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

jury it branched off from it. Or yathe
the original body had two functions which
In process OF time developed into tN,
distinct bodies, known as the grand anC
petit juries.
Brofutt on jury trial sec. 26.
| While the exact time may not bt
[ known when this division of func
tons became certainty, It is clear tha
in the reign of Edward III, 1927, it was
an established fact. OF course up to tha'
time 1t was drawn, as was the petit jury
they being one and the same, from the
body OF the county, or the vicinage This
was absolutely necessary from The origna
character OF the body, that OF being in
part witnesses Of the facts, as we'll a.
triers OF them. The question now pre-,
sents itself, has the character of the place
from which they have been drawn, eye,
been changed, that is, the principle OF
drawing from the vicinage? If it has not,
but tor 400 years in England up to th,
time OF the adoption of the constitution Of
the U. S. the principle OF drawing iron
the county or vicinage has been held as
an unQuestioned right it can be reasonably
inferred that the people have considered il
as an essential element of common law
Jury. And If in the changes in habits,
customs and thoughts in the different
character OF our necessities, in the ev0lu,
ton OF Our legal system for the hundred
or more years since the adoption of the
constitution in all the states, there has
been no innovation of that principle, IT
would seem that it was q pronounced ele-
ment in legal grand jury, nag more.
almost the substance of that body. If
there has been any innovation upon this
principle recognized by any court of law
the territory has failed to show it and ]
have after diligent search failed to find
any. There has been one instance-in
Mo.-Where at one time the constitution
gave the legislature authority to make
such "A change, but after ten years, in
1875, new constitution was adopted
wherein this power was taken away, and
when the legislature attempted to give
the right to grand jury Of one county to
find an indictment against person in
another-not Of the vicinage.-the su.
preme court promptly declared the Law
void. Ex Parte State 73 Mo. 102.
The argument in this instance is simply
to the effect, that the people of that 90.
veregnty must have considered the limo.
vation dangerous one and threatening to
the liberty OF the citizens if after ten
years they struck it from their constitu-
ton and took their position upon the
common law grand jury OF the county or
vlcinage.
Now, what are the cases cited nv the
territory to Justify the legislature tf this
territory in making change in the Jury
system which has no parallel in principal
in any state or country having the common
law jury system for over 800 years, 1cept
the case in Missouri which wa, done by a
constitutional enactment and with
almost pricipitate alacrity? With the *
ception OF the case in the SO U. s. hereto
fore considered, only two others have
been handed me viz:
Brannigan vs.. People, 3 Utah 4SS.
Parker vs.. People, Lawyers Report
S03 Colorado.
The first case was decided in 1863. The
record showed that in that case seven
teen grand jurors found the Indictment,
while the territorial statute requires TWEEN
ty-four eligible men. The people claimed
that it was by common law grand jury,
and that twenty-four was not such Jury,
hence the statute was void. The court
denied this, and held that the territory
like state have the right to supercede
the common law rule, and provide new
rule by which greater if not less mum.
Der than that of the compiled laws may
be provided
This, If good law, only stated that as to
the number il could be changed, it laws
down no general principle giving the leg
islature the right to practically wipe out
the compiled law grand jury. This au-
thority is weakened IS to this point even
by two errors First, reasoning from state
power to territorial power, this can not
safely be done, specially as in all known
cases changes in the grand jury have been
under interpretations OF special constitu.
tional sanction. Second, the court de-
cided that as territorial laws had to be SUBJ
mitted to congress for approval or disap-
proval, and this law has been with others
and not disapproved, therefore it was
valid. This-holding has been distinctly
repudiated
In the Colorado case, the defendant
took the ground that to indict him by
grand jury of less number than the G. l..
grand jury was not educ process of law"
as used in the 18th amendment to the
constitution. This was held not so we'll
taken, upon the authority Of ITO U. S.
SIG, which states that the state Of Cali
fornia under its constitution can prose
cute felonies by nformations.
These cases represent the terrtorys side
of this issue. | ask is there anywhere,
even by implication, decision that any
legislature under the immediate control Of
the constitution and the laws Of congress,
can set aside the requirements Of the
common law grand jury as to being drawn
from the county or district? Incidental
ly, wish to remark, that county and dis
trcts are synonymous terms as to the
principle involved. We are dealing en-
tirely with territorial courts, and each
court has definite jurisdiction for the
U. S. and for the county. In the case OF
Olive vs. the state Z, N. w. A Nebraska.
the court in discussing the question of
district and grand jury for it, says "In
other words, the trial district and the
Jury district must be the same."
There are no cases that | have been
able to ascertain upon the immediate
qleStlOH at lssueJ eACept tue Mlssouli
case above, for the probable good reason,
that no such law as the one under consid-
Grafton can be found upon the statute
books,
The danger in this law is the principle
involved in it. If the legislature has the
constitutional right to take one grand
Juror from San Juan county to find indict-
ments against citizens of Santa Fe county
as grand juror in court limited to the