Santa Fe daily New Mexican. [volume] (Santa Fe, N.M.) 1885-1897, 1891-02-16
The Ora md Jury System.
Continued from 1st page

! 1t is aXlomatlc. Hence the question
presents ITSELF does that powe
fall, like the mantle Q
Elijah upon the shoulders Of Elisha, from
the constitution upon the territorial leg
islature? 1t never has been used pre-
vlously, if 1t may. The congress OF tn
y. s. have never seen fit to use such
power, that am aware OF. In reason
then, can we suppose such power light
mate? We can only arrive at an answe
to this by analogical reasoning. Prof
futt in his work on jury trial at section
A, says, "ou account of the responsible
and weighty duties developing upon
grand jury, it has always been the prac
tice to exercise greater discrimination
in its selection than in the case OF the
petit jury"
Why this care? Clearly to protect the
rights and liberty of the subject.
In the case OF Swart vs.. kimball, 5 N
W. 635 Judge Cooley, of Michigan, con
demned with righteous indignation law
which allowed an information to be sworn
out in one county, and citizen to be
taken into another for trial. He ought
by right be tried in the county in which
the crime was committed, and it was an
outrage to take him away. Ii the grand
jurv is of more importance than the petit
jury, is it not an outrage to overturn Gus
TOM heavy with age and draw a jury from
counties distant far and not a part OF the
vicinage, as this law in fact and principle
does?
Case after case might be cited where il
is the constitutional right Of q
citisen to be tried by jury OF
the vlcinage, unless he take change
OF venue, and that even, at first, was de-
nied what power then has been con-
ferred upon the legislature to change the
same essential as to grand jury, when
it can not as to petit? incidentally,
though not in this case, it may be stated
that this very law does provide for petit
jury which overturns all known rules OF
law and In substance compels defendant
whether he will or not to take a change
of venue. For it seems to me plain
that while venue has reference to
territory it means territory with people.
We do not take change of venue to
unsettled countries. The law is to pro-
tect against people, not areas.
Hence there is no difference, in the
general principle between taking man
to San Juan to be tried or bringing the
people from San Juan to Santa Fe to try
him.
have only heard one serious objection
TO the line of arguments here advanced,
and that is that the grand jury is not nee
essarily of the vicinage or county, because
BY the law crimes committed upon the
nigh seas, or in places of instruction, or
. near boundary lines of counties as to
% uncertain, the jurisdiction may be
given to grand juries of counties in which
hey did not occur. But In my judgment
hese exceptions prove the rule. They all
arise ex-necessitude, from necessity.
Where there is no absolute necessity the
ule does not and can not be invoked.
Then too, it is the reverse of this case.
There the case is for necessity taken to
San Juan, here from no necessity the |
rand jury is brought to Santa Fe to try a
natter which has vicinage over which a
erritorial court has jurisdiction limited to J
be county.
When one considers how jealous the
aw is of the accused's rights, how techni-
alitles are successfully pleaded against in
how If in some jurisdictions,
he foreman of the grand jury neglects to
lace his name upon the Indictment. or if
he names of the witnesses are left of, or
be prosecuting attorney fails to sign it, or
the panel is irregularly drawn, though
very man were perfectly qualified, or if
ne man is disqualified though the twelve
tho find the indictment are qualified, that
] each case the indictments are promptly
uashed it would seem to be case of
teral exemplifcation of the scriptural
aging of straining at q gnat and swallow
~ a camel, to uphold this law after such
llings. Where there is no direct adju
ication upon the point in question yet
le uniformity of the laws requiring the
rand juries being drawn from the
ounty or district over which the
.ial court has Jurisdiction, for over 800
ears, under state, territorial and national
overnments both in this country and
,ngland makes it moral, yet legal
ertainty, that under the constitution, it
an integral part of the territorial grand
Try that it should come from the county
r vicinsge, and if it does not that 1t is an
legal body.
Ii however, there could be doubt of
re position just contended for, the ille-
ality of this law would become manifest
hen read in the light Of the positive in
ibition upon the territorial legislatures
sainst passing any local or special law
/ regard to the summoning and empanel-
ny OF juries, by the q. s. congress. See
napier SIS, first session, 49th congress,
age ITO.
| take it that summoning and empanel-
ng juries includes all the steps, and re-
uirements necessary to obtain legal
Try IN the jury box. 1t includes num-
ers and territory from whence drawn as
ell as requirements in regard to personal
1t would be absurd to say
nat if the method of drawing and per-
onal qualifications were the same in each
ounty that the requirements of this stat
tie would be satisfied, though in Santa
e county jurors drawn from Santa Fe
ity constituted good jury there, while
4 San Juan IL jurors from the whole
ounty were sufficient there, and in Taos
2 Jurors drawn from the LIST district
you'd be good jury. Nosuch absurdity
ould be supposed, and the fact that the
earned counsel for the territory refused
o consider such point, Is evidence that
could not be in the case. l only men
ion it to place it beyond doubt should
aptious criticism attempt to raise it.
Is this law, as regards the numbers up
IN the grand juries and the territory from
which drawn local and special, or gen.
,ral2
1t is we'll to consider its exact terms.
first it says section 4, Gin the sew
,ral counties Of the territory
where courts are held for the
rial of causes arising under the laws OF
he United States, that is to say, Santa
Fe, San Miguel, Bernalillo and Dona
Ana" and in the same section it again
,ays; ut being the true meaning and
mention OF this act to provide for but
,ne grand and petit Jury In the county
where causes arising under the laws OF
The United States are triable. That IS to
say, in the counties Of Santa Fe, San
Miguel, Bernalillo and Dona Ana, etc,