Show WHAT THE RECORD SAYS THERE is a good deal of feeling in 1 the he community especially in the non C mormon portion of it residing 91 arding an effort that is being made to displace chief justice sandford and reinstate C S zane in his po gitil A large proportion of the antiles are opposed to the latter ng put back into the office in question estion that tha t class take the second that if a 9 change should oc cur u the man receiving the appointment ought to be a person who will minister the law without lindic tive wv eness reSSI that he shall not on ac of his prejudice go outside of 01 the law himself I 1 by resorting to that ira judicial methods they argue if care ca jg Is not exercised upon this auw point the complaint of the mormon people that they are permuted will be emphasized and supported by incontrovertible facts the question is in this connection has judge zane in his pursuit of mormons cormons Mor mons charged with a wm class of offenses departed not boly y from the spirit but the letter of the law upon this point it is only to let the record speak on may ard 1885 when parley p pratt was before the court for otence for unlawful co habitation cohabitation judge tadge zane expressed his regret that hati the law did not provide a greater penalty than imprisonment for six months and a flue fine of in au ison with this unmerciful senti t in addition to the maximum penalty of the law hard labor was included in the judgment that element of the sentence was subsequently eliminated being extra legal as well as extra judicial but the district attorney for whom mr mckay acted subsequently came to the relief of the judge as will be seen by the following record of a proceeding on the ath of october 1885 in the third district the grand jury came into court at 1180 1130 today and presented one indictment under the laws of the united states mr mckay then arose and stated that there was a matter he wished to bring to the attention of the court which had bad been discussed informally and otherwise in the grand jury room at least one member of the grand jury claimed the right to say whether he should find an indictment mentor or not when at the same time he admitted the evidence sufficient to warrant rant it claiming that it would be a usurpation on the part of the grand jury to find an indictment un der certain circumstances notwithstanding the evidence warranted it mr mckay then stated the objection was in relation to finding more than one indictment for unlawful cohabitation ina in a certain period The juror referred to said he would do no such thing in spite of being reminded that his oath required it under the dinst instructions ructions of the court under the circumstances mr mckay thought the j juror u incompetent competent la the court asked for his name and mr clayton was named as the juror mr clayton said mid yes he was the one and desired to correct mr mckay in one particular that he had not refused to indict where the evidence warranted that he had voted for indictment in the case mr mckay stated that the point he made was that the juror refused to find more than one indictment the juror assumed to say whether the law was waa correctly laid down by the court or not it was nas not disputed that the grand 4 juror J uror had a right to say whether the evidence was sufficient clent or not but the grand juror claimed that even where the evidence was sufficient the finding of more than one indictment was unconstitutional that the law of 1862 fixed the maximum punishment for polygamy and the edmunds law showed it to be the intention of congress to fix the utmost punishment for unlawful cohabitation which he termed the junior offense lense of at six months imprisonment and fine and to find two or more indictments against a man he might be punished to even a greater extent than for polygamy mr mckay mckae stated further that there was another juror he asked to have taken oft off for substantially the same reasons mr jacob moritz and he was informed that there were others mr davis stated that in certain cases he had the same opinion as mr moritz mr clayton was interrogated by the court and said mid he believed it was unconstitutional to find more than one indictment the constitution ution provides that excessive fines or unusual punishments punish menta shall not be imposed he wa said he did vote for indictment were the evidence warranted it tout but to go back and find an indictment foo for every day or every minute or week he would not indict yot tot withstanding the evidence showed the defendant had bad been living in unlawful cohabitation for foi friree fihrer years he would find but one bue indictment he had advised with no one talked with no one except perhaps pe his wife mr moritz and mr davis da vis thought that where parties had been indicted tried and convicted those partie sought to have a chance after they came out then if they live within the law they were ready to indict them the court then interrogated each of the other jurors as to whether he be took the same position but they all responded in the negative I 1 court mr moritz mr davis dahte and mr clayton I 1 am surprised gentlemen that after you took the oath you did that you would investigate and enquire ato all the matters that were brought before you and whenever the evidence evi denee was sufficient you would find the truth and nothing but the truth that you would not be influenced influent by fear favor or affection or by any reward or promise or hope thereof but in all your presentments you would present the truth the rv whole hole truth and nothing but the truth that you will state you will not do it clayton I 1 have stated that I 1 would and did so court the effect of your state ment is to that effect clayton I 1 dont understand it that way court men must be 16 careful when they take oaths moritz we had no evidence we take a vote on it court but you have no right to state stale you would not do it you cannot trifle with your consciences like that in this court it is astonishing that men have not more regard for their oaths than that where the evidence is sufficient you have no discretion whatever if it is sufficient to indict you must indict if itis it is not sufficient you cannot indict you have no more discretion than this court has when a case is submitted to it it if the evidence to is one way the court under its oath cannot find another if a case cage is submitted to the court if the evidence is with the plaintiff it cannot find the facts the other way so with a grand jury you 1 u have not the slightest diacre 11 alon 0 n you must move directly according to your oaths and find the truth according to the evidence you have no right to say you will not indict though the evidence may be sufficient you have no right to say a law is unconstitutional or wrong after the court charges you that it is the law it is the duty of the court coilet to charge you what the law is with respect to your duties as grand jurors and has so charged you gentlemen you are excused as unworthy to sit ou oa a grand jury next time you come before th the court and are questioned as you were in this case as members mein bers of the grand jury ju answer frankly and honestly anar and if you go on t the he grand jury you must be goverman governed ed by your oaths mr moritz mr DR dails djs and mr Clayton you may retire you are discharged from this grand 1 ury mry this afternoon mr mckay y made an argument in support of the proposition that the court had howerto power to nil all the vacant places in the grand jury he read from the decision of the supreme court in the clawson case the legality of the open venire proem process in obtaining a petit jury and that it was wag within the power of the court to adopt the open venire course in the present instance at the close of his remarks mr mckay moved that an open venire issue and the court ordered that it be for six names and be return returnable abB forthwith this proceeding was wae followed as the t he names on the jury list were exhausted upon n the return ret rn 0 octha e open venire J S scotta Scot tJ T b and A gebb gebhardt adt wore were selected to fill 11 up the grand jury thus it was made possible to send a man an to prison f for or the term of his natural life and fine him in a sum that could not be met by a millionaire for a simple misdemeanor solely because he happened to be a mormon prom from that time forward until the supreme court of the united states interfered for a single offense oftener of unlawful cohabitation by the segregation process men were sent to the penitentiary to serve terms on all the way from one to seven indictments or counts and were under fines in keeping with the same process thus scores of men were subjected to illegal imprisonment because the chief justice in a spirit departed from the requirements and purpose of the law and there is no knowing how long this great wrong would have continued had bad the parties thus unlawfully punished been unable to reach the supreme court of the united states that tribunal in its decision when the subject was brought before it asserted that all the authorities without a single exception cep tion were opposed to the position taken by the courts below this do decision of the highest tribunal I 1 in a the land caused a regular jail delivery of persons illegally incarcerated in the penitentiary let the proceeding above quoted be looked at from another point of view and its aspect is no more inviting for what reason were three yand jurors expelled from the pan el because they declined to do an illegal act their position being practically sustained by the supreme court of the united states the vacancies thus unlawfully created were filled by open venire process taken as a whole the proceeding has no parallel in civilized jurisprudence in what position did the decision odthe of the supreme court odthe of the united states declaring unlawful the action of the local courts in segregating the offense of unlawful cohabitation place the district attorney and the judge it placed them in one of two lights that of a vindictive district attorney and a prejudiced court or officials who were ignorant of the law the latter theory is not a feasible one like banquets ghost the apparition of a vindictive district attorney neland and prejudiced court will not down it pops up in the courts ever and anon as some person who did not formerly expect a fair trial comes into court with three or four indictments or counts over his head bead for the same offense and the court dismisses all but one the others not having been the off shoots of a fair prosecution and an impartial court this has been exemplified at every term of court since the jail delivery created by the decision of the court of last resort in relation to the continuous character of the offense of unlawful cohabitation should the administration malke make a change in the chief of utah and wish to put a man in the position who will not be governed by the law but show an unworthy example by going outside of it then charles S zane is the person wanted if it is the intention to administer the law according to its spirit and intent he is the antipodes of the man for the place we are sustained in this position by no less an aurb authority arity tb than an the supreme court of the united states the reason why many of the non mormon 1 P citizens are opposed to the appointment of charles S zane for chief justice of utah is not because they favor the mormon people the position being the other way but they say they want no color given to the cry of persecution 1 |