United States v. Clawson

• Decision Date: 27 January 1885
• Citation: 5 P. 689,4 Utah 34
• Court: Utah Supreme Court
• Parties: UNITED STATES, RESPONDENT, v. RUDGER CLAWSON, APPELLANT

5 P. 689

4 Utah 34

UNITED STATES, RESPONDENT, v. RUDGER CLAWSON, APPELLANT

Supreme Court of Utah

January 27, 1885

APPEAL from a conviction of polygamy and unlawful cohabitation of the district court of the third district and from an order refusing a new trial. The opinion states the facts.

Sentence and judgment of the lower court affirmed.

Messrs Bennett, Harkness & Kirkpatrick and Mr. F. S. Richards, for appellant.

The right to summon a jury by open venire must be found if at all in the common law. There is no common law in Utah, it being conquered or ceded territory previously subject to different laws: American Ins. Co. v. Ocean Ins. Co. 1 Peters 511; Strother v. Lucas, 12 Peters 410; United States v. Powers, 11 How. 570; Norris v Harris, 15 Cal. 226; Bank v. Kinner, 1 Utah 100; Clinton v. Englebrecht, 13 Wall. 446.

Mr William H. Dickson and Mr. Charles S. Varian, for the respondent.

District courts of the territory have the same jurisdiction as circuit and district courts of the United States.

United States v. Haskin, 3 Sawyer 273; Ex Parte Crow Dog, 109 U.S. 560.

Exercise jurisdiction in the same way: United States v. Nye, 4 F. 890; United States v. Outerbridge, 5 Sawyer 621; United States v. Reid, 12 Howard 361.

Power to issue open venire implied: United States v. Hill, 1 Brock, 156; Stone v. People, 3 Scammon 333; Mackay v. People, 2 Colorado 16; Wilson v. People, 3 Colorado 328; 1 Chitty. Crim. Law 310-312; 4 Blackstone 301-2; United States v. Rose, 6 F. 136; United States v. Munford, 16 F. 164; State v. Haines, Chicago Legal News, Nov. 1, 1884.

ZANE, C. J. TWISS, J., concurred. EMERSON, J., expressed no opinion.

OPINION

ZANE, C. J.:

At the last September term of the third judicial district court, the appellant was tried on an indictment containing two counts; the first charged polygamy, and the second unlawful cohabitation. He was convicted on both counts, and sentenced on the first to pay a fine of $ 500.00 and to imprisonment in the penitentiary for a term of three years and six months, and on the other count to pay a fine of $ 300.00 and to imprisonment for a term of six months. From this judgment he has appealed to this court.

The defendant insists that the jury that tried him was not legally constituted because section 4 of an act of Congress in relation to courts and judicial officers in the territory of Utah, approved June 23, 1874, was not followed in the selection of the jury.

The provisions of that section in so far as they are material to this case are that annually in the month of January, the clerk of the district court and the judge of probate of the county in which such court is to be held, shall make a jury list from which grand and petit jurors shall be drawn to serve until a new list shall be made, as in the section provided; that the clerk and the judge shall alternately select a name until two hundred names have been selected.

The section also provides that the names on the list shall be written on slips of paper and deposited in a box, prescribes the mode of drawing the regular grand and petit jurors for each term and directs that the names so drawn shall not be returned to the box until a new list is made according to the manner prescribed in the section.

It is also provided that, if during the term any additional jurors shall be necessary they shall be drawn from the box by the United States marshal in open court.

The record shows that during the trial of the defendant and before the requisite number of jurors had been obtained, all the names were drawn out of the box, and the list of two hundred names was exhausted; that the district attorney, on the ground that the list provided for by statute was exhausted, then moved the court to issue a venire in order that the requisite number might be obtained, and the jury completed; and that thereupon a venire was issued to the marshal directing him to summon from the body of the district fifty jurors. From these the jury was completed.

This was the only means by which the court could obtain a jury to try the cause. For the clerk and probate judge are authorized to make a list only in January. The statute does not provide for a second list in any year; and to have stopped in the midst of the trial and to have issued a mandamus requiring the judge of probate and the clerk to do an act which the law either in terms or by fair construction did not require them to do, would have been unlawful, arbitrary and absurd; it would have resulted in injecting into the case on trial, a mandamus suit, and the result would have been confusion and useless delay. It is also likely that the jurors which would have been selected by the probate judge would have disqualified themselves for sitting in a polygamy case, by answering that they believed polygamy and unlawful cohabitation to be right. And the marshal is as certain as the clerk to select impartial jurymen. So that the real object in view--the selection of an impartial jury--was fully attained.

The court had two courses open before it--one was to stop the trial without the consent of the parties and to continue the case not only for the September term but for the December term as well, and to the February term, five months at least, and that too contrary to the Constitution, which guarantees to every man charged with a crime a speedy and impartial trial.

It is unreasonable to hold that Congress by the section in question intended to paralyze the action of the courts. If the method provided by the statute under consideration fails, it does not forbid the court from obtaining a jury by an open venire. If the common law method is repealed or forbidden it is wholly by construction and implication.

The laws of the United States expressly require each of the district courts of this territory to hold four terms a year. If the construction insisted upon by the appellant be correct, the number of the terms may be limited to two or even one term for the trial of polygamy cases.

There can be no court for the trial of criminal and other jury cases without a jury. But if the method expressed in the statute be exclusive, practically it may limit the terms to two or even one. If the position of appellant is right, the terms last year were limited to two for polygamy and unlawful cohabitation cases, because the list was not sufficient for the third term. And it appears that there was no jury for any class of cases for the December term, as no names at all were left in the box.

The court properly followed the statutory method of obtaining a jury until that method was exhausted; and it then was its duty to resort to the powers incident to it under the common law and to obtain a jury according to that method. This view is supported by the authorities cited by the prosecution. In an opinion given in the case of the United States v Rose, 6 Federal Reporter 136, Swing, D. J. quoted the language of section 2 of the act of June 30th, 1879, which is: "And that all such jurors, grand and petit, including those summoned during the session of the court, shall be publicly drawn from a box containing at the time of each drawing the names of not less than 300 persons possessing the qualifications prescribed in Section 800 of the Revised Statutes; which names shall have been placed therein by the clerk of such court and a commissioner to be appointed by the judge thereof, which commissioner shall be a citizen of good standing, residing in the district in which such court is held, and well known member of the principal political party in the district in which the court is held opposing that to which the clerk may belong; the clerk and said commissioner each to place one name in said box alternately without reference to party...