The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1898-07-11
NEWS FROM OVER THE STATE.
THE SAWYER INCEST CASE.
Important Ruling By Judge McCaFty
Given In Full.

Panguitch, July Sin The Herald's
court report from this place OF yester-
day it was announced that the dispo-
sition of the Sawyer incest case was
set for today This is one of several
similar cases that are pending in diff
ferent courts of the state that are just
now giving the judiciary and the bar
of the state in particular, and the read
ing public in general, very much wor-
riment these days, from the fact that
some very serious, very intricate and
difficult and very important questions
of law are involved.
1t seems also that the different
Judges of the state. are ruling differ
emily upon them. 1t Will be remem-
bered that Joseph w. Sawyer was con-
victed in this court in August. 1896, OF
the crime of incest and was sentenced
to II years The crime was commit
ted before the advent of statehood, and
was tried on an information filed by
the prosecuting attorney and before a
Jury composed of eight persons only
In the now celebrated case of the state
VS.. Lars Thompson, the supreme court
of the United States held that the con-
viction of Thompson by eight jurors
was Illegal and void, the crime having
been committed prior to statehood on
the strength of this ruling Sawyer was
released about three weeks ago on a
writ of habeas corpus issued out OF
Judge NorrelPS court, and was lmme-
diately re-arreSted upon warrant is
sued from this court by order of Judge
McCarty. In disposing of the case to-
day, Judge McCarty ruled that as
Sawyer is held on an information filed
by the county attorney for an offense
committed before statehood, he can
not be tried upon information. and
that he is entitled to have his case in
VeStigated by a grand jury, as pro-
vided by the law as it existed before
the state constitution went into effect,
citing the sixth amendment OF the con-
stitution of the United States, McCarty
vs. state, % Pac. Rep (Wash.), 299,
and the Thompson case above men
toned, wherein the United States su-
preme court said: WAS it then COM
petent for the state of Utah, upon its
admission to the Union, to do in respect
of ThompSon'S crime what the United
States could not have done while Utah
was a territory, viz: to provide Tor
his trial by jury of eight persons?
When Thompson's crime
was committed it was his constitution
al right to demand that his liberty
should not be taken from him, except
by the joint action of the court and the
unanimous verdict of a jury of II per-
sons. To hold that a, state could de-
prive him of his liberty by the concur
rent action of a court and eight jurors.
would recognize the power of the state,
not only to do what the United States
in respect of Thompson'S crime could
not at any time, have done by legis-
lation, but to take from the accused a
substantial right belonging to him
when the offense was committed
His honor then proceeded as follows:
while the supreme court of the
United States in this case does not
pass upon the exact question now be-
fore the court, yet it recognizes the
principle and involves the doctrine that
the state Of Utah cannot do with re-
spect to crimes committed during ter
ritorial form of government what the
United States would not have done by
legislation before the advent of state
hood. 1t will be readily observed by
an examination of the sixth amend
ment of the constitution of the United
States that congress would have been
powerless by legislation to have pro-
vided that crimes amounting to fell
Onies could have been prosecuted
otherwise than on a presentment or in
dictment of grand jury.
AS to whether or not the defendant
can be tried as prescribed by the laws
in force in the territory at the time
the OffenSe was committed depends
=
section 6 of article "a of the constitu-
ton of this state, which provides in
part as follows: : All of
lenses committed against the laws of
the territory of Utah before the change
from a territorial to a state govern
ment, and which shall not have been
prosecuted before such change, may be
prosecuted in the name and by the au-
thorfty of the state of Utah with like
effect as though such change had not
taken place, and all penalties incurred
shall remain the same as if this con-
stitution had not been adopted The
phrase with like effect | am of the
opinion should be construed-and think
the trainers of the constitution so in
tended intended to mean in like man.
ner, the same operation or the same
procedure, and has reference to the
means by which a result is obtained
and not to the result itself If nv
construction of the meaning of this
section is correct, then the defendant
can be indicted and tried by and I'M
der the laws that were in force at and
prior to the time the constitution of
this state went into effect The prose-
cutting attorney for this county, hav-
ing moved that the information on
which the defendant was tried and
convicted be vacated and set aside. and
the defendant held to await an investi-
cation of his case by grand jury, to
be hereafter impaneled, it is ordered
that the information be and the same
is hereby vacated and set aside. and it
is further ordered that the defendant
be held in custody to await an investi-
cation of the offense with which he
stands charged, by grand jury which
will be hereafter impaneled, and that
he be admitted to bail in the sum of
$1,000
After the transaction of this bust
ness. the trial of the case of the state
VS.. Smith was proceeded with All of
the state evidence was given in and
one witness for the defense examined
at the time of adjournment this
evening.