Brannigan v. People

Decision Date22 July 1869
Citation3 Utah 488,24 P. 767
CourtUtah Supreme Court

APPEAL from the third district court. The opinion states the facts.

Judgment in case under review reversed and annulled, and remanded to the court for a new trial.

R. N Baskin, for the appellants.

Zerubbabel Snow, for the respondents.

HAWLEY J. STRICKLAND, J., concurring.



Upon inspection of the record in this case, we find it to be incomplete in many respects, and fails to present in most of its formal and in some material particulars what a record should, in order that the facts and the proceedings it assumes to present may be understood. This has arisen in part from the careless and incomplete manner in which the same was kept in the court below; and also in transcribing the same. It is true, the judge is charged with the supervision of all the proceedings of record; but the practice of leaving all the details of the entries to the clerk has been universal. The transcript is wholly the work and responsibility of the clerk below; and we regret the necessity of stating that the transcript in this case could hardly be more faulty. It is hoped that in future there will be no occasion for remarks of this nature.

It is a familiar rule of law that statutes that operate beneficially upon those whom they immediately concern, are to be construed liberally. But enactments of the opposite character--taking away rights, or working forfeitures, or creating hardships of any kind--are to be construed strictly. The law delights in the life, liberty, and happiness of its subjects, and deems statutes which deprive any one of them of these in a sense odious, and therefore all penal statutes must be construed strictly. And the degree of strictness will depend somewhat on the severity of the punishment they inflict. Such statutes are to reach no further in their meaning than their words. No person is to be made subject to them by implication; and all doubts concerning their interpretation are to preponderate in favor of the accused. Bearing these principles and rules in mind, we will proceed to the examination of the record under review in this case: See 1 Bishop's Crim. Law, sec. 223-225.

All indictments must be found and presented by a lawful grand jury. Chapter 35, section 5 of the statute provides that the marshal shall summon for a "grand jury" for the district court "twenty-four eligible men to serve as grand jurors;" and it further provides that "said twenty-four men shall constitute a grand jury."

1. The record of this case discloses the fact that there were only seventeen grand jurymen impaneled, who found the indictment and made the presentment against the plaintiffs in error.

The intention of the legislature is too clearly expressed in the statute to be misunderstood. It requires in express terms that "twenty-four eligible men shall constitute a grand jury." Can the number under this statute be less than twenty-four? It is claimed on the part of the people, that inasmuch as the common law was in force at the time of the adoption of the first amendment of the constitution of the United States, which by article 5 provides that "no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury;" and that, inasmuch as the number constituting a grand jury at that time by the common law was fixed to be a number not less than twelve nor more than twenty-three, thereby the lawful number became the common-law number by constitutional provision, and must so remain though legislation otherwise provides. If this were so, then the common-law number could not be changed by statute of congress or that of a state. If such is the fact, then all our legislatures, from that of the national government to the territorial, as well as all our judges, have misconceived this constitutional provision, and have disregarded it; for the common law has been otherwise in various ways invaded than in the matter of the grand jury.

It is unquestionably true, that in the absence of a statute providing for a different number, the common law would control the number. It must, however, be remembered that the constitution of the United States does not adopt the common law as a part of itself. If it did, the number of a grand jury would be thereby prescribed by that of the common law. The common law at the time of the adoption of the constitution must be regarded as in place of a statute under the constitution. Congress and the several states, and also the territories under congress, have the right to provide by statute a different number. If a different rule prevailed, it would put at end all legislation, and we should in almost every particular be under the common law, instead of the vast statutory provisions that now encumber our national and state legislative records. In Louisiana the number of the grand jury must not exceed sixteen; in California it must not be less than seventeen; in Arkansas it must not be less than sixteen; in Iowa it is fixed at ten: See 1 Bishop's Crim. Proc., sec. 725, and notes. That congress and the state have the right to supersede the common-law rule, and provide a new rule by which a greater if not a less number than that of the common law may be provided, there can not be a question.

By the organic act of the territory of Utah, section 6, the legislature of the territory has jurisdiction of "all rightful subjects of legislation consistent with the constitution of the United States and the provisions of the organic act. * * * And the laws passed by the legislative assembly and governor shall be submitted to the congress of the United States, and if disapproved shall be null and of no effect." The statute fixing the number of a grand jury at twenty-four was approved January 21, 1859, and was never disapproved by congress; and by the operation of law and of the organic act of this territory, it became a law. If the statute fixed the number less than twelve, instead of less than twenty-three, there would exist a stronger reason for questioning its validity, for thereby individual liberty and life would be placed in greater peril than by the common law; but in fixing the number at twenty-four, individual liberty and life are more strongly guarded, and thereby the intent and spirit of the constitutional safeguard are respected and upheld, instead of being weakened.

But it is said that while it is the duty of the marshal to summon twenty-four grand jurors, not more than twenty-three can be impaneled, as otherwise a complete jury of twelve might dissent, and therefore the finding would be void. To support this position, 1 Wharton's Crim. Law, sec. 465, and the notes thereto, is cited. On examination of these authorities, we find that they all rest upon the statute of their several states; and while they would be controlling there, yet they would not be in a state or territory where a different statute was provided. Section 11 of chapter 35 of the statutes of this territory provides that "when the grand jury or any twelve of them have, upon to them good and sufficient evidence, found a bill of indictment, indorse thereon the words, to wit, 'A true bill,' and their foreman officially signs his name to said indorsement, and also note or cause to be noted on the bill of indictment the name or names of the witnesses upon whose evidence it was found," is a lawful indictment. This provision effectually disposes of the difficulty named in the objection last stated. We must, therefore, hold, in the language of the statute, that a legal grand jury in this territory to be "twenty-four eligible men, and that said twentyfour men shall constitute a grand jury;" and that said "grand jury, or any twelve of them," may find and present an indictment under the laws of this territory against those who may violate the same.

It also appears from the record in the bill of exceptions and the transcript of proceedings that six of the said grand jury that found the said indictment were taken from the by-standers as talesmen, and were not summoned by writ of venire as required even by the common law, and in direct and open violation of the statute of this territory. Chapter 35, sections 8, 9, prescribes a specific mode of selecting by writ of venire, both the grand and petit jurors; and also prescribes a specific mode of return to be made of said writ to the court, to wit: "Said officer shall return said list or lists and writ to said district court at the time specified, and shall specify the persons summoned and the manner in which such were summoned." It does not appear from the record, by the return of the marshal to said grand jury writ, that any of the said provisions of the statute were complied with; nor does it appear from his return that he had lawfully selected and summoned the said grand jurors who found and presented the said indictment. But it does appear from the record that one and all of these provisions were wholly omitted and disregarded. It may be said that it is too late after verdict to look into the record. This is true as to matters of mere form of regularity; but not so when it appears upon the face of the record, as in this case, that the indictment by which the prisoners were charged and tried for their lives was found by an unlawful grand jury.

2. It is further claimed and assigned by the plaintiffs in error that the indictment charges murder only in the second degree, and that the verdict is, guilty of murder in the first degree.

The statute, on page 51, chapter 22, provides as follows:

"Sec. 4. Whoever kills any human being with malice aforethought, either expressed or implied, is guilty of murder.

"Sec 5. All murder which is perpetrated...

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8 cases
  • Johnson v. State
    • United States
    • Wyoming Supreme Court
    • November 4, 1899
    ...28 Or. 147.). The evidence offered to show kind acts toward deceased on the part of defendant was admissible to rebut malice. (Brannigan v. People, 3 Utah 488.) It error to permit the prosecution to cross-examine defendant respecting matters not alluded to in chief, and to call out thereby ......
  • State v. Inlow
    • United States
    • Utah Supreme Court
    • April 24, 1914 some cases." In support of this statement, State v. Dye, 44 Utah 190, 138 P. 1193, recently decided by this court, Brannigan v. People, 3 Utah 488, 24 P. 767, by the territorial Supreme Court, and 21 Cyc. 1071, are cited. Counsel have manifestly misapprehended the effect of the decisions......
  • State v. Ray
    • United States
    • Utah Court of Appeals
    • May 4, 2017
    ...have based its decision on improper grounds, "the general effect of [this] uncertain verdict is fatal to it." See Brannigan v. People , 3 Utah 488, 24 P. 767, 771 (1869). "No verdict so defective ... in substance can be corrected or changed by presumptions against [Ray]." See id. The sum to......
  • State v. Taylor.
    • United States
    • West Virginia Supreme Court
    • February 21, 1905
    ...however, holds that it is in the discretion of the trial court to allow a plea in abatement after the plea in bar. The case of Brannig v. People, 3 Utah 488, asserts the contrary of the position taken by me, holdthat, after demurrer entered and withdrawn, a plea in abatement should be admit......
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