| Show JUDGE ZANES DECISION I 1 in the district court for the third judicial district of the territory of utah decision of the we court in the motion of the application of oscar C vandercook for a writ of habeas corpus friday dec 11 the court delivered the following opinion the sheriff in his return to this writ of habeas corpus j justifies the arrest and detention ot ol the petitioner under a warrant issued by the justice of the peace each on a complaint char charging charing ing the plaintiff iain lalu tiff with a violation resection of section 1996 chapter 8 of the compiled laws of utah 1876 this section is as follows every person who keeps a house chouse ol 01 ill fame in this territory re aborted to for the purpose of lewdness or w who h wilfully vil vii full tuli orti resides asid esin in such house or whore who resorts thereto for lewdness is guilty of a misdemeanor demeanor Is 11 this section describes three of lenses tenses first keeping a house of lof ill fil fame resorted to for purposes of prostitution and lewdness second f residing in such house bouse and third reporting thereto for tor lewdness the petitioner Is charged with the last ast offense and conns couns counsellor counsel ellor eilor for petitioner insist that anis this offense is described in the statute in such va vague ae and uncertain terms that the court cannot say that it describes any offense and second if it does describe any of nence fence the term lew lewdness driess is equivalent to prostitution and a male person cannot be guilty of prostitution in a legal sense and therefore his conduct being a male person does not come within the definition and an act of adultery or fornication is private or open lewdness dess ness the word lewdness may be used in many connections and its meaning thereby be fixed As used in the section quoted there id is ino no difficulty in ascertaining its meaning the law is aimed at bawdy houses and adopts three modes of punishment to suppress them one Is by punishing the keeper another by punishing uni shing persons who wilfully reside in the house and the other by lay puishing pushing persons r resorting thereto f for or those practices which characterize acte such houses each and all hend lend to suppress the evil the injury to society would close by its suppression it would cease to be a bawdy house if all persons were prevented from going to it for lewdness lew diness the business would be closed up and the house suppressed it would be unreasonable to hold that the term lewdness ess means the lewdness of females alone in the connection as foundren found men is as well as women can be guilty of buch huch and if so they are equally bilty under similar circumstance circumstances i T the he second objection is that the warrant does not describe the ot of with sufficient certainty the language is that on the tit fit fifth th iday of august 1885 at this city and territory SJ S J fields did keep a houe of ill lame resorted to for t the he purpose of prostitution and the petitioner well knowing the louse house house to be a house of ill fame did lid unlawfully then and there resort thereto for lewdness the time and place of the offense is given the house and its character is mentioned and the knowledge there thereof of by defendant that he unlawfully lawf ully resorted thereto for lewdness the act and the purpose for which he went is stated the offense Is 3 described in the terms of the statute this is usually held guff sufficient lelent in an indictment in other words as a general rule it is sufficient to describe the offense lu in the language of the statute there are exceptions some statutes refer to common law offe off offenses elises uses generally without a particular description in s uch pilo cale ft t Is 16 ta uso use 0 other oiher in guage aage here the offense applies to all classes of persons construe the section audit anait merit mentions ions ious a particular act time and place and the purpose the offense consists of the act and intent here idis itis it is stated for lewdness which is to say that nhe rue party went to the house for the purpose of lewdness with the intention to commit lewdness my impression is that this complaint sufficiently describes this offense it certainly deti den eribes it so that persons of ordinary intelligence could understand what was meant by it that is sufficient clent the statute makes the off offense ense a misdemeanor and the statute of 18 1878 s provides to that misdemeanors demeanors mis shail shall shail be punished unis ried tied by fine less than three hundred ired dollars and by Itil imprisonment not exceeding six months the statute of 1 1884 dicki gives v es lus jus justices t ices fees of the peace jurisdiction jurist of misdemeanors in terms terras it is insisted the law giving justices of the peace jurisdiction of misdemeanors is of no effect lecause the legislature of the territory had no power to pass it the powers of the legislature are enumerated in the acts of congress relating latin 1 ta utah and the first one is the act approved september oth 1850 among other things the ninth section provides the jurisdiction of the several courts herein provided for both appellate and original and that ol 01 the probate courts and of the justices of ahe the peace shall be limited bv law As limited by law should be held to mean as limited by any valid law limiting the jurisdiction ahdor and of ourse course any act c bof of congress conc Cons ress limiting such jurisdiction would be binding unless in violation of the constitution of the united states and as far as the jurisdiction is limited limiter by the acts of the territorial legislature it would woul be valid lif if the legislature possessed the power to pass the law section 6 of the act re ferretto is as follows the legislative power of said Tarri territory tory shall shail extend to all rightful subjects of legislation consistent with the constitution of the united states and provisions of this act it forbids any law with respect to real estate and for the location of property of the united states and providing that the legislative assembly and governor shall shail submit to congress the laws passed by thein them and if it is disproved shall be null and void the question is as to what is the effect f act of this language that the legislative power of said territory shall extend to all rightful subjects of legislation con consistent consists n t with the constitution of the united states and the provisions of this act the power is broad as I 1 have stated As I 1 have havle stated the jurisdiction of the justices courts is a lightf rightful ua subject of legislation it ia is a subject upon which every state in this country in this union and all of the territories have legislation and there can be no controversy as to that fact within reasonable limits section 3 sot ot the act ol 01 congress approved roved april ath 1874 relates also to thel jurisdiction of justices courts The language is the district court shall have lave exclusive original jurisdiction in all suits or proceedings in chancer chancery and in all actions at law in which chic h ta the sum or value of the thing in controversy shall be three hundred dollars or upward and in all controversies where the title possession or boundaries of land or mines or mining claims shall be in dispute whatever their value except in actions for forcible entry or forcible and unlawful de detainer talner and they shall have jurisdiction in suits for divorce it gives the district court exclusive jurisdiction of cases where the sum or value of the thing in controy controversy ersy is and upwards of course that excludes the jurisdiction of justices of the peace when the sum or value of the thing in controversy is goo the sum referred to here of course relates to value and it dont dond relate to imprisonment the real controversy in this case Is as to whether the defendant is eulily guilty of the conduct charged and inasmuch as it involves the imposition of a fin fani it may be said the fine Is in controversy andio and so far tar as it relates to imprisonment it may oe be said that the liberty of the person is in controversy L liberty or imprisonment is not mentioned ti on ed in the law J lust just ref referred erred to there is another provision ia in this same section which Is as at follows the jurisdiction heretofore conferred on justices justice of the peace bv by the organic act of said territory is ii extended to all cases where the debt or sum shall be less than 11 this limits the j of al all ail leases cases for debts or sums of money claimed but has no reference to Imprison imprisonment rhe the nt for misdemeanors and it is argued that it is unreasonable to assume that congress intended to limit the fine to and permitted a cout coutt t jurisdiction of a case where the imprisonment might besix be six months it would seem that the imprisonment would be more important than the fine but the statute does not refer to the imprisonment it Is said if there is no limitation to this power of territorial legislation then it may give justices of the peace general jurisdiction in all criminal esses but I 1 am disposed to believe belleve tind find and I 1 I 1 presume the court would have no hesitation itt iff holding the law void if the legislature should attempt to live jive give glye justices ef of the peace jurisdiction in a cases of felony such action would be without authority the history of such jurisdiction lu these courts would be without a precedent the court would dould resort to the principle applied applied by the supreme court of the un ted tod states to an aa act ot of the ter it jar to give the he probate courts ot of this territory general jurisdiction in all gases eases ero Fro from inthe luthe the analogies of the organic act let relating to courts in utah and f rom the general history of probate courts it was presumed that congress did not intend to give the territorial legislature power to provide that probate courts should have jurisdiction in all cases that the j jurisdiction of those defined and nevert possessed stach such power and the same reason would apply to the just justices ices icea of the p peace bace the important question here upon this point is as to whether there Is a precedent for tor this action of the territorial t ae legislature gi slature without having examined the various acts of the legislatures of the dlf dif terent different states I 1 am of the opinion that it would be found in ILI some state states they have jurisdiction of misdemeanors where the punishments is by fine and imprisonment in others their jurisdiction would be confined to such cases as one simply punished by fine but in others it would be found f I 1 think that justices of the peace have jurisdiction in cases where the punishment is by fine and imprisonment just Juet justices ices of the peace and police magistrates of the various states have jurisdiction of the offense of keeping bawdy houses of residing therein and f frequenting re qu enting such houses bouses and the offenses by lewd and las lascivious elvious conduct the mere fact that the legislature has given iven a greater punishment to this offense vense athanis than Is usually given to those cases where justices of the peace and police magistrates have jurisdiction would not authorize the court to hold the provision in question void the right of appeal Is left to the party it Yn justice injustice through incapacity or dorany other reason is done it is argued f urther further that the ath section page of the laws of utah 1834 forbids prosecutions of this offense f ense euse in any other way than by indictment the section is that the first clause of section of said act be amended so as to read as follows all ali public offenses triable in the district court except cases appealed from the justices courts must be prosecuted by indictment 11 and inasmuch Inas duch as the justices j of the peace have no authority to summon a grand jury they have ino no jurisdiction aud and inasmuch as this party was not indicted by the grand jury against him the proceeding is illegal it is also claimed that this section Is in conflict with the statute giving justices of the peace jurisdiction of misdemeanors in the case of ferris against higley 1 2 wallace page the court says the common law and chancery jurisdiction here conferred on the district court and supreme courts is a jurisdiction ve very ample and very well understood under it includes almost every matter whether of civil or criminal cognizance which can be litigated in a court ot justice and further in the case the court says the fact that the ja judges of these latter courts are appointed by the federal power paid by that power that other officers of these co courts arts are appointed and paid in like manner strongly repels the idea that congress in conferring on these courts all the ahe powers of general jurisdiction both civil and criminal intended to leave to the territorial legislature the power to practically evade or obstruct the tue exercise of those powers by conferring precisely the same jurisdiction on courts created and appointed by the territory the territory would not have the right to oust the district court of its jurisdiction to try all cases of misdemeanor the jurisdiction is conferred by act of congress and of course it cannot be ousted dusted as the supreme court has held by an act of the lexis legislature of the territory but the ques tion arises whether these two provisions can stand together the rule is that where different acts relate to the same subject they should be harmonized moui moni zed unless they are so opposed that they are irreconcilable the language is all public offenses offense 8 triable in in district courts except cases appealed from justices courts must be prosecuted P to secured by indictment I 1 am disposed to hold that all offenses commenced in the district court and triable in it shall be commenced by indictment but it dont apply to prosecutions commenced and triable in the justices court and that both provisions should stand together I 1 am of the opinion that the district court dourt and the justices ices court have concurrent jurisdiction in thi this class of offenses and having havluj concurrent jurisdiction the one th that T gets jurisdiction first Is the one to try the thie case there was another point raised with respect to the constitutionality of this law it is held that the constitution gives to the defendant in a case of this character the right to an indictment article 5 of the constitution is as follows no person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury except in cases arising in the land or naval forces etc these crimes of keeping keepin got of a bawdy abardy house the residing in it and frequenting bawdy houses has never been held tze tae to be infamous crimes it may be iu in the estimation of some ir damous infamous but courts have not so held article 6 provides in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial the lury jury ury ot of the state and district wherein the crime erime iball have been committed which district shall shail havo have boen pro alq af by law 9 qa nd q bo 40 informed of the nature of and cause of the accusation to be confronted with the witnesses etc there is no question but the common law jury means a jury of twelve men but this provision has not been held to apply to inferior misdemeanors and sume some courts have held that the right of trial by jury is preserved if it can be secured by appeal as it may in this case if the justice of the peace has jurisdiction of of the case and is authorized to summon a jury though the statute may say six men if it t the e defendant claims twelve he must have that number if it the constitution gives it to |
