, 1891-03-01
SOMEWHAT AT SEA.
How are indictments to be Found
for Crimes Committed
Previous to the Passage Of the
New Law In January
A Question Which Very Closely AZ
fects the Cattle Cases.

question which will mean a great deal to
many Of the criminals now confined in
the arou county iails. The prescott
ing attorneys throughout the state are
busily engaged in preparing themselves
for the battle and the arguments will be
watched with much interest by all cor
cerned.
When Wyoming vas admitted as 4
state these provisions Of the constitution
vent into effect with it,
The night of trial by jury shall re-
main inyiolate in criminal cases, but a
Jury in civic cases In all courts, or in
criminal cases in courts not of record.
may consist of less than twelve men, as
may be prescribed by law. Hereafter q
grand jury may consist OF twele men, n
nine of whom may ind an
Indictment, but the legislature may
change, regulate or abolish the grand
Jury system.
Until otherwise provided for by law,
no person shall, for a felony, be proceeded
hRaint criminallv. 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"
mo ex post facto law, nor any law i'm
plirinR the obligation of contracts. shall
ever be made"
At the time of the admission of the
state into the union. and the consequent
taking effect of the constitution, the law
in force provided that a grand jury must
consist Of sixteen men, twelve of whom
must concur in the finding of an indict-
ment. On the 10th day OF January of
the present year a law was approved
which provided tLst a grand jury shall be
summoned only when ordered by the
court, that when 30 summoned it should
consist of twelve, nine Of whom must CON
cur in finding an indictment; and that in
other cases criminals could be prosecuted
on Information filed by the county and
prosecuting attorney.
In Laramie county, on an attempt to
prosecute James Brantner upon informa-
ton for the crime Of grand larceny. al
legged to have beer committed on Aug. |,
1890, a plea was filed, setting up that the
lew providing fer the prosecution of of
fenses by information was an ex post
facto law as to crimes committed prior to
the approval OF the act; that at the time
the crime was alleged TO have been com
mitted the defendant was entitled, I'M
der the laws then in force, to be indicted
by a grand jury consisting of sixteen mem
bers. before he could be tried for the of
feDse. Subsequently, on the point being
raised in the case of Edward Pettys for
rape, the court overruled its former deci-
sion, and held that PettYs could not be
prosecuted upon Information. The point
was then made by the attorney for the
prisoner that ms. at the time Of the COM
mission of the urine, the grand jury must
have consisted of sixteen members, an in-
dictment found by a jury consisting OF
twelve members would not be valid; that
the law changing the number of grand
jurors was ex post facto as to crimes com
mi ted before the approval of the act. and
that the prisoner should be discharged.
This plea was overruled by Judge Scott,
and PettYs remanded to Jail to await the
action OF the grand jury.
In several counties 10 the state, an at
tempt will be made to proceed by iutor
nation in crimes committed prior to the
10th of January, 1891; while 10 this
county the prisoners will be indicted un-
der the new grand jury law. 10 the state
Of Washington 4 similar case has been de-
cided. A man by the name of McCarty
was arrested on the charge of grand lar
ceny. He was proceeded against by in
formation. the allegation therein being
that the crime was committed on Oct. Is,
1891. At that time Washington was
still a territory, and the prisoner was then
entitled, under the constitution of the
United States, to a presentment by the
grand jury. On Jan 90. 1890, after the
admission OF Washington as a st ite, the
state legislature passed an act authorizing
prosecution by information. On the trial
MoCarty's attorneys raised the point that
the law authorizing prosecutions by infor'
nation was. as TO the crime in question,
ex post facto, and void; that his right to a
presentment by a grand jury was a sub
s%tautial right and could not be taken from
him by subsequent legislation; and that in
consequence the prisoner should be dis
charged. The lower court decided against
the plea; but on appeal the supreme court
Of the state, on Nov. IS, 1890, reversed
the decision of the lower court On re-
hearing, the court stated that the petition
for Q rehearing would not be allowed, but
that, in view of the importance OF the
questions raised. it would not be bound
by the opinion rendered in that case.
In California, in people VS.. TIsdale, 81
Cal l04, the court decided that when a
statute requiring an indictment is repealed
an information will not lie for An offense
committed before the repeal-a very SINH
lar case to the Wyoming cases.
As far as can be learned, these are
about the only authorities in point on the
question of the prosecution by informs-
ton. When the attempt is made to pro-
coed by indictment Of a grand jury con-
sisting Of twelve. the defence Will contend
that 4 decrease in the number of grand
Jurors necessary to find an indictment de-
pryes the defendant of a substantial
right to which he was entitled at the time
of the commission Of the crime. On the