Clawson v. United States

• Decision Date: 20 April 1885
• Citation: 114 U.S. 477,29 L.Ed. 179,5 S.Ct. 949
• Parties: CLAWSON v. UNITED STATES. 1
• Court: U.S. Supreme Court

114 U.S. 477

5 S.Ct. 949

29 L.Ed. 179

CLAWSON v. UNITED STATES.¹

April 20, 1885.

F. S. Richards and Wayne MacVeagh, for plaintiff in error.

Sol. Gen. Phillips, for defendant in error.

BLATCHFORD, J.

At April term, 1884, of the Third judicial district court of Utah territory, Rudger Clawson was indicted, under two counts, in the same indictment, one for polygamy, and the other for cohabiting with more than one woman. The first count was founded on section 5352 of the Revised Statutes of the United States, as amended by section 1 of the act of congress of March 22, 1882, (22 St. 30;) and the second on section 3 of that act. By section 4, counts for those offenses may be joined in the same indictment. The defendant was tried in October, 1884, and found guilty on both counts, as charged; and sentenced, on the first count, to pay a fine of $500, and to be imprisoned three years and six months; and, on the second count, to pay a further fine of $300, and to be imprisoned the further term of six months; and, further, to be confined till the fines be paid. From this judgment he appealed to the supreme court of the territory, which affirmed the judgment and sentence, and he has brought the case to this court by a writ of error.

The indictment was presented and filed in court, April 24, 1884. On the thirtieth of April, 1884, before plea, the defendant moved to set aside the indictment, on the ground that the grand jury was not legally constituted, in that qualified grand jurors, drawn and summoned, were illegally excluded from the grand jury, on the challenge of the prosecuting attorney. The motion was heard on an agreed statement of facts, which is set out in the bill of exceptions, and was overruled, and the defendant excepted to the decision. The first error here assigned is that that motion was improperly overruled.

By section 4 of the act of congress of June 23, 1874, (18 St. 254.) entitled 'An act in relation to courts and judicial officers in the territory of Utah,' it is provided as follows: 'That within sixty days after the passage of this act, and in the month of January annually thereafter, the clerk of the district court in each judicial district, and the judge of probate of the county in which the district court is next to be held, shall prepare a jury-list from which grand and petit jurors shall be drawn, to serve in the district courts of such district, until a new list shall be made as herein provided. Said clerk and probate judge shall alternately select the name of a male citizen of the United States who has resided in the district for the period of six months next preceding, and who can read and write in the English language; and, as selected, the name and residence of each shall be entered upon the list, until the same shall contain two hundred names, when the same shall be duly certified by such clerk and probate judge; and the same shall be filed in the office of the clerk of such district court, and a duplicate copy shall be made and certified by such officers, and filed in the office of said probate judge. Whenever a grand or petit jury is to be drawn to serve at any term of a district court, the judge of such district shall give public notice of the time and place of the drawing of such jury, which shall be at least twelve days before the commencement of such term; and on the day and at the place thus fixed, the judge of such district shall hold an open session of his court, and shall preside at the drawing of such jury; and the clerk of such court shall write the name of each person on the jury-lists returned and filed in his office upon a separate slip of paper, as nearly as practicable of the same size and form, and all such slips shall, by the clerk in open court, be placed in a covered box, and thoroughly mixed and mingled; and thereupon the United States marshal, or his deputy, shall proceed to fairly draw by lot from said box such number of names as may have previously been directed by said judge; and if both a grand and petit jury are to be drawn, the grand jury shall be drawn first; and when the drawing shall have been concluded, the clerk of the district court shall issue a venire to the marshal or his deputy, directing him to summon the persons so drawn, and the same shall be duly served on each of the persons so drawn at least seven days before the commencement of the term at which they are to serve; and the jurors so drawn and summoned shall constitute the regular grand and petit juries for the term for all cases. And the names thus drawn from the box by the clerk shall not be returned to or again placed in said box until a new jury-list shall be made. If during any term of the district court any additional grand or petit jurors shall be necessary, the same shall be drawn from said box by the United States marshal in open court; but if the attendance of those drawn cannot be obtained in a reasonable time, other names may be drawn in the same manner. * * * The grand jury must inquire into the case of every person imprisoned within the district on a criminal charge and not indicted. * * *'

A jury-list of 200 persons, from which to draw grand and petit jurors for the Third judicial district court for the year 1884, was made, certified, and filed in the office of the clerk of the court, under the above-cited provisions of the act of June 23, 1874, and a number was set opposite to each name. Those having even numbers opposite to their names were selected by the probate judge, and were reputed Mormons, and those having odd numbers opposite to their names were selected by the clerk of the court, and were reputed not to be Mormons. On the thirty-first of March, 1884, at a session of the court, 30 names were drawn from the jury-list, from which to impanel a grand jury for the April term, 1884. Of these 30, 13 had e en numbers, and 17 odd numbers. Of the 30, 5 did not appear, or were excused, leaving 25, of whom 10 had even numbers and 15 odd numbers. Those 25 persons, during the proceedings to impanel the grand jury, were all called and sworn, and examined as to their qualifications as grand jurors, 15 of them being each asked the following questions: 'Do you believe in the doctrine and tenets of the Mormon church? Do you believe in the doctrine of plural marriage, as taught by the Mormon church? Do you believe it is right for a man to have more than one undivorced wife living at the same time?' Each of the 15 persons so interrogated answered the questions affirmatively. Each was thereupon challenged by the prosecuting attorney, and the court allowed the challenges, and excluded each of those 15 persons from the grand jury. Thus every one of the 25 persons who was a reputed Mormon was excluded from the grand jury. Each of the 15 persons so interrogated had all the qualifications prescribed by law for grand jurors, unless disqualified by such answers. The defendant had not been charged with, or held to answer, the offenses charged in the indictment, or any criminal offense, at the time the grand jury was impaneled; the examination of the persons called as grand jurors, and the challenges, were wholly conducted and made by the prosecuting attorney; and no questions were propounded to or answered by persons with odd numbers opposite their names, respecting their religious belief. After those 15 persons were excluded, only 10 grand jurors accepted by the United States remained, out of the list of 30 originally drawn; and thereupon the court ordered a drawing of 10 additional names from the general list of 200, which was done, 3 having even numbers, and 7 odd numbers. A venire was issued for the 10, and 6 of them appeared, all having odd numbers, and 5 of the 6 were added to the 10 accepted, and the jury, as impaneled and sworn, consisted of those 15, all of them reputed non-Mormons, and it found and presented the indictment against the defendant.

The challenging and exclusion of the 15 persons is maintained to have been proper, under section 5 of the act of March 22, 1882, before referred to, and which reads as follows: 'That in any prosecution for bigamy, polygamy, or unlawful cohabitation, under any statute of the United States, it shall be sufficient cause of challenge to any person drawn or summoned as a juryman or talesman First, that he is or has been living in the practice of bigamy, polygamy, or unlawful cohabitation with more than one woman, or that he is or has been guilty of an offense punishable by either of the foregoing sections, or by section fifty-three hundred and fifty-two of the Revised Statutes of the United States, or the act of July 1, eighteen hundred and sixty-two, entitled 'An act to punish and prevent the practice of polygamy in the territories of the United States and other places, and disapproving and annulling certain acts of the legislative assembly of the territory of Utah; or, second, that he believes it right for a man to have more than one liv- ing and undivorced wife at the same time, or to live in the practice of cohabiting with more than one woman; and any person appearing or offered as a juror or talesman, and challenged on either of the foregoing grounds, may be questioned on his oath as to the existence of any such cause of challenge, and other evidence may be introduced bearing upon the question raised by such challenge; and this question shall be tried by the court. But as to the first ground of challenge before mentioned, the person challenged shall not be bound to answer if he shall say upon his oath that he declines on the ground that his answer may tend to criminate himself; and if he shall answer as to said first ground, his answer shall not be given in evidence in any criminal prosecution against him for any offense named in sections one or three of this act; but if he declines to answer on any ground, he shall be rejected as incompetent '

As each of the 15 persons challenged and excluded anwered, when questioned on oath, that he...