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

and each DAYS dofng5 are as loIUery
from which none can tell what will come
FORTH In its 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 resr fsc such action the belief
that the IT VAS wrong in its construc-
ton of the cohsbitation clause of that
law, and they srrogated to themselves
the rigt, o determine what was and what
was nc Ire 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 "tr,le and awful men" to serve as
grand jurors in r'ece OF those excused.
Such, in brief, was she cause of the ex-
citement on the s'Ioet yesterday from
about midday.
There are two main questions involved
in the proceeding, and Two only. The
first one is: 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 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
whom does it properly belong to deter
mine what is the true construction of
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 writ of error, and there
also the court below was sustained. 1t lis
true that that case was the case of ira
verse jury, but if the Court has the power
to issue an open venire to complete the
panel of traverse jury, there is no doubt
but that the same power follows in the
case of grand jury. The panel not being
complete. no matter for what cause, there
is no question as to the power of the
Court to complete it, the doctrine laid
down by the Supreme Court in the Claw
son case being correct, and of this there
can be no doubt.
That question having been disposed of,
there remains the other: To whom does it
belong to construe the law, the grand
jury or the Judge? To the Judge beyond
all question. If the grand jury may de-
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 de-
grees. The Court in its instructions to
the grand jury tells them what is muir
der and what is manslaughter, and that |
it is their duty to find indictments against
sll 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? If such is the
case, the grand jury are at liberty to say |
that the accidental discharge of gun in
the hands ola person, where such dis
charge results in the killing of another
person, is murder in the first degree. Take
a further and more common as 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 ofsuch uues-
tions, 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
be otherwise, or else certain officers of
the Court would be greater than the
Court itself. The grand jury without
the power of the Judge behind them to pro-
tect them and enforce their rights would
be absolutely impotent. If certain grand
jurors refuse to follow the law as inter
preted by the Court, that simple fact
makes such grand jurors incompetent,
and the grand jury should be purged of
such. II the grand jury cannot be
purged of an incompetent member. then
the presence of such incompetent men, ,
Der upon the jury could not be assigned ,
as cause for quashing any indictments
which might be found by the grand jury .
Of which such incompetent juror may
have been a member. ,..a
There seems to be considerable con-
fusion in the minds of many as to the
right of the grand jury to decide upon