Salt Lake evening Democrat. [volume] (Salt Lake City, Utah) 1885-1887, 1885-10-10
THE GRAND JURY AFFAIR.

forth. In it's rotation yesterday the
wheel Of fortune sent forth genuine sem
sation. Assistant Prosecuting Attorney
Mckay came into court and reported that
certain members OF the grand jury re-
fused to find indictments under the Ed
munds law against certain persons, and
that the said grand jurors assigned as
their reason for such action the belief
that the Court was wrong in its construc-
tion of the cohabitation clause OF that
law, and they arrogated to themselves
the right to determine what was and what
was not the law. The three grand jurors.
Newell Clayton, Jacob Moritz and j. G..
Davis, were excused from the jury, and
the Court issued an open venire to the
Marshal and directed him to summon
three "true and lawful men" to serve as
grand jurors in place Of those excused
Such, in brief, was the cause of the ex-
citement on the street yesterday from
about midday.
There are two main questions involved
in the proceeding, and two only. The
first one Isl Has the Court right to is
sue an open venire to make the grand
jury panel complete, when, for any
cause, certain members thereof are re-
moved? The cause Of the removal makes
no difference MS to the power to issue an
open venire, and removal by death is no
more reason why an open venire should
issue than removal for incompetency for
any cause. The second question is To
whom docs it properly belong to deter
mine what is the true construction OF a
law, the Judge or the grand jury? Those
are the two questions involved in the
sensation of yesterday.
In the Clawson case the question as to
whether or not the Court had power to
issue an open venire after all the names
on the jury list, which is made up in
Utah according to the provisions Of the
Poland law, have been exhausted came up.
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
of the Territory, and from there was
taken up to the Supreme Court of the
United States on writof error, and there
also the court below was sustained. It is
true that that case was the case OF ira
Vsrse jury but II the Court has the power
to issue an open venire to complete the
panel oil traverse jury, there is no doubt
put that the same power follows in the
case OF grand jury. The panel not being
complete no matter Tor what cause, there
is no question as 10 the power OF the
court To complete IT, the doctrine laid
down by the Supreme Court in the Claw
son case Dehs correct ana oil TINS there
can % no douDt.
ihat question having been disposed OF,
.here remains the other: 10 whom does it
oeiong 10 construe the law, the grand
Jury or the Judge 10 the Judge beyond
I'll question. II the grand jury may de-
termihe what the law Is IN one case, they
eerta'hiy may IN another' and even the
P'a!h provisions Oh the CRIMINAL Code
maybe SET aside as not being the law.
our cooe dehhes what shall constitute
'he crime o' ihurder ana i's various de-
grees' Inc Court IN its instructions to
the grand Jury tells them what IL muir
uer anu "hat is hiahslaughter' ana that
nis .he'r duly 10 ma indictments against
I'LL VINO are charged WIN either crime, IL
III their opinion the evidence is sufficient.