| Show AN OPEN VENIRE tima JI STIO N OF ITS ax LEGALITY DIS JUDGE ZANE DECIDES TO T the exhausting of the jury box in the district court la in the ineffectual atte attempt rapt to obtain a grand jury for the september term terni raised raided a to be decided by chiet chief justl justi e c zane which Is almost in the annals annais of local jurisprudence willbe li Ir wiit will be xe remembered that the poland bill which governs tile the jury system of utah territory provides that two huldred names ot citizens qualified to act as jurors shall be chosen one by one alternately by the clerk of the tho district court in each district and the probate judge in the county where court Is held and these names placed in the J jury ury box bos on the first of january of cacti each year also that f roin from these two hundred names the grand and petit juries of every term of court during that year shall be made up the names once drawn from the bohto be dis dig discarded carded as no longer eligible until the listing 11 of another two hundred in the en ensuing S lulng january prior to the present emergency i the number thus provided has been heen ample for every demand but owing to so many names havin lavin having been rejected this year through their owners refusing to answer negatively or at all the question as to their belief in the of a man having more wives than one the supply has been exhausted more rapidly than would otherwise have been the case hence the existing dilemma yesterday the last three names in the jury j ury box were drawn and passed upon anu aua anit still the grand jury was incomplete therefore the question that confronted the court this mo morning riling was whether an open venire should shoula bissu the marshal on a writ furnished by the court to summon from the street a sufficient number i of persons to complete the panel pane or whether there should be no grand zury onry until the listing of another 1 too 00 names next nest january and the jury should be formed according to the pro s of the poland law there being a variety of opinions among ari arb members embers of the bar as to whether an open venire could be c legally leally issued under the tho circumstances es judge zane this mo morning ining oil on motion of tile the prosecuting attorney mr nir varlan varian invited a discussion of the question by the members of the legal profession who were present mr varian arose arose first and expressed his doubts as to the power of the court to grant an open venire but preferred to hear f from rord other lawyers present and so g gaye gave a C way ol 01 u d q J G sutherland wasi was of the opinion pini on that under existing stances the court had a legal right to issue an open venire as the roland poland statute had been spent in the exhaust till ting n of the jury box and the legislature not having provided any measure to meet the present exigency the common law procedure in le the paneling em of luries ought to tind nind application mr varlan varian supplemented judge sutherlands Sut herlands argument by various citations favorable to it but still averred his bis dubiety as to the tiie legality of the grant graut granting lugof of th the motion emotion judge C 1 K gilchrist gelchrist deemed it not a debatable question congress in order to act fairly in response to the piea plea plea piea put forth that a portion of the inhabitants labi tants of the territory felt that the federal judiciary were hostile to them had provided a means in the poland law whereby both sides could be equitably represented lie ho was sorry the present had alizen but it could not emergence be helped A plain proposition of law could not be avoided that if this jury was not formed in the manner provided by law it would be a nullity judge thomas marshall held that the court did not have the right to grant the congress had expressed its will in the provisions of the poland law with a view to protect mormon and gentile alike and deal out j ustice justice with an even hanl hand hand band and aud the provision of that law in relation to the formation of juries was exclusive it would be dangerous to attempt to thwart the will of congress 0 by disregarding this law judge also aiso held that the court hadnot had bad not the howerto power to grant the venire the coi cor common ilmon rimon law provision would a apply ply in the absence of a statute but ohp the e presence of a statute in this case put a different aspect on the matter the right was not inherent in the court to select juries in the absence of a law lav prescribing the method and the poland law bound the courts action in this matter even if the poland bill was not exclusive the common law did not direct the court as to the method of selecting juries all territorial legislation inconsistent with the poland act had been repealed by it and there never was any common law lu io utah to apply in the selecting of jurors thus was the olond koland 1 law exclusive I 1 J judge adge J it mcbride held that if the court had the power to act it had the power ris nis ower to supply the means of acting this power grew grev out of tile the inherent ri of the court to administer the law when the statute had been exhausted as in this case the power of the court was not it was not claimed that the statute should be dis rega ded the discussed only arose after the statute had been spent if the court had not the richt right to supply the jury in such a case khatri what right had it to keep a man in jail entitled to a speedy trial triai was kept there on oil account of there bein being no jury to try his case it was wasal wasai an leas easy matter to exhaust names in four terms of court lie had bad known names to be soused doused so used up ile he held that the court should not be hampered and hindered by such a contingency when the statute lia lla hat I 1 been exhausted all the powers to enable the court to I 1 proceed roc eed were implied and the old common law procedure proc eduie of thu the open venire found application ue pe held I 1 in short that tae of the territory carried learned with it the common law und and that it was applicable in this case the statute having been exhausted JU ij Com congress Iress had intimated that the poland act was to be exclusive that would settle the matter but as it had not it must be conceded that the statute was only intended to modify and not to do away with the common law mr nir J L rawlins cited a case bearing upon the question where an open venire was issued to nil fill up two vacancies in a grand jury caused by two jurors suddenly leaving the state the indictment found by this jury was quashed because of this irregularity the mistake in the argument that the court could supplement the law under which it was authorized to select jurors was shown in the fact that the poland law was designed to be exclusive for the purpose of giving each side a fair show as had been stated and dealing out evenhanded even handed jus us tice to mormon and gentile alike judge zane at this point adjourned the court till 2 at which time he announced he would render a decision the full text of his ruling which was delivered orally will be found in another column in it as ag will be seen he maintains the right of the court to grant the venire which was done accordingly |
