Show THE REYNOLDS indictment QUASHED itt 01 OPINION OF OF the surre aburt court in the court of df utah terri territory tonyi ju june rie lie term J 1873 41 the Util ted 1 I I 1 respondent I 1 opinion 1 0 af pf vs of t the i george eorge vl t court curt r 5 appellant 4 appeal from the ard rd district court ourt boreman justice de livered delivered the opinion of the courts courtn the appellant was convicted ofa of a violation sf it tile the statute of the unit etl eil states of 1862 1863 against polygamy The appellant assigns as error the reject rejection c on of evidence offered by him to show that plural or polygamous marriage marrih ge was part of his religion reli rell this objection of the appellant is Js as we conceive based upon neither meither reason justice nor non law and therefore we dismiss dis dib jt without further notice the principal the case arise in reference to the tile constitution of the krand brand grand jury which found the indictment Indict men 1 upon which this conviction was had the most important of these objections te to tho the grand ury was that which had reference to the number necessary to constitute a legal gran grau grand grandeury djury jury this indictment dl was wad found by a grand grarld 3 iury jury consisting of tw twenty enty three men mem the app upp appellant ellau eilau assigns this for error and claims that fl fifteen was the proper number to constitute that body the atut of Co congress agreM entitled an all act in relation to courts and aud judicial officers in the territory bry ol 01 utah I 1 approved june and which Is commonly styled the pyland poland bill provides iii in sec 4 aj for the making once a year of a jury list of two hundred names from which the grand and petit juries for the district court shall be drawn and it requires that when a grand or petit jury la Is to tobe fobe he drawn for any term the judge of the district court coult shall give public no notice tica thereof thereon and shall preside at the drawing and that the blerk elerk snail stil put the two hundred names on sep separate irate slips of paper and place them in a covered box and thoroughly mix and mingle them and that thereupon the united slates states mars mara marshal marshai lial ilai shail shall draw from the box such number of na names mesas as may have previously been directed by aid ald said lid judge the grand jury to be drawn first that a venire ventre shall issue and the persons whose names are thus drawn shall rhall b be duly sum before the term of court and that the jurors so drawn anu aau summoned shall constitute the regular grand and petit juries for the term for all cases it was un uni dorthis darth isac ac t that th a t the grand jury which foulad the tho indictment was wag procured i let us then first consider how the law stood at nt the passage of that act in tho the well known case of a clinton rp vis engelbrecht IS 13 wal lace the supreme court fit of the united state cafter after ie referring ferring to the power power of the legislature as ox tending to rightful subjects of legislation say the e method of pro curing jurors for the trial of cases ts is a rightful subject of legislation and the whole matter of selecting impanel im panelling lium and summoning juries uris urla 1 is left jeff to the territorial legislature gand jand further that the action of the legislatures of a all ali the territories has been in conformity with this construe tion and still further in another part of the opinion that the whole subject matter in the territories la Is committed to territorial regulation the gendral general jury laws of the united states are not by express words made ap applicable p to turri courvi and if they ale ate to bo be considered aa applicable tb thereto it can only be so upon the dietry theory blat that these territorial district courts are arc united states courts in the tho casa case of clinton vs engelbrecht referred to chief Jil justice justlee stice chase chasel in speak of such a theory and of the action of the territorial district court in selecting juries under the united states jury laws said Cr Weare we are of the opinion that the court erred both in its theory and in its action and aud ia in speaking in the same case I 1 of f tae judiciary i act of 10 1759 69 he says the re regulations lations of that act in ln teg regard ar d to gu the select selection ion ton of jurors hareno to ter ep thet they tik alk e y were vero w er e f framed ra med with reference to he states and can hof bof without violence to the rules bulei of the construction be made to apply to Teril terii territories torl tori 69 of the united states for similar reasons no act 0 of congress re pecking respecting juries in united states courts enacted subsequent to the act of 1789 could be made to 0 apply to the territorial CO courts u arts unless by some bome express pro vision 60 to 60 that effect it is nob not shown nor do we believe that it is cn n that any such sueh proy provision ision exists the pol poi position tion of the tho supreme eme court of the atlie united states so broadly baid i down as before stated 1 is alwo as we c conceive on delye delve well supported ti by y the resso reasoning ning of the same court in q the subsequent case arhorn buckle bucklo vs vi toombs 18 wall vall when lyben the act of congress termed the poland bill waa was wa passed the territorial pry jury laws lawa and ann the un united ted states epry pry ury laws were wore the same as asi when tile the decisions of the supreme court of the united States state were rendered re adey ed we connot therefore in the face of the opinion of t the he highest tribunal of the nation to 6 the contrary say gay that at the passage pf af the act 0 of congress Congre qs re erred to the general jury lassof la ya of the united state states s were applicable to territorial courts the qu question es guestion then arises did this act of ic congress angress change the rule it ltv certainly changed the i ruie rule ab so far as ns the tact acis are in inconsistent coho cohA stent it cannot n adt be said hat bat thit that act howa e ever ver fixes jho ithe nh number m ber norcessa nei noi ne cessa cesany cesary i gryto to constitute h a grand jury if ir t the h e number drawn upon the order of the judg judge fixes the number th then e ti it likewise nixes fixes the tug number of the petit jury the language lati lali guage 1 alike in respect ti to both oboth if this construction be e bor correct reet a grand rand adry of bf thirty or any other number less tb than an two tto bundled b child 0 11 d be a legal grand buryin this territory rr ony ory could congress ever have intended any auch uch thing it is 14 but blit reason reasonable ibie ible to suppose that if it con congress gress had intended to have nixed fixed the number it would have said so and not left eft it li to haju vague e supposition the purpose evidently was to allow jhb judge to fix the number feces necessary nry a ary to be drawn out of which to make mawe the juny jury the jury to be of the number as then established bylaw by jaw it ia Is claimed that if the united states jury law be not noc applicable b le nor the gumbei number of tiie the j adry dry ary be allowed to be nixed fixed ginder cinder the pol and bill yet that the act went far enough to repeal the territorial law in respect to the num berof the grandeury gran grand djury jury and allowed Common the baw daw to rise up to control the matter this po position altion of course can only he be maintained upon the ground that the repeal is by implication merely such repeals are not favored and anti will not be declared to exist except in cao caso of inconsistent or incompatible enactments we are unable to perceive any inconsistency sis tency teney 01 incompatibility between the territorial statute fixing the num berof the grand jarv and this act of congressi the territorial statute seems rather to fill and supply ply a place not covered by the act alnar 0 of congress e ss A law which declares the number necessary to constitute a 3 grand jury is not inconsistent with a law edw which merely tells telis us how to get the num berof 0 f jurors out of which to td compose the funy fury the laws nrc arc entirely v I 1 gable gabie and con and andrt it Is the tha duty of the court to declare that shat both of them shall stand so sodar far nar as the act of congress goes it becomes exclusive as to all that it i properly embraces and if congress is to be considered as having in this act legislated upon the number of the grandeury gran grand djury jury then thep of course tho the territorial legislature is precluded aarm from doing RO so if that act et supersedes the territorial law now on the statute book as to the number num berof of the jury it would like wise exclude any future legisla tion upon tile tiie subject by the terria CS legislature but the me court of the un cuned a ed Stats say that full authority atit hority concerning this matter w was wat as elven riven niven eiven to the territorial legislature by the organic act aati we c cannot all ati nod not say siy therefore 11 fore foro that this V motive aut aul authority hority given by ohp th organic florganic act is by implication does when theace of congress con Cou gress gresa does not embrace the point under all proper rules of cou coa therefore ei we are forced to the conclusion that we must ro ic sort to the territorial statute to a ascertain what is the proper number for a grandeury gran grand gnand jury djury that stat slat statute fiti ed declares fifteen to to be the proper num j ber her and does not authorize a grand jury of ofphy nily other othen number the grandeury grand lury iury which found the indict ment in fri the case before us having been composed of twenty three members instead of fifteen was not steb sueh such a grand jury as 49 the law requires and anti by not being properly y constituted its ltd action became vitiated there are some minor minon points in the case which perhaps we should notice one of the parties appearing as grand jury stated upon hi bia voir bircy dite dire in answer to a question by the prosecution hat lie tie had conscientious scruples against in d dichting persons fp nor for violation of the thu law of the united states of 1562 1862 against polygamy on that ground he was challenged for ea cause 1 use the challi challenge sustained and the party discharged and not sworn aw orn upon the grand ju juny jury ry this action abilo n of the court in ini excluding this party from the jury jurk la Is assigned as error A parson person who upon his conscience could not nind find under a law would not nut mahe make a good juryman to enforce the laws and A nd if all in members embers or a majority of a grand aarand jury ard like scruples des that and venerable body would not only become becom 0 useless but also an absolute hinder ance to the enforcement of tho law having these conscientious scruples would if sworn upon the grand jury have to commit moral perjury heulon Ye upon oath admits that his conscience forbids his bis aiding in the enforcement ofa of a specific law yet as a grand jury juryman nian he swears to go counter thereto and add enforce thelah the law such a party would be wholly incompetent to sit pit upon a petit jury and the same ground would exclude him from the krand grand jury whartons Wh artons am crim ij sec see burra trial sec gee 38 we think there was no error in in the exclusion of this man mau from the jury it is claimed that the awing drawing Ir and summoning of some sonic of the grand jurors after the beginning begin nin g 0 of f the term terra was error 30 bo f fac far as s th the e drawing and summoning of i jurors after the num berof fifteen I 1 fir for a c obtained it was error but so sa as that number was not exceeded on cheiky the jury jurs there was no error if ir from any causette cau sethe jurors summoned prior to the term do not lot appear the court Is authorized under the act referred te to have bleh sueh such additional fi number Umber summoned a as the thi court may deem mem necessary to it complete lete the panel pane I 1 if those thus drawn rawn do not appear the court ia is not compelled to delay indefinitely bub but can order the drawing of still a further number if necessary to complete the panel it is likewise asserted that ona ono of the jurors did not pa pay y taxes he lih had bad taxable property however howe hove dor jer and was ready to pay taxes if hi hj was not assessed and not thus allowed to pay taxes it IV was wag not nod his fault and he cannot bo be excluded from the jury box for failing falling to pay taxes i all of the objections respecting the constitution of or the I 1 ury were raised by the appellant in pleas in abatement the Judgment of the court below Is reversed and the cause remanded to the court below with instructions to set the verdict aside and quash the indictment LOWE C J concurs E emerson J tb the e only doublin my mind in connection with this mw case was wis in reference to the constitution of the grand jury bub but bu 1 t upon a more critical examination of the subject I 1 very cheerfully concur in the result arrived at A son of the late celebrated celebi celebia ted aLed english elocutionist bellew Belle bah bag made a successful app appearance garance in london lemme clemme die now gasped in an ohio farmer pvc lived to see a woman put iut thirty one yards nf eloth cloth into one dres s and im ready to pull lip stakes stava ll 11 |