Show i im rr THE CLAWSON CASE JUDGE ZANES loi the arguments ants made before chief justice zane yesterday on the it motion notion of r F S to quash the indictment foundas found against Rudger clawson for polygamy an the ground that the grand jury which found the indictment d lc ament was an illegally Ille zally constituted on one c were listened to by a full representation sen tation lation of the tiie bar of the city eity anday and by many other auditor S I 1 th the C public bublic are doubtless acquainted with trie the circumstances es attending the empanelling panelling em of that jury and will remember that of tile the thirty names drawn in compliance with the provisions of the poland bill tive five were excused as not having the necessary necessary statutory qualifications it will wil I 1 not llave nave been lor tor forgotten lorg iorg gotten kotten that of the remaining twenty tive live fifteen were mormons cormons Mor mons audeen and ten ngu ngn and that all the former were challenged and excused because they answered the following questions in inthe the affirmative whereas their non mormon colleagues were spared tb replying plying to them at all do you believe the doctrines and tenets of the mormon church I 1 I 1 do you believe in the doctrine of plural marriage as taught by bythe the mormon church i lin I 1 do you believe it is right for a aman man to have more than one wife v ing at the same time I 1 vacancies The thus creata created w were e r e filled up with those known to be non mor nor mons and it wa was this peculiarly constituted lury yury which lound the indictment against mr clawson CI awson mr richards took tho the ground that this grand jury was not one specially to seek out y cases but was f ormed formed for the purpose of inquiring into all kinds of offenses against the laws of 0 f the united states tee tle ane statute known as the poland bill was inore over oven plain in its provision that both parties in this territory should be represented in the enry box and there was therefore no cau cause sefor for excluding the fifteen mormon Al ormont jurors I 1 irom irol lithe tithe the panel if they possessed the qualifications required which it was conceded they did nor does section 5 of the edmunds act which provides that in any prosecution cution cutton for bigamy polygamy or unlawful cohabitation under any statute of the united unite d states it shall bo be sufficient cause of to any person drawn or summoned as a juror or th that atlie atlle he believes it right lora iora lor a man tollace to have more than one living and bif wife e at the same time or to live in the practice of cohabiting with more than one woman preclude mormons cormons Mor mons from the right to sit on a grand raud rand jury where reali reail all ali kinds of indictments are to be found fouad its plain meaning being that in certain trial juries after the indictment has been found persons entertain entertaining in a certain taiti belief may be excluded the panelling empanelling em of a pud gnand grand jury is not a prosecution for polygamy 01 or bigamy any more than for murder murderer or burglary but it if the mor mons could be asked certain questions and excused on making an affirmative til answer to them the non 11 mor mons should have been asked the same questions the latter were not asked if they believed it right to cohabit with more than one woman which was as much a disqualification as belief in toly goly polygamy polygamy gamy and there was manifest all t the e way through a disposition to create such a jury as was not provided for by law mr nir richards contended that a person suspected of crime had ri rights lits tits before the law which would shield shiela him from baseless and vexatious indictments where the latter were illegally found as much as from conviction by a packed jury at the conclusion of his agu argument ment the court took a recess and oil on reas re as ai dembling sem bling at two pm listened to the reply of C S varian esq E sq assistant assist aut ant prosecuting attorney who argued that the provisions of the edmus edmunds bill in regard to tile the qualifications of jurors on polygamy cases were applicable to grand graul jurors as well and nence hence that th a t this grand jury was vas sas a legal one lie declared that the point made by by def des defendants fend end ants attorney that the 11 mormon members had been asked certain questions regarding cohabitation which had not been put to the no non 1141 1191 ii 11 mor mons had no weight from the fact that this was a matter matter duft purely ly optional with the prosecute prose prosecuting cuti ng attorney lie he cited authorities to show that the only ground defendant could have for his motion would be in proving that the requisite number of ballots was not drawn from the jury box and that the notice of the drawing was not given in the manner provided by law and that tile the drawing drabin was no not t had habl in the presence of officers designed by law but that these thes e steps having been regular and f fully ully complied with there thed was no legal standing for the motion to quash the indictment by reason of the illegal nature of the em panelling ganellin of th the jury ejury mr richards iu in his closing argument showed that the authorities quoted hy by mr varian were not applicable to the state ot 0 affairs in chister this territory where there were two leg legislative 8 e bodies the congress of the united ite states and the territorial legi legislature lat re and referred at tat some length to the e j system which obtains here a and t to it history from the be beginning innon making strong and concise argument argument in s support of his motion the th matter was taken under advisement until 10 this morning at which hour in the presence of a f full fuli uli uil bar the fol following was rendered by chief justice zane as his DECISION this is an indictment for polygamy and the objection to the indictment Is that the grand jury was not a 4 legally constituted grand jury and the reason as I 1 understand the substantial reason is that certain grand jurors were excused illegally and certain others were placed on the grand jury in consequence that ought not to have been there it appears from the statement of facts pleaded to by the attorneys to fo the prosecution and for the defendant tha tithe grand jury was first selected in pursuance of section 4 of the act of congress approved I 1 think june 1874 in brief there were at finst first thirty grand jurors selected in the mode prescribed by the statute I 1 do not understand that there is anyon any objection to that but twenty five of them were illegal grand jurors unless these challenges that were interposed were wrongful the grand jurors excused fifteen of them I 1 believe were asked these questions do you believe in the doctrines and tenets of 0 the mormon church do you believe in the doctrine of 0 plural marriage as taught by the mormon church do you believe it is right fora rora man to have more than one wife living at the same tinie time F and each of these grand aurora juror an 1 these auest questions ions lons in the affirms giveand was excused and other jurors were selected in the following mode as provided in section four it if during any term of 0 the district court any additional grand or petit atit jurors may be PI ne cesary the same chall sh be drawn from the said box by the united states marshal in open court but if the attendance of those drawn cannot be obtained in a reasonable tim eother names may be drawn in the same manner these were after the fifteen alf teen were excused the additional jurors selected in the mode prescribed so it resolved at last into the question whether the act of congress so iauch of it as is applied in this case which is found I 1 in U the revised statute book section 1039 and this statute of the united states passed at the first session of the general con congress ress in 1882 shall hold the statute describes derl deri bes first the crime of polygamy poly lu and without reading a description description fon lon of that crime because it is stood it imposes a punishment inper on per tons guilty of it by a fine of not more than goo and imprisonment for at a term erm of not more than five years and further farther provy provi provides ldes ides that sec see 3 that if any male person in a 1 territory or other pia pla place aser aver 01 er which the united cited states have exclusive exclusa e jurisdiction hereafter ter cohabits with more than one woman he shallie shall be deemed guilty of a misdemeanor and on conviction thereof shall bo be punished by a fine of not more than three hundred dollars or by imprisonment for or not more than six siv months or by both said punishments in the discretion of the tha court and then section 5 provides sec seca 5 that anany in any prosecution for bigamy p polygamy or uta ula unlawful fui ful under any statute of th the united unite d states it L hall hali be sufficient cause e of ch challenge lenge to any person drawn or sum summoned as a juryman man first th that at lie he is or has been living in the practice tico of bigamy polygamy or unlawful e cohabitation tation with more than one wo woman P or that he is or has haa been guilta of an ottense punishable by either of the foregoing sections or by section lifty fifty three li undred hundred and fifty two of the revised statutes of the united states or the act of july first eighteen hundred and sixty two entitled 1 an I act to punish and prevent the tho practice of poly gainy gamy in the territories of the united states and other places and disapproving and annulling certain acts of the legislative assembly of the territory ry of utah ugh or sec ond that he believes it right for a man to have more than one jiving and wife nife at the same time or to live in the practice of cohabiting with mith more than one woman and any person appearing or kotfer r ed as a juror or and c challenged allen alien ged on either of the foregoing grounds maybe may be questioned on his oath as to we the existence of any such cause of challenge and other evidence maybe maybo may bo introduced bearing upon the question raised by sueh such challenge and this question shall be tried by tho the court but iset as to the first ground of challenge before mentioned tion edthe the person challenged shall not bot be bound to answer it if he shall say upon his oath that he declines on the ground that his answer may tend to criminate arimina te himself and it he shall answel as to sald said first drs t ground his an answer sacr shall not be given in evi evl evidence deuce denee in any criminal prosecution against himfar him for any offense named in sections one or three of this act but it if he declines to answer on any ground lie he shall be rejected as incompetent that is the whole of section live five now tile the question ls is whether this section applies to a rand grand jury or simply to a petit jury thelan the language wua gua gels geis is that in any prosecution for bigamy polygamy ga my or unlawful cohabitation etc the term prosecution it is insisted should be limited here to a trial j jury and not to a grand jury it will je be seen that the tiie language language expressed in this section is any person appearing or offered as a juror or the term juryman is used in its general sense without qualifying by reference to a grand jury or to a trial jury except so far as the last term which says or it is not qualified tile the term jury or juror it is used in its general sense and the term prosecution Is not in it in any prosecution for bigamy polygamy or unlawful cohabitation etc the prosecution of the defendant may be said to commence when the process of the court according to methods provided by law is commenced to be used against him when Is that it is when the rani grand jury jary commences to investigate his case by subpoenaing subpoena ing witnesses and examining them against him without that pro beeding there is no such thin thing as a prosecution se of a crime under ile the laws 0 of f this territory in this court except as minor misdemeanors may be brought by appeal but for rora fora a crime such as is described here there can be no prosecution without the proceeding edin before the grand jury it is a necessary part of the prosecution and the term should be held here to mean the whole method from the beginning to tile the end which results in the conviction of thil the defendant or of any defendant now if there ther els eis is any question as to the meaning of a statute if it is susceptible cep tible to two meanings it is always proper to reter reler to the reason for tile the law to the wrong it is I 1 intended to remedy what was it the intention of congress was to provide an impartial jury by which to try polygamy cases there can be no question about that and it is as important quite as much probably to the defendant well not quite so much pinch though to the defendant but it is ol 01 of the highest importance at least that an impartial grand jury shall act upon each case the case of each party that is charged with crime it certainly is of the highest importance that an impartial jury shall act in each case cas it is of great importance to th the 0 party indicted if he is innocent A partial grand jary jury might indict an innocent i man aa because they will act upon their prejudices rather than the evidence thele I 1 do not say all men do some men are abie able ble bie to lay aside their prejudices but it is important to the state and to the people to have an impartial grand jury because it would be a wrong to have an innocent man indicted and alid it would be a wrong also against the public to permit a guilty malno maino man to go unpunished when there Is evidence su sufficient to con convict conditt vict vitt him that is the method which the people of the united states through the government which they have provided have adopted for the protection of society the punishment of such conduct as they deem cleem to be injurious to society they have adopted this method of prohibiting and preventing what they have determined is injurious to society as a crime and the reason for this law Is as I 1 suppose based on this presumption that a man who believes it is right to commit the crime crimel which he is called upon to try cannot be an impartial juror in the trial of that man ile he should not be influenced by such a motive as that thal if a man b believes eves eyes for instance a man called callea as a juror to try a man for murder if he believes the he man was rights right in committing the murder murde rhe he Is not nott zi a competent j juror ur por mor because he will be bean in fluen ced by that belief or if a man is charged with robbery if a juror who tries him believes it was right lor for the man to commit the robbery he is 13 not a tit fit man to ury try that man neither is he la in it a case of bigamy or polygamy if a man believes that it is right to practice poly polygamy g amy in a poly polygamy galdy gaizy case lie he cannot be an impartial aurora ecord ing to all human experience according to human nature aa it exists beca he cannot possibly bo be an impartial juror in a trial of that kind because the condic tion Is with him that the man is ri right 91 lit in practicing practicing poly polygamy gam F No notwithstanding twill stan in all human laws to the contrary if he believes polygamy is a command that it is a law pr proclaimed oci ocl aimed almed by tho the almighty it makes make s u no 0 difference defice how many human laws lawa are passed he will still believe that polygamy is right because lie he thinks there is a higher law governing him now the congress of the united states intended to exclude this class of men from participation in the duties of jurors from acting either as grand jurors or petit jurors and this is based upon the principle I 1 have |