People v. Hampton

• Citation: 9 P. 508,4 Utah 258
• Court: Utah Supreme Court
• Decision Date: 06 February 1886
• Parties: THE PEOPLE OF UTAH TERRITORY, RESPONDENT, v. B. Y. HAMPTON, APPELLANT

9 P. 508

4 Utah 258

THE PEOPLE OF UTAH TERRITORY, RESPONDENT, v. B. Y. HAMPTON, APPELLANT

Supreme Court of Utah

February 6, 1886

APPEAL from a judgment of the district court of the third district and from an order refusing a new trial. The opinion states the facts.

Affirmed.

Messrs Hoge & Burmester, and Sheeks & Rawlins, for the appellant.

The challenge to the panel should have been sustained Thomas' Coke, vol. 3, 509, 510; Proffatt on Jury Trials, secs. 150, 151, 152; Thomson & Merriam on Juries, secs. 130, 131, 140; Munshower v. Patton, 10 Serg. & R. 334; Wood v. Rowan, 5 John. 133; Gordon v. Turner, 9 John. 260; Pringle v. Huse, 1 Cowen, 132 and note; Van Auken v. Beemer, 4 N. J. L. 364; Cooley's Const. Lim., chap. 13; Strauder v. West Virginia, 100 U.S. 303; Virginia v. Rives, 100 U.S. 313; Ex Parte Virginia, 100 U.S. 339.

The indictment is insufficient. The facts stated do not constitute the offense sought to be charged, or any offense against this defendant: Comp. Laws, p. 584, sec. 1916; Laws of 1878, p. 117, sec. 267; Laws of 1878, p. 92, secs. 150 and 151; see also 9th Cowan, p. 577, Lambert v. The People; 13th Iowa, p. 269, State v. Jones; 5th Barr., p. 60, Hartman v. Commonwealth, 4th Crim. Law Mag., p. 891, U. S. v. Watson; 3d Wharton Cr. Law, sec. 2305; 4th Met., p. 111, Commonwealth v. Hunt.

The court charged the jury "that a house of ill-fame is a house kept for the convenience and shelter of persons desiring unlawful sexual intercourse and in which such intercourse is practiced."

This instruction is erroneous and misleading: Cadwell v. The State, 17 Conn. 467; State v. Blakesley, 38 Conn. 523; Commonwealth v. Lambert, 12 Allen, 177; O'Brian v. The People, 28 Mich. 213; State v. Hand, 7 Iowa 411.

Mr. C. S. Varian, for the respondent.

POWERS, J. ZANE, C. J., and BOREMAN, J., concurred.

OPINION

POWERS, J.:

A peculiar state of facts is shown by the record in this case. It would seem that lewd women were employed to open houses of ill-fame in the city of Salt Lake. It is claimed that men who had not sufficient self-respect or morality to resist such allurements were beguiled therein, and that the unholy practices with the women were watched from adjoining apartments through peep-holes by members of the police force. It is insisted that this was done in the interest of virtue and morality. The defendant, Brigham Y. Hampton, is a prominent member of the Church of Jesus Christ of Latter-Day Saints, commonly known as the Mormon Church, and this fact becomes material in considering the objection to the panel of jurors hereafter referred to. He has held many positions of trust in Salt Lake City, and at the time of his conviction he was the collector of license of that city, and was also a member of the police force. In the spring of 1885 he, or some one connected with him, conceived the idea of employing prostitutes to do what he, in his testimony, terms "detective work." He states that he had observed that there were a great many street-walkers in his city, and that many young girls were being lead from the path of virtue. He seems to have consecrated himself to a great work. He proposed to put an end to houses of ill-fame and prostitution, and he went about this work by immediately opening more houses. He hired his own prostitutes, he opened his own houses, and from points of vantage he and his co-laborers began a study of the bestial practices that occurred within the dens of infamy which he had established.

He does not appear to have been the only one concerned in this transaction, but he and a man named Salmon seem to have been the moving spirits. We shall not deal with any more of the details than we are compelled to do in determining the case; but this does not and should not prevent us from expressing our disapproval of the conduct of the defendant, or from condemning, as the highest court of this territory should condemn, the wicked and disgraceful conspiracy disclosed.

I. The defendant challenged the panel of jurors summoned for the term by the United States marshal upon an open venire. It was claimed that the marshal was biased and prejudiced against the defendant, and had formed and expressed an unqualified opinion that the defendant was guilty. It was also claimed that the marshal intentionally omitted to summon any person as a juror who was a member of the Mormon Church. To sustain this challenge, the only witness called by the defendant was the marshal himself. He stated that the panel was the regular panel summoned for the term; that he did not have any bias against the defendant, and that he did not select men whom he thought would convict. He stated that he aimed to secure impartial jurors, and that he did not select Mormons because he thought they would not be impartial. That he selected a class of men whom he had reason to believe would be fair and just. He stated that he had not talked with any of the jurors; that he did not personally summon them, but that he prepared the list. He also said that he had no aim except to secure proper men.

We think the challenge was properly overruled. The officer, by his testimony, does not appear to have been biased, and even if he had been, the men returned were unobjectionable and possessed the statutory qualifications. Suppose an officer, who was a member of the Methodist church, in summoning a jury to try a Presbyterian, should purposely omit to summon any Presbyterian, would that be a ground for challenge? The defendant is entitled to a jury of qualified and impartial men. He cannot claim, as a matter of right, anything more. He cannot insist that men of his religious or political faith be upon the jury. It was said in the case of People v. Jewett, 3 Wend. 320, that "whilst those who are selected are unexceptionable, the fact that others, equally unexceptionable, are excluded, is no cause of challenge to the array." No such bias, or partiality, or improper conduct upon the part of the officer was shown that would justify us in setting aside the verdict for the cause alleged.

It was said in Virginia v. Rives, 100 U.S. 313, 25 L.Ed. 667, that "it is a right to which every colored man is entitled, that in the selection of jurors to pass upon his life, liberty, or property, there shall be no exclusion of his race, and no discrimination against them because of their color. But this is a different thing from the right which, it is asserted, was denied to the petitioners in the state court, viz., a right to have the jury composed in part of colored men. A mixed jury in a particular case is not essential to the equal protection of the laws."

And, again, on page 355 of the same case, it is said that "from the return of the district judge it would seem that in his judgment the presence of persons of the colored race on the jury is essential to secure to them the 'equal protection of the laws,' but how this conclusion is reached is not apparent, except upon the general theory that such protection can only be afforded to parties when persons of the class to which they belong are all allowed to sit on their juries. The correctness of this theory is contradicted by every day's experience. Women are not allowed to sit on juries; are they thereby denied the equal protection of the laws? Foreigners resident in the country are not permitted to act as jurors, yet no one will pretend that they do not enjoy the protection of the law."

We have cited the above as illustrating our view that a man on trial cannot claim, as a matter of right, that men of his color or of his faith be upon the jury which tries him. Of course, an officer summoning a jury should not exclude men merely because they are of the same faith as the defendant: Ex parte Virginia, 100 U.S. 339, 25 L.Ed. 676. But that question does not arise in this case. The officer omitted to summon Mormons, he states in his testimony, because they would not be impartial. They were omitted, not because they were Mormons, but because they were partial. This was clearly within the discretion of the marshal. When an officer is required to summon a jury upon an open venire, it rests largely in his discretion as to what men shall be summoned. So long as he does not abuse that discretion, but selects men who meet the requirements of the statute, the defendant has no cause for complaint. In the case at bar no jury who had any regard for their oaths could have found any other verdict than guilty.

II. The court charged the jury that "a house of ill-fame is a house kept for the convenience and shelter of persons desiring unlawful sexual intercourse, and in which such intercourse is practiced." It is argued that this instruction is erroneous and misleading. We are of the contrary opinion. The defendant, in his testimony, denied ever making any agreement with the woman with whom, it is alleged, he conspired to open a house of ill-fame. His testimony was to the effect that the woman had already opened a house of prostitution when he first met her, and that he simply employed her to do some detective work. That is, he was to pay her twenty-five dollars for every affidavit she would make charging men with having visited her house. The defendant himself made affidavits setting forth the fact that the house was a house of ill-fame, and caused arrests for visiting the place for lewd purposes. The fact that the house was a house of ill-fame was not seriously disputed on the trial. The defense alleged that whatever the defendant did was done with an honest intention to detect and punish crime, and the court charged the jury in connection with the extract just quoted that if the jury believed "the defendant only intended to detect and punish crime," then he must be found not guilty. Under such a state of...