| Show JUDGE ZANES ZANEIS DECISION I 1 t Z k 1 1 tue TOE orex oren VENIRE venine GRANTED 41 0 t I 1 at the ibe opening of the district court at 2 this afternoon chief JU justice zane the foll following qwIng oral orai decision shon slon on the motion for fon an ani open v venire en ire lre to complete tom piete the tho panel of the thie grand rury furs drury fury the attorney fon fol thel thal th q people I 1 has moved the court for an order for a sufficient number of men to be summoned in liu the body of the district to be issued in the manner requiring him to summon them and the question is has the court the power under the thu circumstances cum stances to make such tin an order the circumstances are arc that the coli coll gres res of the united states has provided four tour bour four terms of court in each of of the I 1 judicial it districts of the territory of utah to be held each cach year tear and in pursuance of law the terms have been fixed for febra february 1 ary aro atril april september and december and has as also provided in section 4 of an act of congress in the territory of utah that sec sec see 4 that within sixty lays days after the passage of this act and la in the month of january annually thereafter the cle cre clerk rk of the district court in each judicial indicia district and the judge of probate of the county in which the district court is next to be held shall prepare a jury list from which grand and petit jurors shall be drawn draw nto to serve inthe lathe in the district courts of such district until a anew new list shall be made as herein provided said clerk and probate judge shall alternately select the nameon a male citizen of the united states who has resided in the district for the period of six months next preceding and who can read and write I 1 in n the english language and as is selected le ted the he name and aud residence of each shall be entered upon the list until me same shall contain two hun hundred red names when the same shall be duly certified by such clerk and probate judge and the same shall be tiled filed in the office of the clerk of such district court and a duplicate copy shall be made and certified by by such officers and filed in the office of said probate judge and the section further provides for the time and place of the drawing of the jury by the judge and that on the day and at the place thus fixed the judge of such district court shall proceed tw to draw such names etc omitting portions of this section which I 1 do not seem deem material the section further provides and the names thus drawn from the box by the clerk shall shail not be returned to or again placed in said box until a new jury list shall be made if lf during daring g any term terru of the district court any additional dit ional grand or petit jurors shall be necessary the same shall be drawn from said sald box bythe by the united states marshal in open court but if the attendance of those drawn cannot be obtained in a reasonable time other names maybe may be drawn in the same manner I 1 omit other portions of the sect section lon lou hut but it appears that all of the names have been drawn from this box and we have but 12 13 12 grand aurore juror tf the hv law provides that 15 shall constitute a inand irand nand rand jury and I 1 will wil wll further state that thu the statute provides no moseby mode by which the 3 additional grand jurors can be supplied and the result Is that it there is no power tower in court to provide thus this grand lury iury then the district is without a crana grand iury lury from irom april until next february which would be ten months about and the probabilities are that thau during the present term terru of court it would be necessary to draw some more petit jurors to try some of the cases that may be as I 1 anticipate and there call cali be no jury jary either grand rand nand or petit for tor this or the december Dec december embel term now under these circumstances the ques question toLi is what is the proper construction st bt of that section of the statute that I 1 have read did the congress of the united states intend that th achis chis district should be without a grand juny luny r for ten months and without a petit jury probably to try some of the cases for some length of time or a portion of the time at least this act must be ber construed with other acts of congress aud and in the light ot of the constitution of the united states it must all ue be construed together e r the statute provides but this fitt and d it provides that when they are d drawn a 0 oat out tit when this are exhausted that a nev new list shall be made as herein provided but the new nad had is ii made lu in the bame baine say way vay that the old oue one on was wad made in tue the mouth of jall jail january uary the statute lu la terms term provides that this shall be the litt lift for the year from which jurors are to be drawn the quest question loja now Is as the list has been exhausted and there is no list to draw the jurors from has the court the inherent power as ans i a court to furnish the necessary jurors in using the term court congress used it in its legal sense acts of congress prescribes the jurisdiction of the court it Is a court when they mention court it isa isu is a court for the trial of civil and criminal cases without a grand jury ora or a petit jury it isnora is not a court for the trial of criminal cases because there them is no way by which a criminal offense can be tried in this court except upon the presentment of that grand jury upon an indictment I 1 am desp disposed ased to hold that inasmuch as this statute has been beed exhausted and the courtis courbis commanded to hold hoid the terms of court that the court must use the necessary means to brin bring its powers into exercise because it is absurd to td say that congress intended that the federal legislature intended that a court acourt should beheld be held heid and tind at the same time provided a method by which it could not beheld be held heid the constitution of the united states provides that in all criminal eions the accused shall enjoy the right of s speed beedy tria this is expressed in one of the amendments of the constitution of the united states to say that congress intended that in this contingency the court had no power tosum to summon mon mou a jury is 19 equivalent to saving saying that congress intended to deprive a person of the benefit of this provision of the constitution because here Is the court term to be held another one to be held in december and if they so intended they provided a method b by y which i a man charged with crime in this district could not have a speedy and impartial trial to attribute such an intention as that to the wisdom of the people of the united states collected in congress would be to attribute to them a willful violation of the constitution which they had taken oath to support and to enforce I 1 do not feel teel authorized authorize J to give it any such construction reference has been made to some decisions one a decision which Is in Brocken broughs reports a decision by chief justice marsaa Marsna llone ilone of thu the most eminent jurors that has ever sat upon the bench beach at least in the united states or probably in any country he stands preeminent pre eminent foghis for his wisdom and his learning ln in that opinion he lays down c certain eria erta erin principles and after alithe aalthe law consists of general principles and the decisions of court are but illustrations of this principle whenever it Is proper to apply it C chief chiet justice marshall says say 8 it has nas geen leen been justly observed that when acts of congress directs grand juries or defines their powers by what authority are ard they summoned and whence do they derive their powers the answer 11 1 that the laws of the united states have invested courts with criminal crimin eal eai jurisdiction this jurisdiction being exercised through t the tie lle instrumentality of grand juries there Is no question but what this court has power to inquire into criminal offenses by a grand jury A 1 grand jury is a part of the courland cour tand the court has the power to exercise the means by impei the the powers of the court and nd to the means necessary for the exercise of those powers reference has been made to a case that went up from this territory wallaces the case of clinton et al va vs englebrecht engle engie brecht this has been cited as a case in point tiie tile facts of this case as I 1 gather them from the opinion were that the legislature of the terri tory had bad provided a method by which the jury was to be summoned the court failed or refused to pursue that method by that thit method the court had the means of furnishing a jury he lle declined to use that means to 10 obtain a jury in th that atway way but issued an open venire it therefore is not a case in point here here there are no means meang the means have been exhausted and the question Is whether the court by implication hs has the power to summon a jury the case dont seem in that respect to be in point another case was referred to alalue alaine reports vol voi 36 the case of the state vs simmons in that state it seems that there was a constitutional provision vesting the power of providing a jury in tb the legislature and the constitution had deprived the court ot of the power to select a lury jury ury court held in that case ease that the method laid down by the legislature must be fo lloyed followed and that there was no other power by which the method of select selecting ilig a jury could be provided I 1 am disposed to hold therefore that inasmuch as there Is no way by which it a jury can cau be summoned for this term ana and and for the next that it Is the duty of the court it is the legal duty of the court to exercise the common law power the power ower incident n ent to all courts of this chara character te I 1 unie unless it Is expressly deprived rive of f t that at power by some com competent authority t it and I 1 am of the opinion that under the circumstances that congress has hag not deprived this court of that power poser it certainly has net not expressly done it and I 1 dont think that fid did it should be held to have done it by Impi implication leation the motion therefore will be allowed and the venire will be issued for eight jurors to be summoned as grand jurors good and lawful men to be selected froin the body of the district by the marshal |
