| 5
S.Ct. 949 29 L.Ed. 179 (Cite
as: 114 U.S. 477, 5 S.Ct. 949) Supreme
Court of the United States CLAWSON v. UNITED
STATES [FN1] FN1
S. C. 5 Pac. Rep. 689.
April 20, 1885 In
Error to the Supreme Court of the Territory of Utah. West
Headnotes Grand
Jury k5 193k5 Under
section 5 of the act of congress of March 22, 1882, 22 Stat. 30, 28 U.S.C.A. §
426, which provides "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 * * * that
he believes it right for a man to have more than one living and undivorced wife
at the same time," the proceedings to impanel the grand jury which finds an indictment
for one of the offenses named, under a statute of the United States, against a
person not before held to answer, are a part of the prosecution, and grand jurors
are within the provision; and the indictment is good, although persons drawn and
summoned as grand jurors were excluded by the court from serving on the grand
jury, on being challenged by the United States, for the cause mentioned, the challenges
being found true. Jury
k70(1) 230k70(1) Where,
under section 4 of the act of congress of June 23, 1874, 18 Stat. 254, "in relation
to courts and judicial officers in the territory of Utah," in the trial of an
indictment, the names in the jury box of 200 jurors provided for by that section,
are exhausted, when the jury is only partly impaneled, the district court may
issue a venire to the United States marshal for the territory, to summon jurors
from the body of the judicial district, and the jury may be completed from persons
thus summoned. The provisions of section 4 are not exclusive of the ordinary methods
of obtaining a jury.
**949 *478 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 **950 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 *479
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 *480 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 **951
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
even 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 *481 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 living
*482 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;
**952 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 believed it right for a man to have more than one undivorced wife living
at the same time, he was properly excluded, if section 5 of the act applied to
the case. It is contended that that section did not apply because the defendant
had not been held to answer, and there was no prosecution against him. The language
of the section is that 'in any prosecution for bigamy, polygamy, or unlawful cohabitation,
under any statute of the United States, it shall be sufficient cause of challenge,'
etc. It is urged that the proceedings to impanel a grand jury were not part of
a prosecution, and that the prosecution could not begin until after the grand
jury had been completely impaneled. But we think this is too narrow a view of
the statute. The whole scope of section 5 is to prescribe what shall be sufficient
causes of challenge to be made by the United States in a case of bigamy, polygamy,
or unlawful cohabitation. It is the United States alone who would desire to exclude
from the grand jury persons answering the descriptions named in the section It
is not contemplated that a person to be prosecuted for the offenses specified
would challenge for any of the causes set forth. The mischief to be *483
remedied was the having as grand jurors, against the interest of the United States,
the persons specified in a prosecution for the particular offenses named. If the
grand jury enters upon the investigation of cases involving the offenses designated,
and such investigation results in the finding of an indictment for any of those
offenses, it cannot properly be alleged by the defendant in the indictment that
the prosecution did not, within the meaning of section 5, begin with the first
step in the proceedings to obtain the grand jury which found the indictment. And,
for the protection of the defendant himself, it would necessarily be equally held
that he was entitled to claim that such proceedings were a part of the prosecution
against him, because otherwise he could have no right to question those proceedings. The
prosecution was one for offenses created by a statute of the United States. That
is the meaning of section 5 of the act. And it is not an objection that can be
urged by this defendant that the same grand jury might have been called upon to
act on other offenses than those named in that section. It is also urged that
section 5 does not apply to grand jurors. The language is, 'any person drawn or
summoned as a juryman or talesman'-- 'any person appearing or offered as a juror
or talesman.' In view of the fact that, by section 4 of the act of June 23, 1874,
both grand jurors and petit jurors are to be drawn from the box containing the
200 names, and are to be summoned under venires, and are to constitute
the regular grand and petit juries for the term, and of the further fact that
the persons to be challenged and excluded are persons not likely to find indictments
for the offenses named in section 5, we cannot doubt that the words 'juryman'
and 'juror' include a grand juror as well as a petit juror. There is as much ground
for holding that it includes the former alone, as the latter alone, if it is to
include but one. It must include one, at least, and we think it includes both.
The purpose and reason of the section include the grand juror; and there is nothing
in the language repugnant to such view. The use of the words 'drawn or summoned
as a juryman or talesman,' and of the words 'appearing or offered as a juror or
talesman,' does not have the *484 effect of confining the meaning of 'juror'
to 'petit juror,' on the view that the ordinary meaning of 'talesman' refers to
a petit juror. A grand juror is a juryman and a juror, and is drawn and summoned,
and it might well have been thought wisest to mention a 'talesman' specifically,
lest the words 'juryman' and 'juror' might be supposed not to include him. **953
It is objected that none of the grand jurors who were retained on the panel were
interrogated as to whether they believed it right for a man to live in the practice
of cohabiting with more than one woman. As to this it is sufficient to say that
the challenges were based on the affirmative answers to the third question, and
that the statute only specifies what shall be a sufficient cause of challenge,
and does not compel the making of the challenge or the asking of the questions.
After the motion to set aside the indictment was overruled, the trial was had,
on a plea of not builty. In impaneling a jury, it appeared that the list of jurors
drawn and summoned for the term, and also the general jury-list for the year,
consisting of 200 names selected and returned for a general jury-list, were exhausted,
and that no names remained in the general jury-box. Thereupon, the prosecuting
attorney, on the ground that the jury-list provided for by statute was exhausted,
moved the court that an open venire issue, to summon such jurors as were
necessary. The defendant objected to the issuing of an open venire or any
venire for jurors, on the ground that there was no law authorizing it. The
court overruled the objection, and the defendant excepted. By an order of the
court, a venire was then issued to the United States marshal for Utah territory,
commanding him to summon from the body of the judicial district 50 jurors. They
were summoned, and, on the return of the venire, the panel was challenged
by the defendant because the jurors were selected and summoned on an open venire.
The challenge was overruled and the defendant excepted. Like proceedings took
place in respect to two further open venires for 30 and 24 jurors, respectively.
Of the 12 persons who composed the jury, 11 were obtained from those summoned
under the open venires. *485
It is assigned for error that the petit jury was illegally constituted, in that
the court had no right to summon petit jurors on an open venire. The argument
is that the provisions of section 4 of the act of June 23, 1874, are, on their
face, exclusive; that the method prescribed by that section for obtaining jurors
is the only one that can be employed; that only the probate judge and the clerk
of the court can select the jurors and make the jury-list; that the grand and
petit jurors for a term must be drawn by the marshal from a box containing names
of persons thus selected, and constitute the regular grand and petit juries for
the term; that if, during the term, any additional grand or petit jurors are necessary,
they must be drawn by the marshal, in open court, from the same box; and that,
if the 200 names are all drawn out, for grand or petit jurors, at any time during
the year, there can be no more indictments found, or any more civil or criminal
jury trials had, in the court of the district, for the rest of the year, because
it is provided in section 4 that the jurors drawn from the box shall be jurors
only for the term, of which there are four in the year, and that the names drawn
shall not be again placed in the box until a new jury-list is made, which is to
be done annually in January. A result so disastrous to the administration of justice,
so certain to impair, if not destroy, public and private rights, is not to be
permitted, unless imperatively required. The act of June 23, 1874, does not prescribe
the making of a new list by the probate judge and clerk except once a year, in
January, or the making by them of an additional list at any time during the year.
But that act does not directly, or by implication or intendment, exclude the use
of an open venire when the 200 names are exhausted during the year. It
provides that the jurors drawn and summoned shall constitute 'the regular
grand and petit juries for the term, for all cases.' By other provisions of law,
each of the district courts of the territory is required to hold four terms a
year. There is no doubt that jurors must be drawn from the 200 names, or those
of them remaining in the box, so long as any remain. But the question is, what
is to be done when those names are exhausted? If there is no method that can be
resorted *486 to to obtain jurors, in such event, the provisions in section
5 of the act of 1882, for challenges by the United States, with a **954
view to indictments for the offenses named in that section, will have proved suicidal,
and resulted in destroying all opportunity to find or try such indictments. We
are not referred to any statutory provision, in any act of congress, or any act
of the territory, which forbids the use of an open venire when the 200
names are exhausted. The argument is that the provisions of section 5 of the act
of 1882 cover the entire subject of obtaining jurors, and do not allow of any
supplementary measures; and that such measures cannot be resorted to unless affirmative
statute authority, directed to the very point, is to be found. The
supreme court of Utah, in its opinion affirming the judgment in the present case,
did not refer to any statute of congress, or of the territory, directly authorizing
the open vinire, but rested the power to issue it on the fact that such
power was inherent in the court, and was not forbidden by any statute in force
in Utah; and held that it followed as an incident to the authority and duty of
the district court to hold its sessions and try by jury indictments for crimes.
We concur in this view, so far as the resort to the open venire after the
exhaustion of the 200 names is concerned. The
fourth section of the act of 1874 prescribes the rule to be observed, to the extent
in which it prescribes any rule. It proceeds on the view that the jury-list of
200 names will be sufficient for ordinary purposes, or, as it expresses it, for
'the regular grand and petit juries for the term;' and it provides what shall
be done so long as there are any names left in the box. But it is silent as to
what shall take place when the names are all exhausted. It does not forbid the
ordinary and well-known resort to an open venire. Moreover, section 5 of
the act of 1882, in regard to prosecutions like the present one, prescribes what
shall be a sufficient cause of challenge to a person 'drawn or summoned as a juryman
or talesman,' and what questions may be put to 'any person appearing or offered
as a juror or talesman;' thus recognizing a 'talesman' as distinct from a 'juryman'
or a 'juror.' The persons drawn from the box of 200 *487 names are 'jurors,'
and are so defined and called in section 4 of the act of 1874. Congress, therefore,
in using the word 'talesman,' had reference to a person not drawn from such box.
The word 'talesman' is not satisfied by referring it to the additional jurors
which section 4 of the act of 1874 says may and shall be drawn from the box, if
they 'shall be necessary,' during the term. They are not talesmen, in any proper
sense, but are as much regular jurors as those first drawn from that box. The
principle which authorized the action of the court in obtaining petit jurors,
in this case, after the statutory measures had been exhausted, is sanctioned by
authority. Bac. Abr. 'Juries,' C; 1 Chit. Crim. Law, 518; 2 Hale, P. C. 265, 266;
U. S. v. Hill, 1 Brock. 156; Mackey v. People, 2 Colo.
13; Stone v. People, 2 Scam. 326; Straughan v. State,
16 Ark. 37, 43; Wilburn v. State, 21 Ark. 198, 201; Gibson
v. Com. 2 Va. Cas. 111, 121; Shaffer v. State, 1 How. (Miss.)
238, 241; Woodsides v. State, 2 How. (Miss.) 655, 659; State
v. Harris, (Sup. Ct. Iowa, Sept. 1884,) 20 N. W. Rep. 439; S. C. 17 Chi.
Leg. N. 58. By section 1868 of the Revised Statutes, the district courts of the
territory have common-law jurisdiction, and, under section 1874 of the Revised
Statutes, and section 1061 of the Compiled Laws of Utah, of 1876, those courts
have original jurisdiction, in criminal cases. By section 217 of the Criminal
Procedure Act of Utah, of February 22, 1878, all issues of fact in criminal cases
must be tried by jury, and by section 7 the defendant in a criminal action is
entitled to a speedy trial. A venire to summon jurors is a writ necessary
to the exercise of the jurisdiction of the court, and agreeable to the principles
and usages of law, where it is not forbidden or excluded, and where the affirmative
provisions of law have, so far as they extend, been first observed. In U. S.
v. Hill, (before cited,) Chief Justice MARSHALL, speaking of the law as
it then existed, says: 'It has been justly observed that no act of congress directs
grand juries, or defines their powers. **955 By what authority, then, are
they summoned, and whence do they derive their powers? The answer is that the
laws of the United States have erected courts which are invested with criminal
jurisdiction. This jurisdiction they are bound to exercise, *488 and it
can only be exercised through the instrumentality of grand juries. They are, therefore,
given by a necessary and indispensable implication. But how far is this implication
necessary and indispensable? The answer is obvious. Its necessity is co-extensive
with that jurisdiction to which it is essential.' The
cases to which we are referred by the plaintiff in error were cases where express
statute provisions had been disregarded or violated. If, in this case, an open
venire had been issued before the 200 names were exhausted, a different question
would have been presented. The
record shows no error, and the judgment is affirmed. Copr.
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