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


tanned in q reasonable time, othe
names may be drawn in the same man
ner. The grand turv INNS
inquire into the case of every person
Imprisoned within the district on ,
Criminal charge and not indicted. >
jury list of two hundred person
from which to draw grand and petit
Jurcrs for the Third Judicial Distric
Court for the year 1884 was made, Ger
tilted and filed in the Office of the clerl
OF the Court, under the above-citeC
provisions of the Act of June 90, 1874
ana number was set opposite TO eacl
name. Those having even numbers op-
poSlte to their names were selected By
the probate judge, and were reputeC
MormonS, and those having odd mum
bers opposite to their names were Sc
lected by the clerk of the Court, anC
were reputed not to be Mormons. Or
the 31st of March, 1884, at session o.
the Court, thirty names were drawn
from the jury list, from which to EN-
panel q grand jury for the April Term
1884. OF these thirty, thirteen had ever
numbers. and seventeen odd numbers
OF the thirty, five did not appear OF
were excused, leaving twenty five, OF
whom ten had even numbers and tifteeI
odd numbers. Those TWEEN y-five per-
persons, during the proceedings to
empanel the grand jury, were all called
and sworn and examined as to their
qualifications as grand jurors, fifteen OF
them being each asked the. following
questions: "Do you believe in the doc
trlne and tenets of the Mormon
church? Do you believe in the doctrine
of plural marriage, as taught by the
Mormon church? Do you believe it is
right for man to have more than one
undivorced wife living at the same
time" Each of the fifteen persons so
| Intercepted answered the questions
affirmatively, each was tbereupon chal-
! lenged by the prosecuting attorney, and
the Court allowed the challenges, and
excluded each of those fifteen persons
from the grand jury. Thus every one
OF the twenty-five persons who was a
reputed Mormon was excluded from
the grand jury. Each of the fifteen
persons so Intercepted had all the
qualifications prescribed by law for
grand jurors, unless disqualified by
been charged with, or held to answer,
the offenses charged in the Indictment,
or any criminal offense, at the time the
grand jury was empaneled; the exam
nation of the persons called as grand
Jurors, and the challenges, were wholly
conducted and made by the prosecu-
ting attorney; and no questions were
propounded to, or answered by, per-
sons with odd numbers opposite their
names, respecting their religious be-
lief After those fifteen persons were
excluded, only ten grand jurors
accepted by the United States
remained, out of the list of thir-
ty originally drawn; and thereup-
on the Court ordered a drawing of
ten additional names from the general
list of two hundred, which was done,
three having even numbers, and seven
odd numbers. A venire was issued for
the ten, and six of them appeared,
all having odd numbers, and FIVE
of the six were added to the ten &C
cepted, and the jury, as empanelled and
sworn, consisted of those fifteen, all of
them reputed non Mormons, and it
found and presented the indictment
against the defendant.
The challenging and exclusion of the
fifteen persons is maintained to have
been proper, under 5 of the Act of
March 22d, 1882, before referred to, and
which reads as follows: THAT in any
prosecution for bigamy, polygamy or
unlawful cohabitation, under any stat
ute of the United States, it shall be
sufficient cause of challenge TO any per-
son drawn or summoned as a juryman
or talesman, first, that he is or has
been living in the practice of bigamy,
polygamy, or unlawful cohabitation
with more than one woman, or that he
is or has been guilty of an offense pun
ishable by either of the foregoing sec
tions, or by section fifty three hundred
and fifty-two of the Revised Statutes
- -. Cfat fhn A0f of Trr1xy
first, eighteen hundred and siXty-two,
entitled AN Act to punish and prevent
the practice of polygamy in the Terri
tories of the United States and other
places, and disappearing and annul-
ling certain Acts of the Legislative AS
sembly of the Territory of Utah. or,
second, that he believes it right for a
man to have more than one living and
undivorced wife at the same time, or
to live in the practice of cohabiting
with more than one woman; and any
person appearing or offered as a juror
or talesman, and challenged on either
of the foregoing grounds, may be ques-
toned on his oath as to the exist
ence of any such cause of chal-
lenge, and other evidence may be in
troduced bearing upon the question
raised by such challenge; and this
QuEStlOu UC ny bIlC D..
But as to the first ground of challenge
before mentioned, the person cha1-
lenged shall not be bound to answer If |
he shall say upon his oath that he de-
clines on the ground that his answer
may tend to criminate himself; and if |
he shall answer as to said first ground,
his answer shall not be given in evil
dence in any criminal prosecution |
against him for any offense named in
sections one or three OF this Act; but
if he declines to answer on any ground
he shall be rejected as incompetent"
AS each of the fifteen persons chal-
lenged and excluded, answered. when
questioned on oath, that he believed it
right for man to have more than one
wife living at the same
time, he was properly excluded, if 5
of the Act applied to the case.
1t is cOntended that that section did |
not apply because the defendant had
not been held to answer, and there was |
no prosecution against him. The |
language of the section is, that Sin |
any prosecution for bigamy, polygamy, |
or unlawful cohabitation, under any
statute of the United States, it shall be
sufficient cause of challenge, etc. tbs |
urged that the proceedings to empanel |!
a grand jury were not part of prose- !
cutiOn and that the prosecution could |