The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1898-06-24

To the Editor of The Herald:
The discharge Of Lars Thompson by the
district court of Emery county, for the
alleged reason that there was no law by
which he could be tried. presents a serious
question:
Thompson was charged by indictment
with a felony alleged to have been COM
mitted before the admission of the state,
and. after the admission, was tried by
jury of eight, as provided by the state
law.
The supreme court of the United States
in Thompsons case held that the constitu-
ton required a trial by a jury OF twelve,
and therefore the state of Utah had not
the power 10 rotid FOR a IT al of ofIenseS
committed before its admission by a jury
of a less number, and that as to all such
offenseS, its legislation was Elk POST
FACTO and void. But the court did not
determine that offenders against the ter
ritorial law could not be tried by the
state with juries of twelve. The language
of the court. speaking through Mr.. Justice
Harlan. is:
In our opinion, the provision in the
constitution of Utah providing for the
trial in courts of general jurisdiction OF
criminal cases, not capital. by jury COM
posed of eight persons, is eX post facto IN
its APPLICATION to felonies committed
before the territory became a state, be-,
cause in respect of such crimes. the con-
stitution of the United States gave the
accused. at the time of the commission OF
his offense, the right to be tried by
jury of twelve persons, and made 1t i'm
possible to deprive him of his liberty EX-
CEPT by the unanimous verdict of such
a jury. The judgment is reversed, and
the cause is remanded for further pro-
ceeding not INCONSISTENT WITH THIS
OPINION" Crhe capitals are mlne).
+ffa,, har Ba,. no cf1fl
proceed tc try Thompson with a jury of
twelve was not involved Indeed, whether
the constitution and legislation of Utah
provide for such trial is purely queS-
ton of state law. Including no federal
question. The enabling act empowered
the convention to provide for the transfer
of actions, cases, proceedings and mat
ters pending in the supreme and district
courts of the territory of Utah at the
time of the admission of the said state in
to the Union, TO such courts as should be
established under the constitution
: and no INDICTMENT. action.
or proceeding shall abate by reason of
any change In the courts, but shall be
proceeded with in the state or United
States courts according to the laws there
OF, respectively
The constitution declares that:
All criminal prosecutions and penal ac-
lions which may nave arisen. or which
may arise before the change from a terri
torial to a state government, and which
shall then be pending. shall be prosecuted
to judgment and execution in the name of
the state. and in the court having jurisdlc-
tion thereof. All 0ffenses committed
against the laws of the territory of Utah
before the change from a territorial to d
state government. and which shall not
have been prosecuted before such change,
may be prosecuted in the name and by
the authority 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 constitu-
ton had not been adopted
II also declares that all cases. including
indictments. shall be transferred to the
proper state court. 1t further provides
that:
..All laws of the territory of Utah now
in force. not repugnant to this constitu-
ton, shall remain in force until they eX-
pire by their own limitation, or are al
tered or repealed by the legisla ture." and
that in courts of general jurisdiction. ex-
cept in capital cases, jury shall consist
of eight jurors"
The contention now is, if | understand
1t, that there is no provision of law for
Jury OF y in cases not capital, and there |
fore no person charged with crimes rot
capital which were committed before the
admission of the state can now be tried. |
A result so disastrous to the adminiStra- !
ton of public justice should not be per-
mitted unless il Is imperatiVel required |
It seems to me that the argument against |
Judge Johnson's conclusion is very strong. |
1t cannot be elaborated in communica- |
ion of this kind; but may be outlined as |
The clear intention of congress as ex-
pressed in the enabling act, and of the |
people of Utah as indicated in the con- |
was to provide for the trial Of |
al offenders against public law, whether |
heir offenses were committed before or |
after the admission of the state. The !
language of the act and constitution |
quoted and referred 10 is persuasive of |
he clear intent that there should be no |
Freak in the administration of justice, and !
[ appears to be aptly chosen to express |
such intent The provisions for a trial !
# offenders by jury. have been adjudged |
" the federal supreme court, to be ex
cost facto in their APPLICATION to |
blenders against territorial laws. and as |
o such offenders void. Therefore, the |
provisions of the pre-eXisting law relative
o jury trials are not repealed by the
PERSONS charged with crimes committed |
before admission. AS to them the prior
aw is in full force, and may be executed.
The decision of the court simply declares
hat the constitution, as to this particular
natter, is prospective, and is to have APP
,lieation only to cases arising after its
adoption. There is nothing on the face
f the instrument to indicate an intention
o make it's requirements as to jury trial
in their application and an
Elementary and general rule requires a
My. The constitution of the United
tates imperatively requires this con-
Consequently the law of the
erritory of Utah providing for a trial by /
Jury of u for territorial offenders. has
ot' been repealed AS TO THEM and such
rial may now be had.
Another view may be taken also. Admit
hat the territorial jury law cannot be
evived or made available. and that the
resent statute law does not apply TO the
Id cases. it does not follow that trials
annOt be had. The courts are here, the
ldictments have been found and juries
re in attendance. The only mission is
4 falling to provide the number who shall
it IL criminal cases. The common law
f England is in force in this state. Why
lay not the court resort to it and impanel
iries of u?
But / have said enough to at least
mphasze the Importance of the question
Whatever view may finally prevail, GER
ain it is, that a question so important to
ne peace and welfare of the state should
OF be disposed of upon consent applica-
ons in the nisi prius courts.
There are a large number of cases, in
uding one or more of felonious homicide, |
! the same condition with the Thompson
ase.
1t would seem that the public interest
emands a submission of the question to
re supreme court before turning the Of
{. S. VARIAN. u