Santa Fe daily New Mexican. [volume] (Santa Fe, N.M.) 1885-1897, 1891-02-16

The law is we'll settled that cour
should not hold an act of the legislator
unconstitutional if it has a reasonable
doubt of the legality of the measure
The duty of the court is to use ever,
reasonable intendment to sustain legisla
ton. Matter of N. 7. Elevated r, r. Co
70 n. Y, 327.
Upon this principal | act as to thi
question. If there is one single doub
possible to be predcated as to the uncon
stitutionality Of this law, that doubt mus
stand for the law.
shall consider the first proposition o
the defendant, in regard to the characte
OF grand jury, and the power over it BY
legislature first.
AS preliminary the inquiry is are tn,
constitution of the United States, the or
ganic act of the territory, and the laws o
the United States congress in regard Il
the territories, the constitutional law o
the territory? In other words, do they
stand to the territory and Its Legislature
in the same relation as state constitution
does to the state and It's Legislature?
This question must be answered in the
affirmative. 1t has been so held generally
in matter of atty gen'l . n. NJ 40 anC
cases cited and as to the 18th amendment
to the constitution in Webster Reed II
Howard, AGO.
There can be no doubt but what the 5tf
amendment of the constitution which says
mo person shall be held to answer for
capital or otherwise Infamous crime. un
less on presentment or indictment by {
grand jury is part OF the constitutions
law of this territory, and any attempt tc
do away with the grand jury IN the terri
tory would be absolutely null and void
In fact, as the territories are but por
tions of the government of the United
States itself, as distinguished from state
government, have no doubt but that il
would be futile and void in congress to at.
tempt to give them the right to make pre-
sentiments for crime by informations as is
done in some states where the grand jury
system is abolished, as long as the 9th
amendment of the constitution stands.
The territorial laws as distinguished from
the laws Of the United States in the ter
ritories have not the same relation, or
rather wantof relation as is found between
the laws OF q state and Of the nation over
the same territorial space. In tho states
it IS q matter OF distinct soyereignties. In
the territories it is the same sovereign
acting by two agents, the one the United
States congress; the other, the ter
rltorlal legislature, acting in subordi-
nation TO the greater agent.
A state may change its consti-
tuition, a territory can not. 4 state,
By its constitution, can change or abolish
a grand jury system there is no power in
a territory to make such change. A
state has its constitutional power within
itself that of territory is without itself
These general principles are necessary to
be enunclated, for many OF the cited cases
upon this question are predicated upon
state legislative action which has behind
ii far different constitutional qualifica-
ton than that of territory, and hence
which explain things which would other
wise seem to be parallel
At the time of the adoption OF the con-
stitution the grand jury at common law,
The number drawn was usually "a, though
only % were sworn and II were neces-
sary to find an indictment. 1t is said, "if
there be l3 or more OF the grand inquest
a presentment by lessthan II ought not
to be. but If there be IL asserting though
some of the rest of their number be ab-
sent, it is agood presentment. Hale P.
@. 161.
From this citation and other authorities
it is quite evident that with possibly the
exception as to the number necessary to
find the indictment, the exact number
upon the panel was not definitely fixed.
In other words the number of grand
Jury is not an absolute requirement OF q
law grand jury, This is borne
out by the fact that while states under
sanction have reduced the
of grand juries, they have not
reduced the number Of petit juries which
try common law crimes. In that is, the
number is an integral part of petit jury,
not so of grand jury. So if congress
should alter the number of grand juries,
or should allow territory to do so,
then necessarily would not be any innova-
Ion upon the common law Jury.
In the case of Reynolds vs. L. S. SO
U. s. 154, cited by the territory, the
question was as to whether the U.
). statutes, section SOS, requiring
he common law member on a grand
nry, or the territorial sta
ute requiring fifteen on such jury should
,e the jury, they decide the latter, but
his only goes as to the number; and |
an not believe that, that court intends
ts authority in this case to be used as up
holding any principle which gives the
erritorial legislature plenary power to
lraw together body of men, with any
qualification, from any jurisdiction and by
abeling 1t grand jury, have it perform
he most important duty Of that body as a
egal grand jury OF the territory.
However, if that is the intention, it will
% shown by its amenablity to rules Of
'essoning. 1t will be noticed that strict
y construe that authority only grants ter
.itoral legislatures the power to change
he number. That question does not
,ome up in this case, for this law provides
or twenty-one on the panel and twelve
@ indict, which is good common law
grand jury, if in all other particulars
agreeable to law. The contention here
. this; these defendants are being tried
'or crime against the territorial laws,
committed in the county of Santa Fe, in
4 territorial court for that county, whose
nrisdiction is only in that county upon
;he presentment of grand jury, part at
east Of whom were drawn from other
not part OF the county or dis
trict of the territorial court. Is such a
grand jury such one as the constitution
intended citizens should be indicted by,
Or should they be drawn from the county
Or district in which the crime was commit
ted, that is from the vicinage2
The history OF the evolution of the
grand jury distinctly shows that it came
forth from the same matrix as the petit