OCR Text |
Show THE "PENITENT" COURT. As everything connected with tho present trial of President Ifoung will be eagerly sought by the great people, we present this morning the plea in abatement of tho indictment. As it was not argued, no idea has been previously pre-viously given to the public of the points made by it. The motion to quash has been very fully presented in the arguments argu-ments of counsel on the case. Tho following is the plea in abatement: Tito Territory of Utali In the Third District Court of said Territory. Regular September Term Thereof A. D., 1S71. Hon. James B. McKean, jadgo. The People of iho United ' Stales in (ho Territory of I Utah, -against I Prigham Young, Sr. J And the said Brigham Young, Sr, who is complained ol'forUiocrimeoopcnly, and notoriously, lewdly and lasciviously associating and cohabiting with women not being married to them, in his own proper person cometb into court and having heard the complaint read, says: That lie can only bo indicted for the criuio aforesaid by a grand jury duly seleeted, drawn, summoned and em-paunclled em-paunclled according to the laws of the Territory of Utah; That said grand jury by whom said pretended indictment was found was not drawn according to said law; but an open venire was issued by order of the lion. James B. McKean, judge of the said 3rd judicial district court which order was in words and figures as follows; to wit: "To Win. S. Walker, Esq., clerk of tha 3rd district court in and for the Territory of Utah. Sin It is hereby ordered that you issue to the United States marshal for the said Territory a venire commanding command-ing him to summon from the body ol' the 3rd judicial district of the - said Territory eighteen good and lawful men to act as petit jurors, and twenty three good and lawful men to aot as grand jurors, at a session or term of the said court to be held in the court room in Salt Lako City on Monday tho 18th day of September Sep-tember instant. And that you make the same returnable then and there at 10 o'clock in the forenoon of that day, and hereof fail r.of. Witness my hand at Salt Lake City this llth day of September A. D., 1871. - Jamks B. McKean, Judge of the 3rd district court." Which said order was endorsed as follows: "Order received and venires ven-ires issued Sept. llth, 1871. War. S. Walker, Clerk." That said Wm. S. Walker, olerk of said court, issued a venire on said order in words and figures as follows, viz: j "District court, third judicial district, dis-trict, Utah Territory. Regular September Sep-tember term, 1871. Hon. James B. McKean, judge. Territory of Utah, ) County of Salt Lake, J 83 ' To M. T. Patrick, United States marshal for tho Territory of Utah, greet in l': ruuVivTinrrj wmaranuuu m btim- mon twenty-three good and lawful men, residents of tbo third judicial district, to be and appear at the United States court in Salt Lake -city,- on Monday, the lS:h day of'Septoinber inst., at 10 o'clock, a.m., to servo as grand jurors tor the third judicial district of tho Territory of Utah. Hereof fail not, and make due return of this venire with tho panel thereon endorsed. "Witness the Hon. Jas. , i B. McKean, judge, and . f I the seal of said oourt at : j S1.AL. j- SatLlko ci(yi thifl ,uh - . ' day of September, 1871. : Wat. S. Walker, Clerk." That said venire was delivered to oueiM. T. Patrick, United States marshal, mar-shal, and that he, the U. S. marshal, selected and summoned the following named persons by virtue of said writ of venire; the return of said marshal being in words and figures following, to-wit: "i hereby return the within venire, having summoned from the body of the third district of Utah the following named persons to serve as grand jurors: t Sharp S. Walker 2 Samuel Kulin 3 J. Milton Orr '4 Clmnncoy 6. Nichols 6 Churlus L- Lhihlor C Hiram B. Clawsxn 7 EH.L1 B. Zabrick o S J nines Townsond 0 Edwin D. H'oulloy 10 Allrod S. Gould lLl"raulD Clift is J 1'. Miller 13 (i. L. T. Harrison 11 U.-j. Q. Cannon 1Q Christophar Du.lil 16 .1 .m-s P. Pago 17 Jtues JUllhewa IB t i.jk tturlburt 10 Sanmel ILwo 2J Umrloa Nowbalt . -il Nolson Lawrence ti (Juries Trowbridge Si Kdwnrd Hold M. T. Patrick, U. S. Marshal. . Sept. 18, 1871." . That said jurors wove called by the clerk of said court on the I8th day of September, 1871, in open court, and the following persons answered to their names, viz : Sharp S. Walker, Samuel Kahn, Alfred S. Gould, J. T. Miller, Chauncey C. Nichols, J. Milton Orr, Elias L. T. Harrison, Geo. Q. Oaqnoo, Jauics Townsend, Hiram b. Clawson, Christopher Diehl, James P. Page, James Mathcw-sou, iVrank Ilurlhurt, Samuel Howe, Charles Newboldt, Nelson Lawrence and Edward Iticd, Elias B. Zebriskie, That the following wcro excused : Sharp S. Walker, fcianiucl jtahq, J. Milton Orr, Elias B, ijebriskio, Christopher Chris-topher Diehl, Nelson Lawrence, Edward Ed-ward Kied, Alfred Gould, George Q. Cannon, James Townacnd and Hiram B. Clawson. Itwasthon orjeredby the oourt that talesmon be summoned to fill out said jury; when the following persons were selected and summoned promiscuously from the body of tho county by tho United States marshal as talesmen and answered in court, via; Charles Heid, Clayton L. Haynes, Hugh White, Edward Preble, James M. T)ay, Wm. S. Woodhull, William M. Johns, Alphonzo R Tildon, John W, More- i house, Jacob lfingier, J. B. Meadcr Ezra 0. Chase, John fij, Wallace) James W. Hamilton, Geo. W. Bost-wick, Bost-wick, Thomas Carter and John Cuo-nington. Cuo-nington. Tho following talesmen were then excused: Geo. W. Bewick, Thomas Carter and John Cunningtoq, ' The following persons wore then empaneled, em-paneled, sworn and charged as a grand jury, to wit: Samuel Howe, Chauncv C. Nichols, J.T. Miller, Ellas L T Harrison, James P. Pa&0) Jaines Matthcwson, Prank 'Hurl hurt, Cnarles Newboldt, Clayton L. Jlaynos, Much White Kdward Preble, James M Day, William S. Woodhull, AVm. M Johns, Alphonzo P. Tilden, John' W Morehouic, Jaoou Engler. j. Meader, Lira 0. Chase, John M: Wailaue, Charles Held and James W. Hamilton; and constituted the grand jury by whom the indictment was lound and presented in this case. That said jurors were selected by the United States marshal aforesaid instead in-stead of being selected; ;in accordance with tho Territorial laws. That they were summoned by llie said Umtid States marshal, and not ; by cither the .territorial marshal or j sheriff, as required by said Territorial j law. j That eaid jurors and talesmen were ; selected, chosen, designated and called i by said United States marshal pro-1 pro-1 miscuously, and not by any drawing or i ballot, as prescribed by the laws of , said Territory, and in contravention of each and every section of the laws of : the paid Territory prescribing the man-i man-i ncr of drawing, selecting and obtaining obtain-ing jurors to servo in tho district 1 courts of said Territory. That said jurors and talesmen were I not selected, summoned or called in accordance with the provisions of any act of congress of tho United States, I or in accordance with iho practice or i rules of any court of the United States, 1 or in accordance with any rule of this j oourt. That one Charles Reid had been summoned, attended and served as a juror in this court at the September term, A.D. 1S70, and within two years prior to the timo said grand jury by whom the indictment in this cauo was found, was empanelled, he, tho said Charles Reid, being the same person above named, and who was empanelled, empan-elled, sworn and served on the said 5 rand jury by whom the indicment erein was presented, contrary to the act of congress entitled "An act to provide for the compensation of grand and petit jurors in the circuit and district dis-trict courts of tho United States, and for other purposes." Approved July 5 th, 1370. That ono James Matthewson and one Elias L. T. Harrison were om-paneled om-paneled and sworn and acted as members of said grand jury in finding tho indictment in this case: and that said James Matthewson and Elias L. T. Harrison wcro never selected or summoned to servo on said grand jury by any one or in any manner, as appears ap-pears from tho records in this court. That one George II. Maxwell was present before said grand jury at the time of finding said indictment; that said Georgo R. Maxwell was only present in the capacity of deputy United States district attorney as appears ap-pears by the records of this court to tho legality of which appointment aforesaid defendant denies was not sworn, or otherwise present as a witness, wit-ness, and that he was an unauthorized person and was illegally before said grand jury. That at the time of the empanelling of said grand jury this defondant waa not under arrest, in custody, or on bail; nor was ho charged with crimo of any kind prior to the finding of said indictment; nor did he have any opportunity op-portunity at any earlier date than the present, to interpose any challenge to said grand jury or cither of said jurors. And this the said Brigham Young is ready to verify. Wherefore he prays judgment of said indictment and that the same may be quashed. I BruonAM Young. Territory of Utah, County of Salt Like, Brigham Young, being duly sworn, says he is the defendant in the above case; that ho has read the above and foregoing plea, and knows the contents : thereof, and that the same is true in substance and matters of fact, to the best of his knowledge and belief. Bit 10 HAM YOUNO, Subscribed and Sworn to before mc, this 90i day of October, A. D., 1871. W.m. S. Walker, Clerk. |