, 1891-01-24
SOME FINE LAW POINTS
Constitutional Questions Involved
in the Cattle Cases.
Shall Women be Forced TO Serve
on Juries7
The Question of Kingen's FOrclbIe
Abduction Revived.

The Nebraska lawyers engaged IN de,
Tending the SCOTS Bluff county cattle
thieves do not appea. to be discouraged
by defeat. Brantner is the next maa on
the list. and yesterday the opening gun
in his defense was fired BY his attorney.
Brantner is to be tried under the lufor-
nation system established by the last leg
stature. The Law went into effect on
Jan. 10, 1891. The information fled
against Brantner by Prosecutor Davidson
alleges that the defendant stole certain
cattle on the first day OF last August.
Yesterday a plea in abatement to the
jurisdiction of the court was filed by Mr..
St. Raynor. The plea presents some very
nice law points. Should the plea be over
ruled, the ruling of the court upon the
question can be brought before the fed
eral courts. Ms il involves constitutional
questions. In fact, in all three of the
toases-Kingen's. McKinney's and Brant-
ner's-questons have been raised which
will admit the cases to the United States
courts.
Brantner's attorney presented the fol-
lowing claim in support of his plea in
abatement. Section 9, article l of the
Declaration OF Rights in the Wyoming
constitution provides that the right of
trial by jury shall remain inviolate in
criminal cases, but that a jury in civil
cases in all courts or in criminal courts not
of record may consist of less than twelve
members as may be prescribed by law.
Hereafter grand juries may consist OF
twelve men. any nine of whom may find
N indictment, but the legislature may
change, regulate or abolish the grand jury
system. Under this provision the act OF
the legislature was passed which provides
that the prosecuting attorney may file an
information in all criminal cases without
the intervention Of a grand jury, but that
the district court in its discretion may at
any time order a grand jury to be empan-
elled, and when so ordered and sun-
moned the grand jury shall consist OF
only twelve men, nine OF whom may find
an indictment.
Under the old law the grand jury con-
sisted of sixteen men. twelve of whom
had to concur in the indictment. The
defendant files his plea in abatement to
the information filed under that law, and
moves to quash the information for the
reason that under section 10, article / of
the constitution OF the Unit ID States no
state can pass any ex post facto law. He
contends that under the Wyoming consti
tuition the grand jury right is established,
and that no law can be passed of a retro
active nature to abolish the right of a de-
PENDANT to demand that before he be
placed on his trial. charged with a felony
that a presentment or Indictment of a
grand jury must first be had. The clause
of the Wyoming Declaration OF Rights is
section 10, and is as follows:
Until otherwise provided by law, no
person shall for a felony be proceeded
against crlminallY otherwise than by in
dictment, except in cases arising in the
land or naval forces or In the militia.
when in actual service in time of war or
public danger.
Aug. l, when Brantuer is charged with
having stolen the cattle, the constitution
of Wyoming protected him in the right to
a presentment or finding of an indictment
by a grand Jury and the Statutes of
Wyoming provided that the jury should
consist of sixteen men, twelve of whom
must concur in the indictment. That
constitution and law being 10 force unit
the enactment of the law providing for
filing OF information and the ~defendent
being protected in that right under the
constitution he contends that a law en-
scted subsequent to the time of com
hitting the alleged offense cannot be
brought to bear Upon his case when it
deprives him of the constitutional right
to indictment by a grand jury. and that
the law eau only be applied to o~ffenses
committed subsequent to its approval by
the governor on jan. 10, 1891.
The court took the matter under ad-
visement and will!probably render a dc
cis;on on Tuesday next
II KINGEN CASE.
In the Kingen case an application will
be made to the supreme court of the
United States for a writ of habeas corpus
on the ground hat Kingen was forcibly
abducted from the jurisdiction of Ne
braska without requisiuon or warrant of
law in violation of the l4th amendment
to the constitution of the United States,
which provides hat no person shall be
deprived OF life, liberty or property with
out due process of law. The act of
congress provides that when a fugitive
from justice shall be demanded by the
governor of the state where the crime is
alleged to have been committed of the
governor of the asylum state where the
fugitive has fed, it shall be the duty of
the said governor to order the arrest and
delivery of the fugitive to the agent or
officer of the state making the demand.
This kiDgens counsel contends is, under
the constitution. the. due process of la v
and that no person can be abducted from
one state to another agaiust his will and
proceeded against crlmInally without
violation Of the federal constitution.
The supreme court OF the United States
has never passed Upon this question
which involves the right of courts OF one
state to acquire jurisdiction over a fugitive
charged with the commission of an ~offense
within its Jurisdiction when he has been