Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1883-07-12

| defendant, upon the grounds
/ tirst-That no verdict has ever been rendered in
the said cause upon which any valid judgment or
l sentence could he rendered or entered.
/ second-That under the Constitution of Cafor-
MIA and the laws Of said State he defendant Is enti
tied 10 a t1al and determination by jury in all
cases Of homicide, and that in cases Of murder in
the first degree, before he can be executed the de-
feudnt is entitled not only to be found guilty by
| the jury, but 10 q determination by the jury, in
the exercise OF a legal discretion OF the nature Of
| TIE punishment TO be inflicted.
| Third-That in this 1t does not appear
whether il was the unanimous opinion Of the Jury
that the defendant should suffer death imprson.
ment for life nor doss it appear whether any how
Z many Of the said jury were IN favor Of Furnishing
| the defendant with death.
! FOUrth-That the verdict in this cause is iuccm-
plctc aud absolutely void, because the discretion in
determining the punishment to be imposed upon de.
PENDANT not exercised b. the jury, and it is not
compensation any Court or tribunal other than said
! fury 10 fix or determine the said punishment.
FIfth-That the alleged. sentence Of the Court in
the sad cause is void upon its face and involves the
| attempted exercise of powers by the Court, which,
| by the law, are vested exclusively in the jury.
SiXth-That the punishment to DO inflicted upon
the defendant has never been in any manner deter
mined by jury or other competent authority, and
that therefore he cannot be legally executed,
c i any order for his execution be legally made by
this Coult
seyenth-That it appears upon the face Of the
judgment in this that the defendant has never
been legally or otherwise indicted presented by
any Grand Jury, and that he proceeded against
by information made and fled by the District At.
torney OF the county OF Sacramento, after EXAM |
instion and commitment by magistrate Of said
county.
Eighth-That the said proceedings, as well as the
laws and Constitution Of California attempting to
authorize them, and the alleged verdict of the jury
and Judgment OF the said Superior Court Of the said
county of Sacramento, IN conflict with and pro.
hibited by the fifth and fourteenth articles OF
Amendment OF the Constitution of the United
States and they therefore void
Ninth-That the said defendant has been held n
for the said crime of murder by the District
Attorney OF the said county of Sacramento upon an
information filed by him, and has been tried and
illegally found guilty OF the said crime without any
presentment or ind ctment OF any grand or other
jury; ard that the Judgment rendered upon the
alleged verdict Of the jury in said cause and is
VOID, and, if executed will deprive the defendant
OF his liberty without due process Of law.
A. L. HART,
c. T. JONES,
Attorneys for Defendant
Hon, a. L. Hart then addressed the Court
with en- able argument il support of tbs OBJ
jsc;ion, speaking forty.ive minutes. He
said that Section 100 Of Penal Code provides
shat e person convicted Of murder in the FIST
degree shall be punished by death or im-
p-isonment for life, st the discretion of the
jury" This discretion thus conferred upon
the Jury necessarily involves determination
by the jury OF the nature of the punishment
inflicted, and no other tribunal or person can
exercise shat discretion or determine the
punishment to bo inflicted in cases Of con.
yicfion Of murder in the first degree. The |
decision OF tie Supreme Court resulting in a
contrary construction was brought about by
transporting The sentence and essentially |
charging its meaning, The language Of the |
provision bears but ore construction, az d is |
tco plain to admit Of any other. The verdict |
in this case failing TO determine tbs punish
ment is defective aud vcid, and no
defect by fixing the punishment which by |
law the jury alone can fix. The defendant |
has never been indicted By a grand jury. but |
was prosecuted upon On information fisd by |
the District Attorney. This is clearly pro- |
hibited by the fourteenth article of amend. |
ment of the Consultation OF the United States. |
That amendment provides that no persoa |
shall be deprived OF life, liberty or properly !
without due process Of law. The expression, !
due process Of law, was borrowed from the |
fitch article OF amendment of the same Con- |
stitutiou, and at the time of its adoption into |
the fourteenth article it had received a settled |
construction by the highest tribunal in the !
land. 1t was adopted with that construction. |!
The meaning Of 50 due process of law" is now |
well understood. That expression meann /
such process ss Ia expressly provided for in |
the Conati5ution, or if the Constitution fails |
to provide any particular proceeding, then |
Z
sacs 80 those settled modes of pro-
ceedings in use II England ana sane.
toned by the statutory or common |
law of that country, and adopted iato the !
| United States rs being suitable TO its insti- |
tutions prior 70 the adoption Of the fifth |
amendment. The case of Murray's Lessees |
W. The Hobcken Lsnd and Improvement |
/ Company, and the 18th of Howard United |
| States Reports, fully supports this view.
| At the time Of the adoption of these amend
meuts the laws of England as well SIS the
/ Constitutions OF al the States, required that
| persons ehoU!d be indicted by Grand Jury
before they could be prosecuted for felouies,
and the Constitution of the United States
expressly required al indictment in capital
and ether infamous offenses SIS q part OF
due process Of law" before any person
| could DO prosecuted for such an offe1se.
| Tae fifth article Of amendment, expressly
! commanding n Grand Jury in cases like this
contains constitutional recognition of the
Grand Jury system as part of " due procsss
of law" according to the opinions of the
! frsDers Of the Federal Constitution, snd
when afterwards that expression was used in
/ the fourteenth article of amendment. aud
msde applicable 90 toe States it endowed
| She Grand Jury systems of the several States
with Immortality" The defendant having
/ been convicted without - due process of law"
the entirs proceeding IS void.
! Counsel closed by stating that an appeal
would be taken from any Judgment that
might be rendered by that Court, and il
necessary she cAse would be carried into tie
Federal Courts on the constitutional ques-
items
Grove L johnson, on behalf OF The Peo-
/ pie, replied briefly. He cited the case OF
/ Kalloch VS.. the Supeyior Court OF San Fran
cisco (56 Cal, 22S) 10 which the Supreme
| Court gave unanimous decision adverse 20
the position taken by counsel on the question
Of the legality Of the prosecution By informs.
tion.
A case (49 Cal, l74,) was cited, showing
that the Supreme Court had also rendered
unanimous opinion, placing q construction on
Section $50 Of the Penal Code which de-
cided tie question of ths jury fxiHg the pun
ishment when the highest known to the law
was intended should be inflicted. These de-
cisiona, ia counsel's opinion, settled the case
IS far ss that Court was concerned.
TIE Court than ordered the prisoner re-
manded to the custody of the Sheriff until
tsis morning at 10 o'clock, when the decision
in the matter will be giver.
Simon Rsten was then brought into Court
The confinement has hsd about the same
effect on him as on Hurtsdo, but be appeared
If possible, more firm and natural while the
Court was proceeding in pr0nounciDg the
judgment, At the point WHARF the prisoner
was asEsu, nave you any lsFai reason why
the time should not now be specified? his
counsel, Eiweod Bruuer, announced thst the
care was exactly similar 10 that Of Hurtsdo.
and the same objections had been written
out and he wished to file them with the
Court, snd did not care to argue the question.
The Court then made the same order as in
the case of Hurtado.
INSTALLATION AND BANQUET.-Last even
lag District Deputy d. Hickey, assisted by
members of Capitol Council, No. 81, installed
the following officers of Valley Council, No.
60, L o. C. F.: P. C. c., Win. }. Davis; C.
c.. George W. jackson V. c., w. B. Mayd-
well; Prelate. r. I. Devlin; Secretary, f.
E. Ray Financier, I. B. Hull: Treasurer,
g. A. Luhrs Marshs A. A. Flint War
den, George Moss Guard 2. Potter Sem
try. A, j. Muir Trustees. James E. Mills,
George D, Blus and II. II. Paulk Medicsl !
Examiners, Drs. T. r. Grindiey and j. r /
Lsipe. 3 large delegation from Capitol |
Council wss present, end after installation all
repaired 10 the snts-room, where refresh |