The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1898-07-10

Utah'S eight-juror system is unique,
in that this is the only state having
a. jury different to the one known to
the common law. 1t is also an inter
esting fact that there are few if any
precedents directly in point tending TO
fortify either side of the contention
that a person who committed crime,
less than a capital offenSe, prior to the
admission of Utah by statehood, could
now be legally tried only by a jury of
II, which number constituted a valid
trial jury in territorial days, when the
crime in question was committed. 1t is
contended by many attorneys who rep
resent persons charged with crime al
legged to have been committed prior to
statehood, that there is now no law
authorizing their trial, not even the eX-
post facto statute, which. as they
claim, places the accused in a worse
position than when the Offense was al
legged to have been committed.
ATTORNEY GENERALS OPINION.
While awaiting ruling on another
I phase of this important question by
the highest court in the land, the state
attorney generals office has advised
the several county attorneys having
cases of this kind pending in their re-
! Spect1ve counties, to proceed to try
them by a jury of II. This advice is
not by any means due to a sentiment
| of public policy, which rebels at the
thought that such criminals should go
scot FIRE ebecauSe there is no law I'M
der which they can be tried. Rather,
! it is the result of a patient research
! by Deputy Attorney General Lee of
| the authorities in the state law library.
| Attorney Lee has contributed an in
I teresting brief on the question to the
states legal literature, and in response
! to requests, has furnished each county
/ prosecuting attorney a copy on the
subject that will become an eventful
chapter in the country's history of jul
| risprudence.
A PRELIMINARY STATEMENT.
| In reporting the result of his inves-
| tigation and examination of the law
bearing upon the subject, Deputy At
! torney General Lee draws attention to
the old territorial law which provided
for trial of offenses by a jury of II,
and also to the state constitution,
which provides for a jury of eight,
except in capital cases. Continuing,
the brief states that a number of de-
PENDANTS who We're alleged to have
committed crimes prior to the date the
state constitution took effect, were
tried by jury of eight after statehood
and convicted. The state supreme
court, in the case of the state of Utah |
VS.. Bates and in the case of the state !
of Utah VS.. Thompson, held that a
conviction by a jury of eight was
valid. The supreme court of the |
United States, in the case of Thomp- |
son, held that the conviction was il !
legal and unconstitutional, and set |
the same aside with directions to pro-
coed in a manner not inconsistent with |
that opinion. |
subsequently all persons who had |
been convicted under like circumstan-
ces were released upon habeas corpus
were re-arrested and are now awaiting
trial The question arises, Can these
persons be tried under the law as it
now stands, providing for a jury of
only eight, when the supreme court of
the United States has declared these
persons were entitled to a jury trial
by Il jurors?
CONSTITUTING THE LAW.
The law providing for a trial by
jury of eight has been held to be ex
post facto as to all those defendants
who are alleged to have committed OF
lenses prior to statehood. 4 convic-
ton by a jury of eight being a nullity.
no question of jeopardy arises, as a
number of decisions show.
In general terms the enabling act
and the state constitution provide for
the transfer of all actions, cases and
proceedings pending in the territorial
courts to the state courts established
by the constitution, and that no such
action, case or proceeding shall abate
by reason of the change, but shall be
prosecuted to judgment in the state
court having jurisdiction. This Ian
guaSe, believes the deputy attorney
general, is as broad as general Ian
guage could be made, and conveys the
evident intention that this class of of
lenses could be punished. Doubtless no
difficulty would have been found had
not the eight-juror system been adop-
ted.
AUTHORITY FOR TRIAL BY u. T
According to the deputy attorney
generals views. this is an implied au-
thority, in view Of the United States
supreme court decision in the case of +
Thompson, to empanel a jury of Il to
try such pending cases, and as to chal- :
lenge he believes the safer course
would be to give defendants the benefit ]
of the doubt on this point. The brief q
then reciteS numerous decisions by way
of general observation, showing the .
power of courts of general jurisdiction :
to empanel juries in an irregular man
ner, as, for example, from open venires
to meet eXigencieS as they arise. De- 6
cisions are also quoted to show that 1
the common law method of meeting an I
exigency like this is allowable.
AN APT QUESTION FROM COOLEY. :
Quoting from Justice Cooley on con- a
stitutional limitations, the brief states: v
But so far as mere modes of proceed I
lre are concerned, a party has no more Il
right in a criminal action than in a =
civil action to insist that his case shall =
De disposed of under the law in force
when the act to be investigated is f
charged to have taken place. Remedies
must always be under the control of
he legislature. and it would create d
endless confusion in legal proceedings
f every case was to be conducted only >,
n accordance with the rules of prac- =
ice and heard only by courts in exist
,nce when its facts arose. The legiS- ii
ature may abolish courts and create n
lew ones, and if may prescribe alto =
,ether different modes of procedure in
is discretion, though it cannot law L
ully, we think, in so doing dispense
With any of those projections with W
which the existing law surrounds the =
,erson accused of crime"
THE ATTORNEY GENERALS CON- q
ILLUSIONS.
Recapitulating, Deputy Attorney 9,
General Lee draws the following con- W
lusions:
l. That, under the authority of the -
United States supreme court decision
n the case of Thompson, quoted above
IL defendants who are charged with -
he commission of crime prior to state
God are entitled to a trial by a jury ".
f II men, as at the common law p
2 That the enabling act and the state
institution clothes the state district
oI1rfS with jurisdiction and authority | "a