summoning of the grand jury, it was not error to omit the names of women from federal jury lists where it was not shown that women's names had yet appeared on the state jury lists.