| Show AN grand JURY juby THE indictment AGAINST johs JOHN FOWLER FO VY LEB VOID MOTION TO SET ASIDE OUR readers are aware that tha grand jury of the present term found an indictment against john fowler ot of ogden ogdon for bigamy and that hia hla talented attorneys richards and williams also of ogden demurred to the indictment the following motion to set it aside on the substantial grounds clearly presented has been prepared by those gentlemen and from the racca in olie lie case it will be a difficult matter to dispute successfully the reasons advanced in this document we advise our readers to peruse it carefully when it will need no explanation and to note how those who are ate BO flu anxious to prove the violate the jaw law themselves in their eagerness to pick jurors whom they think likely to act according to their they imagine would not be rabid on one particular far jar indictable offense lenee of we hope the points herein set bel fortu foith will receive from the court I 1 the consideration to which they I 1 are entitled entitle dr I 1 in the third district Court fop for the third judicial nadi radi ofal cial district of ol ufah ulah territory the united states I 1 vs john fowler J MOTION NOTION TO td SET ASIDE indictment FOR BIGAMY an now comes the defendant into court and moves the court to bet aside the indictment against him heleln helein he not having been held to answer before the findings thereof for the following reasons na mely 5 because said eaid indictment wa was a L not 6 t found indor indorsed sed and presented ted as prescribed by law by a legally con eon coh grand jury the panel bf the grand j jury ury that found and pre bedsted baid said indictment being illegal for the following reasons reasone first because the notice of the drawing of said grand jury given in the manner provided by 4 law 1 because said notice knovs upon its tace face thatis that it was wab given aa in the third district vorhof Vort arf of utah li dated at salt nak lak OW chiy july 24 1879 and signed philip H emerson Emer bou aou judge but nowhere in bald eaid notice does it appear that the grand jury to be drawn was for the district court for the third judicial district of utah territory nor doea it appear in what county baid bald bald eaid notice e was wag given nor tha that t said I 1 philllp phillip H Ek einerson emerson nerson was the judge of bald baid district court for the third judicial district of said utah territory 2 became because said not notice ice IS names will bo be drawn from froal the tho iury jury box from which to borm torm form a grand jury at the term 1879 of said court when the law provides that the jurors BO so drawn and summoned matl shall conati regular grand jury and only 15 jurors could be legally drawn or could legally constitute the regular grand jury or the panel thereof 3 because nine of the names of the jurors on the panel of said eaid grand jury that found said baid indict r ment were drawn from the jury box without any notice whatever to wit john P lawson B S jo J nathan thaus thans J T F bradley 3 0 M gilberson alexander majors ii ja B mat tison tisou Ho roberts berts berta jamos james M barlow and ja jamer mer turner second because tho tho the requisite number of ballota was waa not drawn from the jury box to constitute the regular panel of the grand jury for the september term 1879 of baid eaid court 1 because the requisite number of 15 ballots was not drawn from the jury box but instead thereof 18 name names were drawn from the jury box for such grand jury 2 because 15 ot of the 18 jurors whose names were ao so drawn from the jury box were eligible and competent to serve as grand jurors for said term of said court yet they were not impanel led aa as the grand jury 3 because the eighteen jurors whose names were so drawn from irom the jury box did not and could not legally constitute the panel of the grand jury for said eaid term of said court although each and every one of them bad been legally qualified to act as such grand jurors for said term of this court 4 because eight of the jurors whose names were so drawn from the jury box were illegally excluded from serving on said grand jury when they and each of them possessed all the statutory qualifications and were eligible and competent to serve aa as grand jurors to witt wit B R D clark dark was excused at his own request because he was the of the stewart mines ml nes nea and mills he not being a miller nor disqualified in any way whatever john barton 0 dhen dr drick drlek ickson son aon samuel A woolley y david E browning thomas W lee A ii fuller faller and frederick goss each of whom possessed all the statutory qualifications and was eligible and competent compe tent teat to serve as a grand juror and was not under any statutory disability were challenged by phillip 11 van vanzile zile esq eq united states district ney for utah territory or by mr beatty beattys his assistant but not for any ny cause know n to the statutes of abe ahe he united states or the territory qt 0 utah and waid laid challenges were noi lof authorized bylaw by jaw yet they were sustained by the court and said persons were illegally fiftal ly excluded from the panel of the grand jury i for said term of bald court 5 because thompson ritter bitter was accepted an and d impanel led on eald grand jury instead of Thompkins s ritter bitter whose name was on the jury list and was drawn from the jury box when no such name as thompson ritte ritter r was on the jury list of this court or was wag drawn from the jury box 6 because atter after six bix grand jurors furors had bad been accepted including said thompson bitter and all the others of the eighteen names on the original list so drawn for the panel of said grand jury had been rejected the court ordered that twenty additional names be drawn from the jury box and summoned which was done when it ift only required nine jurors to complete the panel 7 because of the twenty names iiames no wo drawn and summoned to serve on the panel of said grand jury the following eight persons persona to wit william robert rpbert patrick william kidd samuel bringhurst jr george gt orge coulam H W hannibal william P Afflec kand J hyrum grant were challenged by said united states district attorney or hla hia said eald assistant for causes unknown nto to and unauthorized by law and eald challenges were sustained by the court and said jurors rejected notwithstanding each and all of them were legally qualified and aud eligible to serve servo es as grand jurors for said term of baid said court and possessed all t he the 8 statutory ta qualifications of grand jurors and none of them were under any statutory or legal disability whatever 8 because Beca use uEe after accepting four jurors from said list of 20 additional names and rejecting the others the court ordered that nine additional names be drawn from the t 1 he jury box to serve on eaid panel of the grand jury which wab was done when only only five jurors were walt wait wanting ting to fill the thi panel of Eald grand jury and andon on the same bame day and before the nine persons whose names mames had been won eo so drawn were summoned or exam examined ni on their voir dire the court ov ordered that eight additional names be drawn from the jury box to serve on said grand jury which was done dond and from those seven teen names the remainder of the panel for said grand jury was made 9 because the following allowing named persons to wit john barton 0 D hendrickson samuel A woolley david E browning thos thoa W lee le A JM L fuller fullers frederick goss wm Bal sal kield bield robert patrick j Wm Kidd samuel Bring hurstJr george coulam H W hannibal wm P affleck and J hyrum grant were each andall and all illegally rejected from said eaid panel of baid eaid grand jury because they beile belle bellevou vad vod that polygamy was authorized by the divine laws of god although they stated on their voir dire that thay would if on the grand jury ind ond indictments under the united states statute against polygamy or bigamy if the evidence before them showed that any person had violated said statute and was liable to prosecution under it 10 because the legal proper aad and aa requisite number of names was not drawn from the jury box to tute a legal panel of the grand jury a for the september term A D 1879 aj of the district court for the third judicial district ol 01 utah territory in any or all of said bald drawings but each and all of said drawings were unauthorized dj illegal and void third the defendant also assi assigns gith as further and additional reasons why said indictment should bo be et est aside r 1 that thompson ritter bitter a ber her of the grand jury that found said indictment was waa not at the s time said jury was lm impanel aneller anel led nor when said indictment was found fatin d bi an eligible juror as provided by law because his name was not on an the jury list prepared by the probate judge fudge and the clerk of this court eda ebu urt for fon or the year 1879 nor on we the jury list for tor any other year and his hia name was not drawn from the ju jury ry 4 4 at box of this court 2 L because became alexander Major J orren orrea raa ran member of said grand was waa not at tho the time said jury was im paneled nor when said indictment wab waa found an eligible gli bli gible juror as na pro aided vided bylaw by law because he hd had not resided in this third Judi judicial bial district six months next preceding the time when he W WAS wab selected by the probate judge and the cleric of the th district court of sald eaid district to serve as a juror and because he ivas was wab a not noi then th enand and has not sineo since been a taxpayer in this terri territory tor hirl anil because he had served in this court as a petit juror within two years next preceding the panelling im of said grand jury and the finding of said indictment to wit at the april term 1879 1679 of said court as appears from the record thereof and his name was illegally returned to r the jury box and drawn again as grand juror for the september teim li 1879 of this court 1 3 because 0 M Iberson gilberson GI a member of the said grand jury that found and presented said indictment was not at pit the tho time baid said lury jury was paneled em nor when said indictment was found an eligible juror as provided by law because he ho had served as a petit juror in this court within two years next preceding the Im panelling of said jury and the finding of said indict ment meat to wit at tho april term terin 1879 of baid eaid court as appears from P the record thereof and bs bathe name ai was illegally returned to the fura jury box na again drawn 1 i a grand juror for the september term 1879 of thib thir court 4 because boliver jag jaa AL barlow L Gold goldberg belk li B ba mattison Mattl matti Bon son and J P F bradley were neither of them at the time sali sahl grand jury was empanelled empanel led which found and presented said baid indict ment meat nor when said indictment was wah found eligible jurors jurord as provided by law because their namen names bad been drawn frocine fro tro nine nune jury box during the april terror 1879 of this court as appears from the record thereof and they were summoned to serve as petit jurors jurord at said term a ani and were wese in attendance upon tho the 1 court ecart as such but their names were illegally returned to the jury box and were again drawn there thero fi from as grand jurors for foi ii lt term 1870 and they were members of the grand jury that found and presented said indict ment WILLIAMS Attorn attorneys ep for defendant 41 |
