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Show j THE GRAND JURY AFFAIR. ' j We are always in a ferment in Utah, j ,' . and .each day's doings are as a lottery j : from Vhich none can tell what will come j forth. In its rotation yesterday the x , wheel of fortune sent forth a genuine sen- '4 eation. "Assistant Prosecuting Attorney McKay came into'court and reported that : ! certain members of the grand jury re- l fused to find indictments under the Ed- : munds law against certain persons, and I I . that the aid grand jurors assigned as j ' : '"their tear i 'js such action the belief I ( i that the :rtVas rong in its construc- ; tiou of the. cohabitation clause of that ; I law, and they arrogated to themselves I the righl . determine what was and what I , was ik4 ti e law. The three grand jurors; i J Newell Clayton, Jacob Moritz and J. G. ' t "" . Davis, were excused from the jury, and j : the Court iB-med an open venire to the J f Marshal sik! i 'reeled him to summon i t three "trie and lawful men" to serve as I grand junta in T'ce of those excused. Such, in brief, ws Jie cause of the ex- I citement yn th ';,Lt yesterday from about middj y. i There are two nuln questions involved f ' in the proceeding, nnJ two only. The j ! . ' first one is : Has tlia Court a right to issue is-sue an open venire to make the grand ; jury panel complete, vrlien, for any I cause, certain members thereof are re- ' moved? The cause of the removal makes ' no difference as tc the power to issue an ! open venire, and removal "by death is no more a reason why an open venire should issue than removal for incompetency for any cause." The second question is : To j whom does it properly belong to deter- 'I mine what is the true construction of a i law, the Jndge or the grand jury? Those ! are the two questions involved in the sensation of yesterday. 5 In the Clawson case the question as to whether or not the Court had power to jj issue an open venire after all the names j on the jury list, which is made np in i . Utah according to the provisions of the I . Poland law, have been exhausted came up. j The Third District Court, before which the question came up, decided in the affirma- ; . tive, and issued the open venire. The ; case was affirmed by the Supreme Court j of the Territory, and from there was i taken up to the Supreme Court of the i United States on a writ of error, and there also the court below was sustained. It is true that that case was the case of a tra verse jury, but if the Court has the power j to issue an open venire to complete the S . panel of a traverse jury, there is no doubt li ... , J)ut that the same power follows in the ' -case of a grand jury. The panel not being j - complete, no .matter for what cause, there ;: is no question as to the power of the j' Court, to complete it, the doctrine laid down by the Supreme Court in the Claw-son Claw-son case being correct, and of this there can be no doubt. ! That question having been disposed of, ! j there remains the other : To whom does it j belong to' construe the law, the grand j jory or the Judge? To the Judge beyond all question. If the grand jury may de-1 de-1 termine what the law is in one case, they certainly may in another, and even the - plain provisions of the Criminal Code ; may be set aside as not being the law. Our code defines what shall constitute ... the crime of murder and its various degrees. de-grees. The Court in its instructions to the grand jury tells them what is mur-j mur-j der and what is manslaughter, and that it is their duty to find indictments against all who are charged with either crime, if ; ; . in their opinion the evidence is sufficient. ' Are the grand jury at liberty to say that ' the Court was wrong in its definition ; of these crimes, and to substitute some other definition therefor 7 .If such is the case, the grand jury are at liberty to say that the accidental discharge of a gun in the hands of a person, where such discharge dis-charge results in the killing of another person, is murder in the first degree. Take a further and more common as illustrative illustra-tive of the position of these three grand jurors. A recalcitrant witness refuses to answer certain questions propounded by the grand jury. To whom do they refer "the decision of the propriety of such questions,-to themselves or the Court? To the Court as being the proper power to construe what is and what is not the law. They have the right to ask any and all questions, but the Court alone has the power to decide upon their validity and ! to enforce obedience to such decision. ' In the very nature of things it could not! I . be otherwise, or else certain officers of the Court would be greater than the I Court itself. The grand jury without j j ' the power of the Judge behind them to pro- Si - tect them and enforce their rights would I be absolutely impotent. If certain grand I jurors refuse to . follow the law as inter- I ' preted by the Court, that simple fact A nukes such grand jurors incompetent, I and the grand jury Bhould be purged of i such. If the grand' jury cannot be purged of an incompetent member, then 1 : the presence of such incompetent mem- j' ber upon the jury could not be assigned as a cause for quashing any indictments which might be found by the grand jury .. .of which . such incompetent, juror may have been a member. .. There seems to be considerable confusion con-fusion in the minds of mahy'as to the right of the V grand : jury to decide upon the sufficiency of the evidence and whether it will warrant the finding of an r indictment, and the right to say what the law is. : Had the three grand jurors, Mr. Cyton, Mrl Moritx and Mr. Davis, stood upon their right to decide whether or not the evidence in the particular case they had under" 'consideration was sufficient suffi-cient to warrant .the finding of an indictment, it would no more have been -Judge Zane's right or duty to have purged them from the ... jury than ?of any .other .man. He : would have been , assuming todis-:: todis-:: charge their duties, as they assumed to - discharge his.. Supposing these men had undertaken to bring indictments in the particular cases before the grand jury, for - polygamy, alleging for ; such action that it was their province to construe the law, and not "the Court's, would the Court have been powerless to prevent such . a( proceeding and "been compelled com-pelled to try the - men so indicted although the- whole ,of ... the evidence evi-dence showed that the actual marriage took place twenty years ago and that 'the persons sought to be indicted were merely living in the polygamous relationship today? to-day? Supposing there were no grand jury to indict, but that trials in criminal cases were had on informations, would it be the right of the Prosecuting Attorney to say what was and what was not the law- rather than the Court's and to heed or to . disregard the Court's instructions aa he saw fit? Certainly not, and on the supposition concerning - the bringing of an indictment for polygamy, would the people and a portion of the presBof the city be crying out for the sacredhess of the right of the grand jury to construe the law? Scarcely, and it should be remembered by all that if the grand jury have the right to construe the law one way they also have the right to construe it another. . ( |