| OCR Text |
Show IIKI. i.t In UiK i-U.-. at i-'i i a. tn . Jur.o I'.'ib, L?tTi -i ii'a. hiita Add Ireioa, wilo i- .M-tn ioI li. toll, :a on, : m o,bi n 1 diii 9 ?un.-al t ioI.Ij3l-o IQ t'i 17th ward. Tit 4(i. m t.l y, ,i.iuUj. Fnrri 1 ar4 invi-tt invi-tt to vtoa i. 'era io -,eai. iia.s. 'Jar BDiu.'f t-r.miisj tj u.ct u .fia id a ttiir rl.i ;Cow. BIud dJ riajai pipir p!mi oPX- THE REYNOLDS POLYGAMY CASE. Jndge Mi'Koau's Grand Jury not a LtigiU lihiuisltorlat Body. 1 h Third IHnlrU'l lunrt Ordered Or-dered to ilunnli tho Indictment Indict-ment n giilitMt Uvo. Itrj notl 1 Opinion uf thi Supi'eiua Court. ! I In tho en promo court of Utah territory, ter-ritory, June icrm, lS7o. Thn United Suits KepomUM.. opinion of the (ioorK-rt kVwiU, j Court. Appeal (rum the Thud district court, Hinvm:wt, Justice, divored the opinion nt the court. Tho iippellunt wm convicted of a violation ot tho statute of tho UniU-d States of against polypamy, Tho appellant a?sii;ns as iwm: this rejection ot evidence olVored by him to sh.nv th it plural or polyg.i mous marrUgo w.is part of his religion, rhis objection of tho appellant, w, as wo conceive, b.is.d upon neither reason, rea-son, justice nor law, and therefore we disanss it without further notice. The principal diU'ienltus in the ease arise in reference to the constitution ot the grand jury which found the indictment in-dictment upon which this conviction was had. Tho nuv-t important of iiiose objections to the gnind jury was that which had re fen nee to the number iu saury to constitute a log:il grand jury. This indictment Wiis fiu nd by u grand jury consisting of tuuny-three men. The appellant asvgna i. lis for errr and claims that tithvn w.is the proper number to con?lilule that Kily. Tne act of congress entitled an "Act in relation to anirts and judicial judi-cial officers in the territory of Utah," approved Juno -.'ii, 1S74, and wtiich is commonly styled the "Poland "Po-land bill," provides (in section 4) lor tho making once a year of a jury list vi two hundred nanus, I nun j which the grand and petit nines for the district court shall bo drawn; and it requires that when a grand or pelii jury is to be drawn for any term, the judge of the district court shall give pub-ic notice thereof, and shall preside pre-side at the drawing; and that the clerk shall put tno two hundred names on separate slips of paper and place lliein in a covered tvix and thoroughly mix and mingle them, and lint tliorniion tho United S'.aUs marshal shail Jraw from the " Ivix such number of names as may have previously btvn direcUvl by saii judge," the grand jury to bj drawn lir5t; that a venire h.li L-viue and t..e persoi.s whose names are thas dniwu shall t-e duly s'.immoiKd before the term of Court; and that the "jurors so drawn and summoned shall constitute con-stitute the regular grand and petit juries for the term for nil cases." It ; was under this act that the grand jury which Mind the indictment w.is procured. Let us, then, first consider how the law stood at the passage of that act. In the well known cao of Clinton r. Eugelhreeht (13 Wallace) the Supreme Su-preme Court of the United St.tUs, Alter referring to tho power ul tno Legislature as extending to rightful subjects of legislation, eay, "Thy mclhud ot procuring jurors, for tho trial of eases is a rightful right-ful subject uf legislation and the whole matter of selecting, impanelling impanel-ling and summoning juries is left to the territorial legis.itture;" and further fur-ther tint "the action o( the legislatures legisla-tures of all the tern tori fs has been in conformity with this construction;" and still further, in another part of the opinion, "that the whole subject maitorof jurors in the territories is-committed is-committed lo territorial regulation." ! The general jury laws ol Hie United Stiles are no: by express words made applicable to UrriU ria courts, and ii tin v are tn le eouanh rol as applic able thereto, it can only be so upon the theory ti.at these territorial district dis-trict courts .ire United States courts. Iu the case ol Clinton rj.Engelbreeht referred to. Chief Justice Cnase, in ppeaking of such a theory and of the action of the territorial district court in selecting juriws under the United States jury laws, said, "We are of the opinion that the court erred both in it theory and in its action;" and iu speaking, iu the same cas.e, of the judiciary act of 17$'J, ho says, "Tno regulations of that act iu regard to the selection of jurors have no refer ence whatever to territories. Tney were framed witii reterenca to the states and cannot without violence to the rules of tho construction be made to applv to territories of the United States. For similar reasons no tct of congress respecting juries in United Suites courts, e.iactcd subsequent to the act of I7fi, could bo made to apply lo the territorial courts, unless by tome express provision to that ctleet. It is not shown, nor do we believe that it is claimed, that any such provision exists. The p"wilion of the supremo court of the United Slates, so broadly laid down, as beiore staled, is, as wo conceive, con-ceive, well supixrted by tho reasoning reason-ing of the same court in the subsequent subse-quent ense of Hornhucklo vs. Toombs (IS Wall). When ihc act of congress termed the "Poland Bill" was passed, the territorial jury laws and tho United Uni-ted States jury laws were tho same as when the decisions of the supreme court of the United States were rendered. ren-dered. Wo cannot therefore, in the face of the opinion of tho highest tribunal tri-bunal of the nation to the contrary, nay that, at the passage of the act ol congress referred to, the general jury laws of tho United Slates were applicable applic-able to territorial courts. Tho question ques-tion then arises, did this act of congress con-gress change tho rule? It certainly changed the rule so far as tho two arts are inconsistent. It cannot be said that that act, however, Bxea the number necessary lo constitute a grand jury. If tho number drawn upon the order of the judge fixes tho number, t':en it likewiso fixes the number of the petit jury. Tho lan- 1 guageiealiko in respect to both. If this construction be correct, a grand jury of thirty or any other number, le.-s than two hundred, could bo a legal grand jury in this territory. Could congress ever have intended any such tiling ? It is but reasonablo to suppose that if congress had in- leiuhd to have fixed the number, it would have said so, and not left it to vague suppvMiion. The purposo evidently evi-dently was to allow tho pulse to fix the number neecsjary to bo drawn, out of which lo mako tho jury, the jury to he of tho number as then established es-tablished by law. It is claimed that if (he United States jury law bo not applicable, nor tho number of the jury be allowed lo bo lixeil under tho "Pcland hill," yet that the act went far enough to repeal re-peal the territorial law in respect to the number of the grand jury and aiio wed the common law to rise up lo control the matter. This position, of coun-e, can only be maintained upon the ground that tho repeal is by I implication merely; such repeals are 1 nut favored and will not bo declared to exist except in case of inconsistent or incompatible enactments. We are unabio to perceive any inconsistency or iiicnrnpulibiliiy tetwcen the terri torial statute, fixing the number of the grand jury and this act of congress. con-gress. The territorial st ilnle seem rather to till and supply a place not covered by the act of eongro.-s. A law which declares tho numlier necessary ne-cessary to constitute a grand jury is not iiuMnsiutont with a law which merely tells us how to gel the number of jurors out of which to eoinpaso tho jury. The laws aro entirely reconcilable recon-cilable and consrstent, and it is the duty ol the enurt to declare that Kith dt Ihein shall stand. Sii far in the act uf congress goes it becomes exclusive iw to all that it propei ly embraces, and it congreoi is to be considered us having in thia act leg is I it toil uj'ou the. number of I ho grand jury, then, of course, tho territorial ter-ritorial ligishitnro is precluded from doing f.o. If that net supercedes the lerritoiial law now on the statute Umk a-" to the numl er of tho jury, it would likewise exclude any future legislation upon tho subject by the territorial legislature, lint iho Supreme Su-preme court ul the United Stiles say tli.it full authority concerning this , (iiaiter was given lo ll e territorial legislature by the "Organic, a t." Wo cannot bay, tliei el'. re, that this positive authority given by the "organic "or-ganic act" is negative by implication, when the act of congress, does not oin-braco oin-braco the oii!l. Under all proper rules of construction, construc-tion, then lore, wo aro forced to the conclusion thai we inusl rem 'it t i the territorial statute to aseerl un what Is tho proper number lor a grind jury. That statute declares li teen lo be the proper number and does not authorue a grand jury ut any niuer nun her. Tlie grand jury which fuui 1 the indictment in t. e ca.-o before be-fore us, having been Ci-inn ! d of twenly-l!.ivo members m'ead ul lilUeii, was nut such a grand Uiy as the law requins, and by i:u'. being properly constituted, its .ici i m !e-came !e-came vitiated. 1 hero are some iiiiiht points in the case which perhaps we ishou.d notice. One of Iho partt s appearing as grand jury stated, upon tv.n ran ioe, in answer lo a u -11.11 by the prosecution, t!i U he h .d e uvieu-lions uvieu-lions scruple mut indieli g per-s.Mi5 per-s.Mi5 for M -1 ol the law .f the UiiHl1 S it.'!, if In '.-2 .u u;:-t olv-g.tmv. olv-g.tmv. 1';. t j ... t i.e , e:t.il- lellg. d f.T .Um-, l e '.-ih.-uge MlS- t;On.d a: .! p ::y .!.- h .rg d ai.d not mv.tii up :i I e rand jiry. Tins actum ol lhr .Miirl, 111 excluding tills parly fm.n I'm ure, is .ise-ineti its emir. A pi r-) win. up.ni his Con-cience could not th.d in hcl.ueiiL-' under a law, Wini'd nut m ike a gmid juryman1 toeufurce li e l.i's. nd i:.t.l meni-j Ivrs or a majority ul a gr.nid jury had like scrtiplis, th.il :uu unt ,.i:d v n- erable bfy w.ni,,l nut only become uselet-a, but ii's 1 an alis ilule hii-der--nice to liie enlurcenient id the law. Apirty hav.ng these consciert on-scriijl on-scriijl - would, if sv.orn up 'ii tlie grand mry, ha'.e lo v.niiiit in.ir.il pri.jury. He, up- 'U oat: 1, ;uln.:ti that his omisi :e:ice I irbiJs his a:iling in the enl-jrci mvi.i of a sj e 'ilic i uv, ! yel as a gr.11: I juryni m he toiiars lu go counter liicret.i, ;:i.l 1 nl-irce the law. S'leh a pi.ily w.m'd be wholly ineom pi tent lo sit utui a pi-tit jury. ! And liie e tme ground would exclude ! him from the grand jury. (Whar-j ion's Am. Cnm. I. sec. hi'J, Burr's1 triil, see ! We iliink there v.i 1111 err-T iu l.-e 1 exc u-:' n of 1! s" man from ihe jury, t It 1 laiim-d lliat liie draw iug and , BUinin.'innt; of.-oine uf ll.e grand ju . rors her tne beginning of the term was 1 r nr. Si) Ur as liiodrawing and suinmi'iiiiig of jurors after the nun:- ' ler of fifteen had Ken obtained, it was error, but so long as thai number ' wtu iiil t xeeeded on tho jury there! w.us no error. It, from any cause, 1 the jurors summoned prior 1 .1 ine : term do not appear, liie court is au-1 tho! -zed, under thu act referrtd lo. I to have such additional numlier sum ! moutd :w the Cuurt may deem nreea-sary nreea-sary to complete t ie panel, if those thus dra n do iot appear, the court t n.'t compelled lo delay indefinitely, Uil can orb r the dra-ing of s'.ill a further numlier. if necessary, to com plete the panel. II is likewise asserted that one of j the jurors did not pay Uses. He had taxable property, however, and was ready to pay taxes. If he was not ns I sessed, and not thus allowed to pyl laxew, il was not his fault, and he ! eaniii.t be excluded Irom the jury ' ln'X for failing to pay tares. j All of liie objections icspeclitig lh constitution of tho jury were raised 1 by the appellant in pleas in abate-j meut. I The judgment of the court below is reversed, and the cause remanded lo the court below, with instructions lo set tho verdict aside aud quash the indictment. Lowi:, C. J., concurs. Emkkios-, J. The only doubt in my mind in connection with this case was iu reference to the constitution of the grand jury, but upon a more critical examination of the suhee'- I very cheerfully concur in the result arrived al. |
