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the act of June 23, 1874, and a number was set opposite to each name. Those baving 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, 1881, at a session of the court, 30 names were drawn froin the jury-list, from which to impanel a grand jury for the April term, 1881. 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*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 Morinon was excluded froin 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 iinpaneled; 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 then 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 suficient 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 Ctah;'or, second, that he believes it right for a man to have more than one living 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 him
self; 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 froin 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 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 sec. tion. 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 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 te mention a "talesinan” specifically, lest the words “juryman" and "juror” might be supposed not to include hiin.
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 sutlicient 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 wils had, on a plea of not guilty. 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.
*It is assigned for error that the petit jury was illegally constituted, in tható 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 im. peratively 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 tenire 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 naines, or those of them remaining in the box, so long as any remain. But the ques. tion is, what is to be done when those names are exhausted? If there is no method that can be resorted to to obtain jurors, in such event, the provisions in
ection 5 of the act of 1882, for challenges by the United States, with a
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 atfirmative 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 venire, 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 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. $. 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 pow
ers. 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 jurisdic.com tion they are bound to-exercise, 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.
(114 U. S. 464)
CAVENDER 0. CAVENDER."
(April 20, 1885.) 1. PLEADING--DEMURRER-COMPLAINT-OBJECTION AS TO MATTERS NOT WITHIN KNOWLEDGE OF COURT.
A defendant cannot, by a demurrer, object to a bill in that it does not sufficiently set forth the nature of a trust imposed by a will; for the court cannot assume that any of the provisions of the will relating to the subject-matter of the trust were
omitted from the bill. 2. SAME_ANSWER-ADMISSIONS BY DEFENDANT-ESTOPPEL.
A defendant to a bill in equity, who states in his answer, under oath, the provisions of a writing which is presumed to be in his possession, cannot complain
that the court acted upon his admission. 3. TRUSTEES-NEGLECT OP Duty-M18MANAGEMENT OF PROPERTY-CAUSE OF REMOVAL.
Neglect of duty and mismanagement of trust property, if proved, are sufficient
grounds for the action of a court of equity in decreeing the removal of a trustee. 4. SAME-NEGLECT TO INVEST MONEY-BREACH OF TRUST.
Neglect to invest money in his hands is a breach of trust in a trustee, and is ground sufficient for his removal. Appeal from the Circuit Court of the United States for the Eastern District of Missouri.
Robert S. Cavender, the appellee, was the plaintiff in the circuit court. He stated his case in the blll of complaint substantially as follows: John Cavender, deceased, by his last will and testament, dated May 6, 1858, and probated in the probate court
of the city—then county—of St. Louis, and state of Missouri, February 4, 1862, made and constituted the defendant, John S. Cavender, executor of his estate, and, after payment of debts, as therein mentioned, bequeathed one-half of the remainder of his estate to John S. Cavender, aforesaid, as trustee, to hold the same in trust for the use and benefit of the plaintiff during the term of his natural life, and by said will directed him to invest the same in real or personal securities, and to pay over the rents, profits, issues, and incomes thereof to the plaintiff semi-annually, at the end of every half year, during his life-time. The probate court, by its order and decree made on October 5, 1878, found in the hands of the defendant, as such executor, the sum of $17,169.49 belonging to the trust estate, and directed him to pay over the same to himself as trustee; and afterwards, on December 3, 1878, the defendant executed his bond as trustee, with sureties, in the penalty of $25,000, conditioned for the faithful execution of his trust. On April 22, 1879, John S. Cavender, trustee, filed in the probate court his written receipt, whereby he acknowledged that he had received from John S. Cavender, executor, the sum of $17,169.49, and thereupon prayed for his dis
IS. C. 8 Fed. Rep. 641.