Indian chieftain. [volume] (Vinita, Indian Territory [Okla.]) 1882-1902, 1893-01-19
JUDGE WARDS POSITION.

JUDGE WARDS POSITION.
DELAWARE DIST, Jan s. 1885
EDITOR CHIEFTAIN:-Since read
ing your last issue of The CHIEF
TAIN l find that Judge Starr, OF
Cooweescoowee, and Judge Wick
lift have held different to the ac-
ton had in the Delaware court,
January 2, 1898. In justice to my
self | will explain: First, The
treaty of 1866, Sec. II, Art 81,
says, "No law shall be passed that
will conflict with the constitution
ofthe United States or any exist
ing law of congress-" The Cher
okee constitution says, "no man
shall be deprived of life, liberty
or property without due process Of
law" Due process of law, then,
must mean the legality of any
case. The fact Of our grand jury
heretofore being composed of only
five men, and the definition given
by Blacks dictionary on law (and
Bouvier's also) of the term grand
jury" to mean body of not less
than twelve Lor over twenty-four
men, together with the late action
of council in repeating the old law
and creating a new jury of thirteen
men, shows conclusively that we
now have a legal grand jury. It
also shows that the old jury was
not a grand jury as defined by the
authorities and held by the con-
stitution of the United States.
Further, Judge Parker said to
Chief Harris before the last July
term of court. that "you cannot
try man unless he has been in
dicted by II grand jury" clearly
showing we had no legal grand
jury. Upon the strength of that
remark Chief Harris directed by
letter all the judges IN the nation
to continue the cases then pending
until the January and May term
of court, respectively, claiming it
worse than useless to try any case
until the jury system was amend
ed aud made to conform to the
Constitution of the United States.
The result is a new jury law, now
legal, heretofore not legal. again,
how could any court take up aud
try case under a repealed law?
Ii five men were not legal grand
jury then, what would be their
tindings2 If their findings could
not be considered, what must be
thought of a court OF justice trying
man upon an indictment that
was no Indictment If we take
Goodson VS.. State of Florida, 1C
So. 1888, we find "the only manner
in which the findings Of a grand
jury can be presented is in open
court, and if such presentment is
not afiirmatively shown by a rec,
ord entry in the minutes OF the
court, or by the file endorsement
on the indictment itself, by the
clerk Of the court, showing that il
was presented by the grand jury
and filed in open court" A plea
in abatement because of such omis-
sion should be sustained. Under
our present statute the grand jury
can remain in session after the adj
journment of court five days. This
should also be amended by our
legislators; the federal courts also
require that all indictments found
shall be returned in open court.
THIS is what | believe to be the
correct meaning of the laws and
hence the action sustaining the
motion of solicitor to enter nOlle
prosequi in all the cases pending,
as they were misdemeanors except
few petit larceny cases and
nothing impaired in legitimate
cause, for with sufficient testimony
every case in which nolle
prosequi is entered may be re-
vived legally. Blu. for the above
and foregoing reason am con
demned by one A. v. Edmondson,
who | understand is on his way TO
Tahlequah to cause my suspension
Should such be the case, l would
advise, first, that he have the So
licitor OF the district suspended
for presenting the motion; Sec
ondly, that he have the principal
chief suspended for recommending
such law in his message; lastly
that he have all the members oI
the senate and council suspended
for passing such law, and repeal
ing the old one. l could say much
more, but hope this sufficient foI
all reasonable men.
Very respectfully.