| Show THE FOWLER aase fondants fond ants motion to quah r the indictment antho court for the Third judicial district of utah territory motion to set the united aside indict M ment for big jolin fowler amy defendant into the now comes court to set the court and move him herein me ho not having been held to answer before alie findings thereof for tho following reison namely not because said found indor seil and presented as prescribed by law by a legally constituted grand jury the panel the that found and presented grand jury said indictment being illegal for the following reasons of the first because the notice drawing of said grand jury aoa aim given in Iho manner provided by law because said notice show upon Us face that it was given in the I third district court of utah dated at salt lake city july and II 11 emerson judge notice does it but nowhere in said appear that the grand jury to be drawn was for the district court for the third judicial district of utah territory nor does it appear in what said gi vennor that was bf raid district court for the third judicial district of said utah terri because said states that eighteen names will be drawn from the jury box from which to form a arund jury at the september term 1879 of said court when the law provides that the jurors so drawn and summoned shall ular grand jury and only fifteen ju bors could be legally drawn or could legally constitute tho regular grand jury or the panel thereof because nine of the names of the jurors on the panel of said grand jury that found said indictment were drawn from tha jury box without any notice whatever to wit john T labeon S J J F gilberson alexander majors L mattison boliver roberts james M barlow and james turner second because the number of ballots was not drawn from alio jury box to constitute the regular panel of the grand jury for tho september term 1879 of said court her because of fifteen ballots was not drawn from the jury box but instead there of eighteen names were drawn from the jury box for such grand jury because fifteen of the eighteen jurors whose names were so drawn from alio jury box were eligible and competent to servo as grand jurors for said term of said court yet they were not im paneled the arnd because the eighteen jurors whose names were so drawn from the jury box did botand could not legally constitute the panel of the grand jury for said term of said court nl though each and every one of enera had been legally qualified to kit as such grand jurors for said term of this courts because eight of the jurors whose names so drawn from the jury box were illegally excluded irom serving on said grand jury anen they and each of them possessed all the statutory qualifications and were eligible and competent to serve as grand jurors to wit R D Clar excused at his own request because ho was the superintendent of the steward mines and milla he not being a miller nor disqualified in any way whatever john barton D lien a angui A woolboy Woo lloy david E Brow itin xeo A t fuller and frederick Gos of whom possessed all the statutory qualifications and was eligible and competent to servo as grand juror and way not under any statutory disability acro challenged by phillip T van Zile Esq united states die brict attorney for utah territory or by mr bealby his assistant but not known to the statutes of the united tho territory ot utah andraid challenges not authorized by law yet they were sustained by the court and said persons acro illegally excluded from the jury for said f said court because thompson rittar was accepted and impanel led on said grand jury instead of thompkins Thomp kina utter choso whoso was on tho jury and was drawn froan box hen no such as thompson blitter on the jury list of this or was drawn froce tho jury ox because after six grand aurore ad been accepted including said thompson hitter and all tho others of tho eighteen names on the original list arn cn for tho panel jf said grand jury biad been rejected the court ordered that twenty additional names be drawn from tho jury box and summoned which was done when it only required nine juror to complete the panel af pf tho twenty names to drawn and summoned to serve on tho panel of said grand jury the following person to wit wil ciara Salki old clobert patrick wil liam kidd samuel bringhurst jr georgo coulam II 11 W hannibal william P affleck and J ayrom grant by said united santee district attorney or his said assistant for causes unknown s and unauthorized by law and ead challenges were by the court and said juror rejected notwithstanding each and all of them were legally qualified and eligible to servo as grand jurors for said term of said court and possessed all the qualifications of grand jurors and none of them were under any statutory eta or legal dl ability whatever because after accepting four jurors from said list of twenty adal names and rejecting the others the court ordered that nine additional names bo drawn from the auty on eald panel of tho grand jury which was done when only civo jurors were wanting to all alio llio panel of BauMl rand jury and on the bame day and before the nine persona whose names had been so drawn were summoned or examined on their vw dire the court ordered that additional names bo drawn from tho jury bos to on eaid grand jury which was done and from those seventeen numea the remainder of the panel for aid grand jury was made the following named persons to wit john barton D Hendrie keon smuel A woolley david E browning thomas wlee A L fuller frederick gow wik liam sall beld robert patrick william kidd bringhurst Brine hurst jr george coulam II 11 W hannibal william affleck and J grant were each and all illegally re from said pauol of eaid grand jury because they believed that polygamy was authorized by the divine law of bod although aliey stated on their voir that they would if on the grand jury find under tho united states or bigamy if the them bowed that anny gereon had violated ald and liable to under it 10 became the legal proper and number of names was not drawn from box to constitute i legal panel of the grand jury for the september term A D 1879 of court for the third judi cial district of utah territory in any or all af pf said drawings but each and all of said drawings were izod illegal nd void third ae igna ats end additional reasons why haidi indictment should be et eliat thompson ritter a member of the grand jury that bund eid indictment WM noh at the time taid iury wa im paneled nor cheri said indict nent was found an eligible juror as provided by laar because misname waa not on the jury list prepared by the proba te judge and the clerk of this court for the the jury ail for any other year nd his name was not drawn from the jury box of this court because alexander majors member of eaid jury WM not at the time eai djury was im paneled nor when said indi dment woe found an eligible as provided by law because he lad not resided in this third judicial district six months next preceding the time when he was elected by the probate judge and the clerk oc the district court of said district to el juror and because he was not th enand has not since beena tax payer in this terri and because he had geraed in this court as a petit juror within two years next preceding the impanel ing of said grand jury and the finding ot aid indictment to wit atthe april term 1879 of said court a appears from the record thereof ant hi namo was illegally returned tho jury box and drawn again grand juror for the tenn 1879 of this court mem ber of the said orand jury that foun dand presented said indictment not at the time aid jury wae when said indictment waa found an eligible juror as pro tided by law because he hd berred as a petit juror in this court within two years next preceding mi paneling of said jury and the finding bf aid indictment te wit at the april term 1879 of said court from the record thereof and pears returned to hie name wag illegally the jury box and again drawn there from as frand juror for the september term 1879 of this court because boliver M barlow L goldberg L B mattion and J F bradley were neither of them at the time aid alrand jury was im paneled which found and presented said indictment nor when said indictment was found eligible jurors as provided by law because their names had been drawn from the jury box during the april term 1879 of this court aa appear from the record thereof and they were summoned to as said term and were in attendance upon the court as such but their names were illegally returned fo the jury box and were again drawn as grand aurora for the september terra 1879 and they were mem b ers of the grand jury that found and presented aid indictment WILLIAM attorney lor defendant |
