The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1885-05-10

supplementary measures; and that
such measures cannot be resorted to
unless affirmative statutory authority.
directed to the very point is to be
found.
The supreme court of Utah, in its
opinion affirming the judgment in the
present case, did not refer to any
StStute OF Congress, or of the Terri
tory, elrectly authorizing the open
venre, put rested the power to issue it
on the tact that such power was in
berent in the Court and was not forbid
den by any statute in force in Utah ;and
helo That it followed as an incident to
tne autnorlty and duty of the District
Court TO mold its sessions and try by
jury lndlctments for crimes. We con-
cur IN This view, SO far as the resort to
the open venire after the exhaustion of
the two hundred Names is concerned.
The Atm section of the Act OF 1874
preScribeS the rule to be observed, to
the extent in which it prescrlbes any
rule. 1t proceeds on the view that the
jury list of two hundred names win be
sufficient for ordinary purposes, or, as
it expresses it, for "the regular grand
and petit jurieS for the term" and it
provides what shall be done so long as
there are any names left in the box.
But 1t is silent as to what shall take
place when the names are all ex-
nausted. 1t does not forbid the ordi-
nary and well known resort to an open
yenire. Moreover, 3 of the Act of
1882, IN regard to prosecutions like the
present one, prescribes what shall
be sufncient cause OF challenge to
person "drawn or summoned as Jury
man or talesman," and what questions
may be put to "any person appearing
off o. H. -
thus recognizing "talesman'' as dis
tinct from ''juryman" or 'sjuror.''
The persons drawn from the box of
two hundred names are Jurors, and
are so defined and called in 4 of the
Act of 1874. Congress, therefore, in
using the word "talesman" had refer
ence to a person not drawn from such
box. The word "talesman'' is not
satisfied by referring it to the addi-
tiOnal jurors which 4 of the Act of
1874 says may and shall be drawn from
the box, if they "shall be necessary.n
during the term. They are not tales
men, in any proper sense, but are as
much regular jurors as those irst
drawn from that box.
The principle which authorized the
action of the Court in obtaining petit
jurors, in this case, after the statutory
measures had been exhausted, is sane
toned by authority. (Bac. 40, Juries,
e.: I Chit. Grim Lao, SIS; 2 Hale
p. c., 265, 266; United States D. Hill.
I Brock, 1856; Mackeyv. The People,
2 Colorado, -; Stone D. The Peo-
pie, 2 Scdmm., 326; Srtughan D. The
State, is Ark., 81, 43; Wilburn o.
The State, 81 3D., 1913, POI; Gibson D.
The Commonwealth, 2 Virq. Cases,
III, I2I; Shafer .. The State, /
Hoto., (Miss.,) 23S, pa; Woodsides
D, The State, 2 3D., 655, $50; State ..
Harris, Supreme Court of Lo,oo, Sep
TENDER, 1884, II Chic. Legal Ne,os,
50 By 5 1858 of the Revised Statutes,
the District Courts of the Territory
have common law Jurisdiction, and,
unders 1874 of the Revised Statutes
and 1,061 of the Compiled Laws of
Utah of 1876, those Courts have orig
lnal jurisdiction in criminal cases. BY
5 217 of the Criminal Procedure Act of
Utah of February 22d, 1878, all issues
OF fact In criminal cases must be tried
by jury, and by 5 the defendant in a
criminal action is entitled to a speedy
trial. A venire to summon Jurors is a
writ necessary to the exercise of the
jurisdiction of the court and agreeable
to the principles and usages of law,
where it is not forbidden or excluded,
and where the affirmative provisions of
law have, so far as they extend, been
first observed. In United States as.
Hill, (before cited,) Chief Justice Mar
shall, speaking of the law as it then
says: SIT has been Justly OBJ
served, that no act of Congress directs
grand juries, or defines their powers.
By what authority then are they sum-
and whence do they derive
their powers? The answer is, that the
laws of the United States have erected
Courts which are invested with Grim
inal Jurisdiction. This Jurisdiction |
they are bound to exercise, and it can |
only be exercised through the instru- |
of grand juries. They are, |
therefore, given by necessary and in |
implication. But, how far
is this implication necessary and in |
The answer is obvious. |
Its necessity is co-extensiye with that |
Jurisdiction to which it is essential"
The cases to which we are referred |
BY the plaintiff in error were cases
where express statute provisions had
been diSregarded or violated. If, in
this case, an open venire had been
issued before the two hundred names
we're exhausted, differeut question
would have been presented. aig
The record shows no error, and the
Judgment is affirmed.
True copy. p
Test: JAMES II. MCKENNA,
Clerk Supreme Court U. S.