Show AN ILLEGAL SOME soun difficulty diffin alty was experienced yesterday in em paneling a grand jury for the present term in the third district court only ten jurors were accepted while thirteen were rejected and ten more names were drawn that the panel might be filled up the challenge made by district attorney sustained by judge hunter was on the ground round that the jurors believed in the estrine doctrine of plural marriage as set forth in the revelation to joseph smith contained in the book of doctrine and covenants of the church of jesus christ of latter day saints on acknowledging their belief in that doctrine the jurors were excluded from the panel today to day by the sar say same ne course a strictly non momon grand jury was obtained in sustaining this challenge it is thought judge hunter was inconsistent neon with his rulin ruline ruling on a former occasion casion when he lie declined io 10 exclude mand m hand and jurors who expressed their belief in the doctrine of plural marriage but bat we do not know that this view is correct on the previous occasion the district attorney was to whether he expected any prosecutions for poly polygamy amy and replying that he could not say that he be did judee hunter declined to sustain the challe chalie challenge of grand jurors on account of their belief the challenged persons too expressed their willingness to find indictments according to the law and the testimony irrespective of their private beliefs on the present occasion it is to be p resumed presumed that prosecutions for tor polygamy are expected and that the district attorney wants a grand enry which methinks bethinks be he thinks is likely to indict and so makes his challenge and is sustained this time by the court we do not think the exclusion of the jurors on this account is hawf lawful ua but the jud judge ge is probably not inconsistent with theaon the former ruling in this matter for the reason we have stated the only onla law that we are acquainted with under which this challenge of the jurors could be made with any show of reason is the fifth section of 0 f the edmunds act which provides that in any prosecution for 1 bigamy agamy or ora unlawful cohabitation cohabit atlon under tinder any statute of the united states it shall be sufficient lelent cause of challenge to any person drawn or summoned a as s a juryman or first that he ile is or has been living in the practice of b bigamy po polygamy or unlawful co cohabitation habitat ifa on wita with in more ore than one woman or that he is or has been guilty of an offense punishable bv by either of the foregoing sections or by section nifty fifty three hundred and fifty two of the revised statutes of the united states or the act of july first elgh eighteen teen hundred and sixty two entitled I 1 an act to punish and prevent the practice of polygamy in the gue territories of the united states and other places and disapproving and annulling certain acts of the legislative assembly of the territory of utah or second that he believes believe s it right for a man to have more than one living and un divorced divo diso rood wife at the same time or to live in the practice of cohabiting with more than one wor won woman nail nati and any person appearing or onn off offered ered as a juror br or and challenged on either of the foregoing grounds may be questioned on his oath as to the existence of any such cause of challenge and ana other evidence may be introduced bearing upon the question ues aes raised by such challenge ana and this thi question shall te ie tried by the court buffas to the first ground of challenge before mentioned the person clu ciu challenged lene iene ed shall not be bound to answer if he shall say upon his oath that he declines on the ground that his answer may tend to criminate himself and if he shall answer as to said first ground his answer shall not be given in evidence in any criminal prosecution against him for any offense named in sections one or three of this act but if he declines to answer on any ground he shall be rejected as incompetent it should be observed that the whole of this section applies only to trial luries it is in any prosecution for bigamy polygamy etc that these challenges are made lawful The there can be no prosecution for these of fences before a petit jury until an indictment jus jut lias has by a grand jury and this caus J f challenge ge can only apply in a prosecution therefore it Is not applicable to the paneling em of ef a grand j jury ury but only to d a petit j jury ury drawn f for or the purpose of trying a case of bf bigamy polygamy or unlawful cohabitation there is no law which authorizes the exclusion of a grand juror from the panel on account of his belief or his practice bof of plural marriage or anything akin into to it but it has been tile the custom for the federal courts and federal oil officers leers in utah to make mak elaw law occasionally when statutes did not exist suitable dor for for their purpose challenges to petit jurors on account of their bellef belief were vere made and allowed in the miles allies case long lono before the edmunds law was en enacted act ed there was waa no law to sustain it then or why was the section we have quoted made part of th the eEdmunds edmunds act yet it wasal wasai was allowed in practice without law just as the challenges permitted in the third district court yesterday were permitted it may be asked would it be proper to place men on a gran grand d J jury ury uro when it is expected that indict indictments ments for polygamy will wiil V be presented who are anem tae in selves believers in and practise rs of polygamy we answer that the olis dis qualification q U if any would be in the disposition of the grand rand jurors to nize the law and the binding nature of f their oath in relation to it As grand jurors they swear to act according to law and the evidence brought before theland the mand if there is no proof that they will violate their oath there is no reason why they should be excluded from the panel A man may conscientiously y believe that morally and religiously it is not wrong to have two living an and wives at the same time ti baud aud and yet being sworn to find accor according to law and iM evidence dence he be might feel it his is duty to bring in an indictment against a person 1 in I whose case there were reasonable proofs of a violation of the law his private belief is one thing his sworn duty cluty under the law is another and different thing it should be remembered in this connection tion as a matter of fact that all indictments that have ever been found a against ga dinst polygamists have been found by gaii nail grand ra ii juries partly composed of per who believed in the rightfulness of plural marriage they acted according to their sworn duty the conflict between the word of the lord and the law of inan man was not of their making and they were not relon responsible sibio sIble for it they believed in the former but were sworn to act according ta to the latter and they acted in accordance with their oath and their tue ir duty as grand jurors in a trial for murder it has been long iong held as a valid ground round of challenge hall halie halle e against that he did not believe belleve in capital punishment unish ment but we ask is it customary to challenge grand jurors brors on any such ground we if grand jurors may be examined on oath in regard to their belief la in marriage why not examine them in regard to their belief in capita punishment and in the various penalties for the different c crimes rimes on which they are expected to find indictments if the rule good case why not in another and to brin bring this down to the present issue we e ask why did not the district attorney question the non 11 mormon Ni ormon grand jurors in regard to their belief in or practice of unlawful cohabitation read the law any person chois or has been livin living ginlun in unlawful cohabitation with horihan more than one adwan ll 11 is subject to the same challenge en c as one who is or has been living in the practice of bigamy or polygamy and it is as lawful a cause of challenge chall chali ene cne cue that thata a juror believes beli dell exes exea ic rig right ht to live in the practice of cohabiting cohabit i with more lnore tuan on one ona woman as to b believe lese iese it right cigut to have bhore more mone wives than one let the district attorney and the court carry out the law if they challenge a 1131 mormon ormon on his belief in or practice of plural marriage mar let them challenge non 11 INform mormons cormons Mor mons ons on their belief in or practice of cohabitation with more than one woman outside 0 of the marriage relation for if a juror has been guilty of an off offense ense punishable by either of sections one to four of the edmunds act section five says he may be challenged and one of the of fences named is if V any male person in a territory or other place over which the united states have exclusive jurisdiction hereafter cohabits with more than one woman 11 therefore in a trial for bigamy or polygamy a gentile petit juror ought to be examined as to his practice of this of fence equally with a mormon petit juror on his practice of plural marriage and if it is lawf lawi lawful ua to challenge a mormon grand juror on the question of plurality of wives it is equally lawful and just as proper and pertinent ert ent to challenge a gentile g grand nd juror in reference to cohabitation with wilh ith more than one woman we consider the grand jury now being paneled em an unlawful body itis it is not organized according to law persons have been excluded whom the law does not exclude so called indictments framed by such a grand jury will not be legal indictments the question ought to be tested perhaps it will be in any important case that can be carried up to the higher courts this ought to be made one of the ground grounds s of appeal after it has been argued in the lower court on a motion to quash the indictment W we c bould would arv like to hear the arguments than can be advanced adva adv iced alced to sustain the action of the district attorney and the court to lean oh what law they predicate their couse coune co use meanwhile ii if this is to be the gratice pr pra atice tice let the principle be extended as ar as the edmunds law so plainly in deates inc |