| Show ige THE REYNOLDS usg CASE SUPREME COURT OE 01 sae the sab UNITED W no ano iga S veory reynolda dd rl plaintiff at abiff in err error r 4 TS vs the unite united states jn rn error to the fhe supreme court of tie the territory of utaji mi chief justice walte delivered the 1 opinion of the court this la is an indictment for bigamy under section revised statutes which omitting its exceptions Is as follow follows f every person having a husband or wife living who marries another whether married or single in a territory or other place over which the united states have exclusive jurisdiction is guilty of bigamy and shall be punished by a nin fin nine fine e 0 not more than nive five hundred dollars and by imprisonment fon jor a term of not molo mome more than nive five yearb years 11 the aselo assignments of error when group cd ed present the following questions 1 was the indictment bad because found by a grand jury of less lees than sixteen persons 3 2 were the challenges of certain petit jurors by lle tua accused Improper improperly lr over ruled 3 were the challenges of certain lother jurors by tho the government improperly aus sustained 4 was the testimony of ameila jane schofield given at a former trial for the same of fence but under another indictment improperly admitted in evidence 5 should the accused have been acquitted if he be married the because he believed at it to ibe be ill lit his a duty i 1 I 1 i G did the tho court err in that part of the charge which direct directed id the attention of the J jury ury ary to the consequences bf polygamy ya these ap ba considered in thein their order c tn 1 As to the grand jury the was found in the tb 0 ats 16 brict court vt the third judicial district of the territory th ea of Gone rees in relation to courts avd ard judicial officers cers in the territory of utah approved june japp 23 3 ma 1818 18 stat slat vake reg regulating i the qualifications of jurors la in the terrp tory lory and end prescribing the mode of pa preparing the lists from which grand and betit petit jurors are to be drawn as well as ts I 1 ahe be manner of drawing drawings makes no provi edba eian in la respect to the number of persons of which a grand jury jary shall consist sec figa blon revised Sta statutes requires that a grand lary lory em paneled before any district or circuit court of 0 the united states slates eban ehan ahall consist of not less ices thad thai ennor bon bor more than twenty tarca persons while a statute af the tile territory limits the num ian eim SS ie J 0 AZ ac o lla ilg t the grand jury which found this indictment consisted of only fifteen person persons si and the question to be determined is whether the section of the revised stat stati utes referred to or the tho statute of the ter territory governs the case by D y section 1910 of the revised R eia eix statutes the district courts of the tho territory hale have the bame same jurisdiction in all cases arising under the cons and laws vt tf the united states as Is vestel vested in the circuit and district courts coarts of the tho united states but this does not make them circuit and district courts of the united states we have often so decided amerlean american ins co vs canter 1 fet pet benney vs porter 9 how clinton TS ys englebrecht Vr echt 33 13 wall they are courts of the territories invested for S bome some par poses with the powers of the oli oll courts ari of the united states writs of error and appeals ile lie from them to the supreme court of the territory bry and from that court as a territorial court murt t thi nr some isome cases section was nog resigned tore to rc tha aitho tho em ins ot at grand jurdes juries IB in all courts where offenders against the laws of the united states could be tried but only in the circuit and district courts this leaves the territorial courts freo free to act in la obedience to the requirements of the tha ter tutorial laws in force foille for the time belor belog aunton vs Ts eng englebrecht le brech breeh t IS 13 wall 4 Hom buckle buckie we vs toombs toomb 18 wall 5 As congress may at any time assume control of the tho matter there la Is but bit little danger to be anticipated from froni improvident territorial legislation in lif this particular we are therefore of the opinion that the court below no more erred in sustaining this indictment than it did at a former term nt at the instance of this same plaintiff in error in adjudging another bad which was found against him for th the same of fence by a grand jury composed of twenty thred persons 1 I 1 utah reps awu 2 As to the challenges by the accused by the constitution of the united states amend VI the accused was entitled to a trial by an impartial jury jars A juror to be impartial must to use the language of lord coke tog bog bt too indifferent as he be stands coke lin LIU b lord coke also says that a principal cause of challenge is so called because if it be found true it sufficient of without leaving anything to the conscience 0 or discretion of the 11 id b or as stated in bacons bacans abr ins IMs grounded on such a manifest presumption of partiality that if it found to be true yit sit lt unquestionably sets aside the juror juron 11 bac abr tit juries jurdes E 1 if the truth of the matter alleged is la admitted the law pronounces ulices the tha judgment but if denied it must be made lout out by to the satisfaction of the court or the id id elb eib to make opt the existence of the fact tho the juror who wilo is challenged may be examined mined on his hla dire and asked any questions that do not tend to his infamy or disgrace all AU of the challenges by the accused were for principal cause it is good ground for sueh buch a challenge that a juror has formed an opinion as to the issue to be tried the courts are arc not agreed as to the knowledge upon which the opinion must rest in order to render the juror incompetent or whether the opinion must be accompanied by malice or ill III will but all unite in hold bold ing that it must bo bb founded on some evidence and be more than a mere slon elon somo some bay say it must bo be politime poti tite lve gab beton bet on crim law sol others that it must be decided and substantial armis arms loads leads s case II 11 leigh 09 Worm leys leyb case 10 gratl CW neely TB vs the teo pie le 13 ill others fixed state vs amton benton denton 2 dev fc Batt and still others deliberate und and settled staup vs commonwealth 74 renn fenn st curly vs commonwealth 81 8 1 ann S st t all concede however that it if cal only the partiality Is hot not eo so manifest as its necessarily to set the juror aside chief ih la burrs trial 1 barns burrs trial states the rule to be that light impressions which may fairly be presumed to yield to the le stimon mony that may be offered which may leave th the mind nind open toa ton to a fair consideration of th the testimony constitute no bufil sulli sufficient clent elent objection to a juror but that those strong and deep impressions which close dose the mind against the testimony that may be offered in iiii opposition to them which will combat that testimony and resist its force do constitute a sufficient objection to him the theory of the law is that a juror who has formed nn an opinion cannot be tie impartial eveny every opinion which a juror may entertain need not have that effect in these days daye of newspaper enterprise ter prise and universal education every case of public interest is almost as a matter of necessity brought to the attention of all the intelligent people in the vicinity und and scarcely anyone any one can be found among those best fitted for jurors who has not hot read or heard heam of it and who has haa not hot some impression or some opinion p hi respect to its merits it is clear therefore that upon the trial of the issue of fact raised by a challenge for such cause the court will practically be called upon Is to determine whether the nature and strength of the opinion formed is such euca as in law necessarily to raise the tion of partiality the question thoa thus presented Is oue one of mixed law and fact and to ba be tried as far as the facts are cd ed like any other issue of that character upon the evidence the finding of the court upon that issue ought noti not to be seu set AsIdo by a reviewing court unless the error is manifest no less stringent zules rules should be applied by the reviewing coura court cour in such a case cabe than those which govern in the of motions for new trial because the verdict is against the eyl dence it must be made clearly t to 0 appear that upon the evidence the cour conr to have found the juror had formed such an i A arf laa it is left nothing to the conscience or discretion of the court 7 the he challenge in this case most moat relied upon in the argument here is that of charles charies reed heed hoaas ho was sworn on his voir dire and the whole of his testimony is in the record it Is as follows IQ Q aby 87 the t district attorney have havo you for medon medor expressed any opinion as to the hullt gulit guilt or of this charge A I 1 belleve believe I 1 have formed an opinion aby the court hate have you yon ou hoiu hoin formed lied and wid expressed an opinion A no sir gir I 1 believe not Q you say lou iou you have formed an opinion A I 1 have IQ Q Is that based upon evidence A nothing produced in court 9 Q would tha t opinion influence i ce your T eraitt verdict A I 1 font think it would Q by defendant I 1 understood you to say bay you had aid formed an but not expressed it A I 1 dont know that I 1 chate have express ed an opi opinion filon I 1 have formed one IQ do you jou now entertain that opinion 1 JU I 1 I 1 A I 1 do this was all ali the uhe evidence and taken a as 8 a whole it shows that the 11 he be had formed an opinion which he had never expressed and which he did not think would influence his verdict on oa he hearing par ear the testimony we ve cannot think this is sucha manifestation of as to leave nothing ta the conscience or oi discretion bt bf the the reading 01 ol the evidence ce leaves leaved the tho impression all ail that the juror juron had some hypothetical op opinion loh about the case but it falls far sh short or of raisin raising g d manifest presumption of P partiality artl allt in considering such questions in a reviewing court we ought not to be bd unmindful of the fact wo we have sa often observed ser vedin in our expedience experience that thai jurors net seek stele to excuse themselves on the ground of having formed an opinion when on examination it turns out that no real disqualification exists in such cases the manner of the tha juror while testifying Is oftentimes more indicative of the real character of his opinion than his words TW that is seen below but always be spread upon the record care should therefore be taken in the review ina inz court not to reverse the ruling below upon such s question of fact except in i a clear case the affirmative of the issue Is la upon the challenger unless he shows the actual existence of such opinion in the mind of the juror as will raese raise the presumption of partiality theJa the juror need not necessarily lia lie e set asid aside e and it will lot noi not bo erter in the court to refuse to do EO sueh such a case cale in our opinion was not made out put U upon oa the challenge of reed heed the fact that lid he had haa pot expressed his opinion ld I 1 important raint only as tending to show that ho he had not for sor formed one ono which disqualified him if a positive and deela ed opinion had bad been formed he would have been incompetent even though it 1 had not been bein expressed under these cir clr it Is unnecessary ry to consider const consi dei del the cabe case of ban Ran for it was con confess fesh edly not ai as strong as that of beed reed 3 As eo so the challenges by the 9 govern overn the questions raised upon these agn assign ments men la of error are not whether the district bt torney should have been permitted to interrogate the jurors while under examination upon their thein direl deraas as to the tact fact of their living in polygamy ho no objection was made maae below to the question bul but only to the ruling of the court upon the challenges lenges after the testimony taken in ans aus to the questions was in 16 from the lea it is apparent that all ill the J jurors acors to whom the challenges related were or had been living in polygamy it needs no ar argument to sho show ow that such a juror could not et have gone into the box entirely free from blai blab and prejudice and that if it the challenge was not good for principal cause it was for favor A judgment will not ot be reversed simply because a good for favor was sustained in form for fur CA cause use As t the be jurors were inesm incompetent detent abd and properly to pe y excluded it matters not here upon what wha t flipi of challenge t they hey were set a aside 9 I 1 d e in one cabe case the challenge was for favor favo r inthe inow courts of the unit cd ed states bil all clial challenges lenges are tried by the court without the alif aid ald of ret Rev stal Stat sec see and we ira am jire not advised that the practice in the territorial courts of utah Is different 4 asto As to the admission of evidence to prove what was vas sworn to by amelia jine jane Schol leddon leldon a former trial of the accused for the same re offense offence but under a different indictment the constitution gives the accused the night right to a k trial at which ne he should be con fronted the witnesses against him himbur but it if a witness is absent by his own wrongful procurement ho he cannot complain it if comoe competent tent evidence is admitted to supply the place of that which he has kept away the constitution does hot ilot guarantee an accused person erson ergon against the legitimate con sequences of his own wrongful acts it grants him the privilege ri allege of b being eing confronted with the witnesses against him hut but ut if he be voluntarily keeps the witnesses away he be cannot insist on hla his hia arly privilege cloge if i therefore when absent ausent by his procurement their evidence is supplied in some tome lawful way vay way he is in no condition to assert that his con constitutional al nights rights have I 1 been violated in lord Mor morless leyb leys case caso 16 6 stat stata trials 77 as long ago as the y it was resolved in the house of lords that fa in case oath a shall h all ail be made that any witness who had been examined by the coroner and was then absent was detained by the means or procurement of tho prisoner prisoners and the opinion of bl the judges asked whether guch such examination might bo be should answer it if their lord lordships ships were wera eatla niel fiel by the evidence they bad heard that the tho ss was detail detained lod iod by cans or pro cu rement of prisoner was matter mur mar n of ot fact laet 61 which we were not the bages altes but their lordships lord ships this resolution was follo followed edin la cae cloe 12 state trials and seems to have been recognized as tho the law in england ever since in regina vs LT 17 ada W N S ail all the judges agree that it if the prisoner had resorted to a contrivance tr to keep keen a witness out of the way ways the deposition dep sitton of tho the witness taken before a magistrate and in the presence of the prisoner saner might be read other cases to the tho same effect are to be found and la in this count country rythe the ruling has been beer in the sama way drayton vs wells I 1 nott me cord t williams vs state states 19 G geo eo the leading textbook textbooks text book books bitis it Is laid down that it a witness Is 13 kept away by the adverse party his testimony taken on a former trial between uha tha barre sance parties upon the same issues may be riven given la ta evidence c eyl 1 i greenl grecni eve sec I 1 taylore taylors ev bec sec mr wharton 1 ev er bec bee seo |
