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

The defendants in these cases, were in
dicted for murder on the ---- day oi
August 1890 by grand jury empanellcd
IN the county Of Santa Fe, N, d., in &C.
cordance with the requirements Of chap.
ter 96, section of the laws of the 18th
assembly of the territory. By the terms
OF that law as found in sections and 5
it s provided that in the several counties
of this territory where courts are held for
the trial of causes arising under the laws
of the United States, that Is to say, ir the
counties of Santa Fe, San Miguel, Ber-
nalillo and Dona Ana "the mum Der OF
grand jurors shall be 81, and 12 of whom
may find an Indictment" while in the
other counties of the territory, excepting
the counties of Santa Fe, San Miguel,
Bernalillo and Dona Ana" the number
of grand jurors shall be II, land 9 of
whom Az find an Indictment. Further,
by the provisions of said law the grand
jurors which serve in the territorial courts
and find indictments for infractiohs Of
the laws OF the territory in the four coun-
ties OF Santa Fe, San Miguel, Bernalillo
oha Cohd xAAh, dlO bI1N IL hOp ilOLu Lnt
bodies of those respective counties, but
from the whole district, composed of two
or more counties, over which the district
court has jurisdiction for the trial of in.
fractions OF the United States laws while
in all other counties of the territory the
grand jury is drawn from the body OF the
respective counties. In fact, by the ex-
press terms of section 4, the same grand
jury in the lour counties above specifical-
ly mentioned act in dual capacity as a
territorial grand jury for the district
courts OF the respective counties, and as
a U. s. grand jury for the respective dis.
tricts Of the territory. To these indict-
ments so found the defendants interpose
pleas alleging in substance the ilegality
of the grand jury 80 summoned and en-
panelled. The territory files replications
to the pleas, alleging the legality of said
grand jury. This replication is in the ma
ture Of demurrer.
The positions taken by the defendants
are two. First: That the constitution of
the U. g., the organic act of this territory
and the laws of congress in regard to ter
ritories are the constitution of the terri
tory that by the constitution, amendment
V, which says that mo person shall be
held to answer for capital or otherwise
Infamous crime, unless on q presentment
or indictment of grand jury" it is meant
q common law grand jury which contem-
plates body OF men legally drawn from
the county or vicinage wherein the crime
was committed; in other words such a
grand jury as was known to the law when
the constitution was adopted.
Second: That by the law of July 80,
1885, passed by the U. s. congress there
was specific prohibition upon the terri.
torisl legislature against passing local or
special laws for summoning or empannel-
ing iuries; and that the law under which
the grand jury was drawn which found
the indictments under consideration was
such local or special law.
Upon the other hand the territory con-
tends that the constitutional requirements
are met, if there is an impartial grand
jury legally drawn; and that it is dis
cretionary with the legislature as to the
number of persons upon the same or the
area of territory from which the persons
are drawn. And second, that the law in
question has made proper classification
of counties and the terms are general as
to the classes. And hence under we'll
known adjudications the law is general
and not local or special.
That the question here raised as to the |
legality of the territorial jury system in
this territory is momentous and of great |
Importance is evident. Upon the one |
hand is to be considered the possibility |
that citizens are being indicted, tried and |
possibly be found guilty by juries which
may be wholly illegal rights being leopard T,
zed by an institution which has only the
semblance of constitutional authority
and those privileges which are of such |
inestimable value that courts and legs- |
latures for centuries have struggled with
Jealous care, by refnements which at
times would seem to partake of senti-
mental measure, to protect from in
siduous overthrow, may be each day
threatened by the appearance of legal
institution, which in fact may be without
The sanction of law.
Upon the other hand to set the law In
question aside as illegal may allow Of the
escape Of some criminals who ought to
be punished, will render nugatory and
useless much work that has been done,
and allow of the useless expenditure Of
money.
That it is a grave issue, and one OF
which a Judge should meet with great
deliberation and move IN under the i'm
mediate conscientousness OF the sanctity
of his oath and the duty which he owes to
the people and the law, I am indeed con-
scious Of, but as the question is present.
ed, | do not hesitate to meet it fairly;
conscious that my decision is given under
the direction of the best lights which l
have, and in the undoubted belief that it
Ia correct.