Omaha daily bee., 1909-04-13
RUSH had TOO Bic A JURY
Should Have Brought Haskell Case
Before Sixteen.
TwEETY.O ONE ON THE PANEL
Special Assistant Attorney General
Returnr from OkIahOms, where
He Acted for Government I'm
Town Lot Cases.

spcc.al Assistant United states Attorney
General Rush. who presented the case
against Governor Haskell Of Oklahoma,
has returned TO Omaha. In his Judgment
IL the basis OF auashing the Indictment be-
cause II was brought by a grand jury of
more than sixteen is correct, a great jail
delivery in Oklahoma is one Of the UNI
pleasant things to contemplate.
Referring TO the case, he said;
'Tf' the law was correct as an
nounced by Judge Marshall, all per-
sons charged with crime committed
during territorial days have been similarly
indicted by grand juries so constituted and
in cases now pending would be entitled to
the same immunity from prosecution by a
grand Jury OF more than sixteen. and hence
would necessarily result in a very large
Jail delivery in Oklahoma"
Mr.. Rush brought with him a copy of the
opinion Of Judge Marshal which knocked
out the indictments against Haskell. In
the opinion the court said:
That the misconduct charged against the
prosecuting attorneys amounted TO nothing
more than the admission Of incompetent
evidence. namely. a few affidavits before
the grand jury and the judge brushed TINS
aside b. saying that there was no showing
trai thev were preiudicial to the defendants
and that II the introduction of Incompetent
testimony % - GhAA 80 -
warrant the quashing of an Indictment
that but few indictments would be immune
from such an attack; that even conrts
themselves. differ as to what is competent
or incompetent evidence. The decisions OF
courts are unanimous that II there Is any
competent evidence, the indictment must
be sustained: that the prosecuting attor-
neys had a right to advise the jury as TO
the law OF the case and that II there was
on inadvertent error, which Is not shown
.hv the evidence. by prosecuting attorneys
cannot be magnified into misconduct.
Too Many on Grand Jury.
In his opinion the court holds, however,
that the grand jury consisted of twenty
one persons and was organized under the
laws of the United States relating to grand
jurieS and In force since Oklahoma was adj
mitted into the union as a state" said Mr..
Rush, but that since the crime charged
was wholly committed in territorial days
and within that part of the state known
as Indian Territory, by an act of congress
the criminal practice acts of Arkansas were
in force and that this offense was subject
at all times during its commission to an
Indictment by a grand jury of sixteen and
no more as prescribed by the Arkansas
laws.
The court therefore holds that when
Oklahoma was admitted into the union as
a state and the criminal procedure under
the laws of the United States put in force,
and those of Arkansas repealed; that when
the grand jury under the laws of the
United States was summoned consisting of
twenty-one persons, the government could
more easily secure an indictment by the
necessary twelve votes out of a grand jury
so constituted, than out of a grand jury of
sixteen persons required by the Arkansas
act. This. il is said. altered the situation
to the disadvantage of the defendants and
therefore the enabling act in this particular
and the procedure adopted was ex post
fscto as TO the defendants and void. and
for this the indictments were quashed."