The Guthrie daily leader. [volume] (Guthrie, Okla.) 1893-1996, 1909-09-16

Amendments % the Constitution 9. .-s
United States providing tAal.
~ person shall be heia e answer
Tar cauitM OF otaer& - tlialh2
crime. unless Oh pfeaehlAeAa = =
dletment oi a grand jury
Guarantees To a defendant elaiss4
aim the commission Of felony u
Oklahoma Territory prior % stare
hood an unalte-able right 70 ne az
cnse1 81 inlictmen, through the inter
yentiop OF grand iHfy found Alla
me concurrence Of at least t"effe =
The Act of Criminal Procedure q
,se Territory OF oklahoma provided
that; s...,a
vtthoni the concurrence oi aJ iea7l
twelve grand jurors.
HELD that this provision appAes y
an nffenses committed 10 Oklahoma
Territory prior to Statehood ana az
Investigation and finding by lesa
number than twelve grand jurors -
81. an Indictment. but an accusation
msas ~ an unauthorized boly oi men.
ana i- therefore a nuliity
Where defendant files q molloa
~ set aside an Indictment On ths
grounds that Il is not iound oF iesA'
grand jury. and that no witnesses 4p
9esrea before and 10 evidence ot any
tira Was presented % the grand laTy.
whieh returned the indictment ahu
80 ~ court had no jurisdiction o'
tba defendant. and makes appliealioI
to the ,rla. court 10 set dag Tor the
taRiug 81 testimony Ia support oi sal.
motion as prescribed By Section 'o9'
Wilson's Stats.
Held. That IL is reversible eIFo
f,r the court 70 refuse such appiica
,gon and to summarlly oyerruie sai'
motion.
m error from the District Court Q
oklahoma county Hon. Joseph y
Lowe. Judge Reversed. Flled Sel
tember tn. 1909.
Statement Of the Case. victor
HAYES. plaintiff in error (hereinaite
Apefanated defendant was indiete
for tbe crime OF assault with intent I
KIN one 4. NJ. Jones. alleged 70 nav
been committed on the oth day
November 1907 III
on the 10th day Of December, i90
the grand jury returned an indictmei
charging defendant with the crime
aasanlt with intent to kill On Il
18Th aay Of December. 1907 anoth
indictment was returned against q
fenaant for the same oitense.
On the 7th day OF January l9oS, y
cnnrt charged the grand jury as 4
lows. Gentlemen Of the grand lur
At the time you were empaneled as
grand Jury OF this court the court
its charge to you instructed yon IN
any nine of YOU concurflng in a
given ease migat return an indletme
Since then question has arisen as
whether that part Of the charge 70 I
grand jury vas correct as apphea
crimes or offenses committed PRIOR
the admission Of Oklahoma into
rnlap as a state ......, You are .
instructed that as applied 20 an crIn
WhIrh were committed prior to
18th dav Of November, 1901 prior
the admission Of Oklahoma into
Union as a state, taat 1t will fequ
the unanimous concurrence q
twelve gentlemen 20 return an ND
ment against any person charged y
crime and investigated before you.
A. several Of the indictments 81
were returned by y0u were retuf
into open court while only eleven
Won we're present. one Of you being
cent because of sickness # Is belle
ina, You would best discharge
duties as grand jurors By again
sldp.ing ali these cases where
crimes charged against the parties
alleged TO have been committed ]
~ the 18th day Of November
and II you unanimously concur
finding an Indictment Ia aHg ol +
cases that as TO sucl sou may e
new indictment into court
on the same day there vas retu
IN open court another indieii
AGAINST defendant tor the same
fense
ON the 2lst day Of January
the defendant moved the court I
aside this indictment
Which motion TO set aside
follows
Comes now the defendant Vi
Hayes and moves the court e
aside and hold for naught the
ment against her In the above eh
cause. and for grounds thefee
leges and says
Taat the alleged grand jury
found said Indictment was not q
empaueled. summoned and CON
as provided by law and was
legal grand iury. in this to-~it
First. That prior TO the l6i
Of November. A. u 1907, =. F Bl
Indge Of the District Court 81 q
rlfory of Oklahoma, under and
tue or authority vested in him
Of Congress for the purpose tor
ing and empanelng grand an'
jurors for said Territorial Cor
dered and directed William
Frank Merrell and Ell 5 Naugl
commissioners appointed by hi
said Il. +. BurweH, to select
hundred and names an
the same in the jury box as p
nv said act OF congress for lu
noses and Ia obedience e sai
the said commissioners select
names and placed them IN 81
box as provided by law that sll