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

with the first step in the proceedings
TO obtain the grand jury which found
the Indictment. And, for the protec-
ton of the defendant himself, it would
necessarily be equally held that he was
entitled to claim that such proceedings
We're part of the prosecution against
him, because otherwise he could have
no right to question those proceedings.
The prosecution was one for offenses
created by statute of the United
States. That is the meaning of s 5 of
the Act. And it is not an objection
that can be urged by this defendant
that the same grand jury might have
been called upon to act upon other
offenses than those named in that Sec
ton.
| 1t is also urged that 5 8 does not
apply to grand jurors. The language
Is, ANY person drawn or summoned as
a 1uryman or talesman''-''any per-
son appearing or offered as a Juror or
talesman." In view of the fact that,
by ) OF the Act of June 23d, 1874, both
grand jurors and petit jurors are to be
drawn from the box containing the two
hundred names, and are to be summon
ed under venires, anda to constitute
the regular grand and petit juries for
the term, and of the further fact that
the persons to be challenged and ex-
cluded are persons not likely to find
| indictments for the offenses named in
! S 5, we cannot doubt that the words
''juryman'' and Juror" includes grand
juror as well as petit juror. There is
as much ground for holding that it in
| cludes the former alone, as the latter
alone, if is to include but one. 1t
must include one at least, and we think
it includes both. The purpose and
reason of the section include the grand
juror; and there is nothing in the Ian
guage repugnant to such view. The
use of the words "drawn or summoned
as juryman or talesman," and of the
words "appearing or offered as juror
or talesman," does not have the effect
of combining the meaning of 'juror' to
.petit juror" on the view that the
ordinary meaning of "talesman" refers
TO petit juror. A grand Juror is a
juryman and juror, and is drawn and
summoned, and it might well have
been thought wisest to mention a
salesman" specifically, lest the words
sjuryman" and ''juror" might be sup
posed not to include him.
1t is objected that none of the graud.
jurors who were retained on the panel
were Intercepted as to whether they
believed it right for man 20 live in the
practice of cohabiting with more than
one woman. As to this it is sufficient
to say, that the ehalleges were based
on the affirmative answers to the third
question, and that the statute only
specifies what shall be sufficient cause
of challenge, and does not compel the
making of the challenge or the asking
of the questions.
After the motion to set aside the in
dictment was Overruled, the trial was
had on plea of not guilty. In en-
panelling a jury, it appeared that the
list of jurors drawn and summoned for
the term, and also the general jury list
for the year, consisted of two hundred
names selected and returned for a
general jury list were exhausted, and
that no names remained in the general
jury box. Tbereupon the prosecuting
attorney, on the ground that the jury
exhausted moved the Court that an
open venire issue, to summon such
jurors as were necessary. The defend
ant objected to the issuing of an open
venire or any venire of jurors, on the
ground that there was no law author
iZing it. The Court overruled the OBJ
lection, and the defendant excepted
By an order of the Court, a venire was
then issued to the United States mar
shall for Utah Territory, commanding
him to summon from the body of the
judicial district fifty jurors. They
were summoned, and, on the return of
the venire, the panel was challenged by
the defendant because the jurors were
selected and summoned on an open
venire. The challenge was oyerruled
N h= M 4 10
took place in respect to
two further open venireS for thirty and
twenty four jurors respectively. OF
the twelve persons who composed the
Jury, eleven were obtained from those !
summoned under the open venires.
1t is assigned for error, that the petit |
Jury was illegally constituted, in that |
the court had no right to summon petit |
Jurors on an open venire. The argu- |
ment is, that the provisions of 5 of |
the Act, of juno 23d, 1874, are, on their |
face, exclusives; that the method pre-
scribed by that section for obtaining |
jurors is the only one that can be en-
ployed: that only the probate judge |
and the clerk of the court can, select |
the Jurors and make the jury list; that
the grand and petit jurors for term
must be drawn by the marshal from a
box containing names OF persons thus
selected, and constitute the regular
grand and petit juries for the term;
chat if, during the term, any additional
grand or petit jurors are necessary,
they mnst be drawn by the marshal, in
open court, from the same box; and
that, if the two hundred names are all
1rawr out, for grand or petit jurors, at
any time during the year, there can be
no more Indictments found or any more
civil or criminal jury trials had in the
court of the district, for the rest of the
year, becauseiti is provided in 81 that the
Jurors drawn from the box shall be
jurors only for the term, of which there
Are four in the year, and that the
names drawn shall not be again placed
IN the box until a new jury list is
made, which is to be done annually in
January. "A result so disastrous to
the administration of justice, so GER
tain to impair, if not destroy, public
and private rights, is not to be per-
nitted, unless imperatively required.
The Act of June $50, 1874, does not
prescribe the making of a new list by
the probate judge and clerk except
once year. in January, or the making
Oy them of an additional list, at any
ir1o durir1o the vaar. Put that Act