Show IN FAVOR OF HE FIELD < Judge Zane Holds That the Special Plea Is Good V SUBJECT TO THE T LAWS The Territory Has No Jurisdiction in the Case The Military Court Has Jurisdiction to Try Such Cases and a Man May Sot Be Twice Tried for the Same Offence Yesterday morning Chief Justice Zane handed down his decision in the case of the demurrer to tMfe special plea entered by Private E C Sheffield to the charge of murder in the second degree with which he stands indicted for the shooting of Joe Leonard at Fort Douglas The effect of the decision de-cision is to sustain the special plea his honor holding that the territory has no jurisdiction and that the defendant de-fendant should be prosecuted for the offense charged under the laws of the United States Also that the laws of the United States give a military court jurisdiction to try a soldier for murder committed in time of peace and authorizes au-thorizes the court martial to impose the same punishment as a civil court and hence a man after having been tried by the military authorities cannot can-not be tried by the civil authorities for the same offense ofense Assistant District Attorney Howat entered an exception to the ruling of the court Attorney Variah of counsel for the defense said he desired to interpose a similar plea in the case of Sergeant Linse who was a codefendant with Sheffield in order that the same ruling might be applied to his case The court assented and Linse will be brought into court this morning The decision is very exhaustive and reads as follows The defendant Sheffield was indicted on the 25th day of September last under un-der the laws of the territory of Utah for the crime of murder To the indictment he has filed a special plea in which he avers that the acts constituting the alleged offense were committed within the Fort Douglas military reservation And he also avers that he was in the military tary service of the United States at the time and was tried therefor and acquitted ac-quitted by the judgment of a general court martial lawfully convened The prosecution demurs to the plea and alleges that this court has jurisdiction jurisdic-tion to try the defendant notwithstanding notwithstand-ing the offense was committed in the reservation mentioned and further that the court martial mentioned had no authority to try him for the offense described in the indictment The first question for consideration and decision is must the defendant be prosecuted and tried according to the laws of the United States prohibiting and punishing murder or the laws of the territory forbidding and punishing the same crime crme The 6th section of an act of Congress to establish a territorial government for Utah in force September 9 1850 declares that the legislative power of the territory shall extend to all rightful right-ful subjects of legislation not inconsistent incon-sistent with the constitution and laws of the United States But no law shall be passed interfering with the primary disposal of the soil no tax shall be imposed upon the property of the United States nor shall the lands or V other property of nonresidents taxed higher than the lands or other property of residents The land embraced in the Fort Douglas reservation was reserved and set apart for military purposes September Septem-ber 6 1886 in pursuance of chapter 104 vol 10 United States statutes at large Though the title to the land embraced in the reservation remained in the United States the laws enacted I by the territorial legislature extended over it The question is did the laws of the United States extend over the reservation reserva-tion after the president reserved and set i apart for military purposes The constitution provides that Congress shall have power to exercise exclusive legislation in all cases whatsoever over such district not exceeding ten miles square as may by session of particular par-ticular states and the acceptance of Congress become the seat of the government gov-ernment of the United States and to exercise like authority over all places purchased by the consent of the legislature legis-lature of the state in which the same shall be for the erection o f forts magazines arsenals dockyards and other needful buildings Article 1 see S Considering this provisIon the Supreme Su-preme court of the United States said The necessity of complete jurisdiction jurisdic-tion over the place which should be selected as seat of government was obvious tion to the framers of the constitu tionOf Of the portion of the clause under consideration giving the right to exercise exer-cise exclusive legislation over all places purchased by Consent of the legislature leg-islature of the state in which the same shall be for the erection of forts magazines mag-azines arsenals dock yards and other needful buildings the same court said further that The federalist observes ob-serves that the necessity of this authority au-thority is not less evident In another part of its opinion the court ussd the following language that when the title is acquired by purchase by consent of the legislatures of the states the federal jurisdiction is exclusive of all state authority This follows from the declaration of the constitution that Congress shall have like authority over such places as it has over the district which is the seat of government that is the power of exclusive legislation In all cases whatsoever Broader or clearer language lan-guage could not be used to exclude all other authority than that of Congress and that no other authority can be exercised ex-ercised over them has been the uniform uni-form opinion of federal and state tribunals tri-bunals and of the attorneysgeneral Fort Leavenworth R R Co vs Lowe 114 U S 525 When the federal government purchases pur-chases land for military or other of the purposes named with the consent of the state in which it is located i acquires not only the title with such rights of occupancy and use as usually accompany it but the power of exclusive exclu-sive legislation and political authority over it as well When a person conveys land situated in a state to the United State he does not transfer with it the political power of the state over it Such legislative or political power is not his to dispose of it belongs to the state and the state cannot be deprived of its right without its consent Both governments are sovereign with respect to the powers they possess While the ultimate source of the powers of government are in the people of the United States they have erected a national government govern-ment and enumerated in its constitution constitu-tion such of them as they consent to trust it with The remainder within certain limitations enumerated Jn the same instrument they have left in the hands of the people of the respective states And the latter have Constructed Construct-ed state governments with such limitations limit-ations upon their political powers as such people have thought best to impose Im-pose So that the United States as to the powers enumerated in the Constitution Consti-tution and those necessary to their exercise is sovereign and the respective I respec-tive state governments within the limits imposed by their constitution and the Constitution of the United I States are also V sovereign neither has absolute sway But no part of the political power La u n I C conferred upon the one or within the limitations imposed by the other can be taken away without its consent The territories however are not states and as to them the paramount legislative legisla-tive authority is in the United States That government had the right to consent con-sent that the legislative and political power which the territory of Utah was permitted to exercise over the Fort Douglas reservation might betaken be-taken by it The title of the land had remained in the United States and when the president set I apart as a military reservation the legislative I powder over it was resumed by the United States and it ha since had the power to exercise exclusive legislation over it Such power became as exclusive exclu-sive as i would have been had Utah been a state and the same land had been purchased with It consent Assuming the facts stated in the plea the court holds that the defendant should be prosecuted for the offense of the United charged under the laws Unied States Sttes This conclusion renders it unnecessary unneces-sary to decide the second point made by the demurrer and submitted But in view of the fact that the same trial by the court martial will be interposed to a trial upon an indictment for murder mur-der under the laws of the United States the court will consider and decide de-cide i The provision of the fifth amendment amend-ment to the Constitution relied upon by counsel declaring that No person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury does not apply to cases arising In the land or naval forces The plea describes a case that arose in the military forces of the United States Congress possesses the power to confer on military courts the exclusive jurisdiction of such cases and such a trial would be due process of law The question remains Do the laws of the United States give a military court jurisdiction to try a soldier for murder committed in the time of peace The 59th Article of War is I as follows When any officer or soldier sol-dier is accused of a capital crime or of any offense against the person or property prop-erty of any citizen of the United States which is punishable by the laws of the land the commanding officer and the officers of the regiment troop battery company or detachment to which such person so accused belongs are required except in time of war upon application duly made by or in behalf of the party injured to use their utmost endeavors to deliver him over to the civil magistrate magis-trate and to aid the officers of justice in apprehending and securing him in order to bring him to trial If upon such application any officer refuses or wilfully neglects except in time of war to deliver over such accused per pr son to the civil magistrates or to aid the officers of justice in apprehending him he shall be dismissed from the service R S U S p 235 This article requires the officers named to surrender the officer or soldier sol-dier committing the offence upon application ap-plication duly made to the civil magistrate ma-gistrate in order to bring him to trial The 62nd article provides that All crimes not capital and all disorders and neglects which officers and soldiers sol-diers may be guilty of to the prejudice preju-dice of good order and military discipline I disci-pline though not mentioned in the foregoing articles of war are to betaken be-taken cognizance of by a general or a regimental garrison or fieldofficers court martial according to the nature and degree of the offense and punished pun-ished at the discretion of the court R S U S p 236 Section 5339 R S declares that Every person who commits murderS murder-S S C shall suffer death Congress has not authorized a court mata in time of peace to try a soldier sol-dier accused of murder I the soldier sol-dier is accused of manslaughter or other crime not capital he may be tried by either the civil or military court but the question remains if he has been tried by one may he be tried by the other The H7th article p 239 Id provides that No person in the military service ser-vice shall under the sentence of a court martial be punished by confinement confine-ment in the penitentiary unless the offense of which he may be convicted would by some statute of the United States or by some statute of the state territory or district in which such offense of-fense may be committed or by common com-mon law as the same exists in such state territory or district subject such convict to such punishment This article authorizes the court martial mar-tial to impose upon the convicted soldier sol-dier or officer the same punishment provided for imposition by the civil court for the protection of society When it was enacted it must have been deemed sufficient by the lawmaking law-making pwer to give that protection The law protects society by the example exam-ple of punishment and one example of the same man for the same offense would seem to be all that was contemplated contem-plated by the Constitution and the lawmaking law-making power In a case like the one under consideration The demurrer to the plea is overruled over-ruled |