The record-union., 1897-02-09

Clerk to return all names of jurors not
chosen to the box, in order that the
whole number may be drawn from.
No matter what the law might have
been previous to 1892, it was so now.
His motion was not simply to set aside
the indictment, but to strike it from
| the files as so much waste paper. The
motion attacks the jurisdiction of the
court and can be made at any time.
In this case the defendant had been
| deprived of his right to have the jury
drawn from forty-one names, by hav-
! ing it drawn from only thirty names.
| The records showed also that Julius
| Everson was excused in June, 1896, on
account of sickness and Robert Martyr
was also excused in June, yet Everson
was not summoned in December al
| though able to serve at that time, while
Martyr was summoned and drawn. If
one was not called the other should not
| have been, and if one was called both
should have been. Choice must be made
between the horns of the dilemma. A
sick man may be temporarily excused
| but is not exempt.
The motives of the Judge may be of
the best, but he cannot go contrary to
law on that account. In this secret
| tribunal, where the defendant and his
witnesses cannot be heard, the law says
| that every point and provision of the
| law must be complied with. Unless
this be done the Grand Jury IS an lille
| gal body. the acts of which are of no
effect. He contended that the opinion
in the Southwell case was overruled by
the majority decision in the case of
Bruner against the Superior Court,
which he read from.
! There is no security to the defend
ant, said counsel, unless every step
provided for by the law be strictly ad-
hered to. If it We're not 50 the court
could have Grand Jury drawn from
nine names, or nineteen, or any other
number according to it's own ideas
The District Attorney does not dispute
the fact that the law was not strictly
complied with.
Mr.. Johnson read from decisions to
show that the court, While it had juris-
diction of a case, was limited in it's
| powers to a procedure under the pro-
visions of the law, and when it did not
do so in this case the body constituted
| by it was not a legal body. If any ex-
cuse had been offered for the dereliction
in this case in not drawing from eleven
names from which the jury should have
been done. he had not heard it. Had
| the Clerk any right to keep those names
out of the box on his desk? Certain
| names, by this mistake, have been kept
! out of the jury box because in Judge
Johnson's court a jury was secured
without drawing from them and they
| were not drawn from until the one
| juror was drawn from them to secure
the one member necessary to complete
the jury. If the Clerk can act accord
| ing to his judgment in such a matter,
he can progress until the jury can. be
drawn according to his ideas instead of
those of the court ~
The court had not the power to ex-
cuse Grimshaw on account of the diff
ference of the initials, as long as his
identity was established
ARGUMENT CLOSED.
District Attorney Ryan concluded the
argument He denied that the prose-
cution had admitted that there was anv
irregularity in the formation of the
Grand Jury. He read from the code
prescribing how the jury should be
drawn. The court found at the time
of the. second drawing that Everson
was sick, and excused him, as the
| record shows. Two jurors were to be
drawn from sixty names One was
drawn, and the law says that the
names of those not drawn may be
replaced in the box, but it does not say
| they must
The second jury was drawn from the
remaining thirty names. AS there We're
not enough the court ordered that the
| remaining names from the first draw
| ing, of those who did not serve. be
| used, instead Of ordering a second We
nire. 1t was perfectly proper and legal
After sCme further arguments the
matter was submitted to the court and
taken under advisement.