1. law, govt and politics

INDEXPOSITIO
Montana Grand Jury
Published by Humble O’Pinion at Smashwords.com
Copyright 2014 Humble O’Pinion
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Table of Contents
Chapter 1. Index-Hyper-linked index to all information on the Montana Grand Jury
Chapter 2. Expose body of information on the Montana Grand Jury
Chapter 3. Summary of Indexpositio Montana Grand Jury; by Humble O’Pinion
Preface. The following Report contains a full statute history of the grand jury system in Montana.
INDEXPOSITIO will provide evidence that the common law grand jury and county court system are the
substance and heart of the People’s Law, and that a certain group of people extinguished that system in
Montana, with the advent of statehood. The information in this Report is not appealing to many people.
Therefore, I have summarized this Report in Chapter 3
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Chapter 1 INDEX- grand jury of Montana and origin.
1066 William conquerors England, French laws for the new territory; common law/ grand jury in existence
1215 Magna Charta- written ref. to King’s/Baron’s inquisitor bodies, no mention of people’s grand jury
1791 Bill of Rights- Federal written reference to grand jury tradition
1862 gold strike in Bannack during summer; Caucasian miners invade; 500 miners/settlers by fall of 1862
1863 May- Bannack miner’s court; written rules from the Common Law
1863 December - March 1864 Vigilante hanging spree, Statutory takeover of the Common Law.
1864 Montana Organic Act May 26, 1864; territorial courts established ; supreme, district, probate courts
established; county court, grand jury not mentioned
1864-1865 Bannack Statutes First Territorial statutory grand jury
1866 2nd and 3rd Assembly- constitutional conventions, lost records. Untold until now
1867 Federal Reconstruction /townsite acts/ Organic Act amended.- Grand jury not mentioned
1868- 1899 Montana Territorial/State Supreme Court Reports/ Volumes 1-10 grand jury cases
1877- Territory v Corbet- first major grand jury case; territory claims common jurisdiction with grand jury.
1879 Revised Code/ supplement 1881 concerning grand jury
1880 Territory v Ingersoll; challenge to grand jury, indictment set-aside
1884 Constitutional Convention; county court & grand jury recognized; threats of abolishment
1884 “County Courts are substituted for the present Probate Courts” (showing distinction)
1887 Territory v Hart; challenge to grand jury in murder case
1889 Debate- on grand jury; constitutional convention before first STATE constitution (Art VIII)
1890 STATE v AH JIM First important ‘indictment verses information’ Supreme Court case
1895 Montana State Code; the first State statutory grand jury; controlled by State code.
1895 State v Brett Information; 14th Amend; privilege; GJ not restricted, “do away with the grand jury”.
1907 Montana Revised Code - cites Ah Jim (1890), Kingsley, King, Brett, Morris, Bowser, Hawk (1899)
1921 Montana Revised Code -prosecution in Constitution cites Ah Jim, Kingley, Durbons, Brett
1947 Revised Code of Montana grand jury statutes
1995 Montana Code Annotated: Grand Jury Statutes- first digital version of Code.
2014 INEXPOSITIO Summary by O’Pinion- cut through the boring crap to a two-page summary
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Chapter 2. EXPOSE- Body of Grand Jury Information
[1066-Evidence that grand juries pre-date William the Conqueror of 1066]
OUTLINES IN EUROPEAN HISTORY Part I, by Robinson and Breasted, 1914;
William the Conqueror turned England over to his sons. The youngest son was Henry I, who ruled from
AD 1100 to 1135. William’s grandson- Henry II ruled from 1154 to 1189. William the Conqueror was from
Normandy, France.
Page 412-413
In order to avoid all excuse for the private warfare, which was such a persistent evil on the Continent, he
undertook to improve and reform the law courts. He arranged that his judges should make regular circuits
throughout the country, so that they may try cases on the spot at least once a year. We, find too, the
beginning of our grand jury in a body of men in each neighborhood who were to be duly sworn in, from
time to time, and should then bring accusations against such malefactors as had come to their knowledge.
As for the “petty” or smaller jury of twelve, which actually tried the accused, its origins and histories are
obscure. Henry II’s juries left the verdict to Heaven in the ordeal; but a century later we find the jury of
twelve itself rendering verdicts. The plan of delegating to twelve men the duty of deciding on the guilt or
innocence of a suspected person was very different from earlier systems. It resembled neither the Roman
trial, where the judges made the decision, nor the mediaeval compurgation and ordeals. The decisions of
Henry’s judges were mainly drawn from old English custom, instead of from Roman Law as in France, and
they became the basis of the common law, which is still used n all English speaking countries.”
[1215] Magna Charta of England June 15,
(48) All evil customs relating to forests and warrens, foresters, warreners, sheriffs and their servants, or
river-banks and their wardens, are at once to be investigated in every county by twelve sworn knights of the
county, and within forty days of their enquiry the evil customs are to be abolished completely and
irrevocably. But we, or our chief justice if we are not in England, are first to be informed.
(52) To any man whom we have deprived or dispossessed of lands, castles, liberties, or rights, without the
lawful judgement of his equals, we will at once restore these. In cases of dispute the matter shall be
resolved by the judgement of the twenty-five barons referred to below in the clause for securing the peace
(61) In cases, however, where a man was deprived or dispossessed of something without the lawful
judgement of his equals by our father King Henry or our brother King Richard, and it remains in our hands
or is held by others under our warranty, we shall have respite for the period commonly allowed to
Crusaders, unless a lawsuit had been begun, or an enquiry had been made at our order, before we took the
Cross as a Crusader. On our return from the Crusade, or if we abandon it, we will at once render justice in
full. [Trial jury]
(55) All fines that have been given to us unjustly and against the law of the land, and all fines that we have
exacted unjustly, shall be entirely remitted or the matter decided by a majority judgement of the twenty-five
barons referred to below in the clause for securing the peace (§ 61) together with Stephen, archbishop of
Canterbury, if he can be present, and such others as he wishes to bring with him. If the archbishop cannot
be present, proceedings shall continue without him, provided that if any of the twenty-five barons has been
involved in a similar suit himself, his judgement shall be set aside, and someone else chosen and sworn in
his place, as a substitute for the single occasion, by the rest of the twenty-five.
(61- in part) In the event of disagreement among the twenty-five barons on any matter referred to them for
decision, the verdict of the majority present shall have the same validity as a unanimous verdict of the
whole twenty-five, whether these were all present or some of those summoned were unwilling or unable to
appear. [O’Pinion: the Magna Charta of 1215 is the baron’s national grand jury and the knight’s “county”
grand jury- both vassals of the King. Neither is true grand juries but styled after same; evidence of antiquity
of the true grand jury system]:
[1755] Sam Johnson Dictionary
[1765] Blackstone Commentaries on the Laws of England (1765-1769)
Sir William Blackstone on principals/ accessories, indictment 4 Bla Com 349, 350: The jury by whom
defendant was found guilty pro-ceeded without authority, and the verdict was and is a nullity. Both in
theory and practice the administration of justice in this country in criminal cases is governed by the same
ancient rules of procedure which is declared by Blackstone, thus: “ But the founders of the English law
have, with excellent forecast, contrived that no man should be called to answer to the king for any capital
crime, unless upon a preparatory accusation of twelve or more of his fellow-subjects,—the grand jury; and
that the truth of every accusation, whether preferred in the shape of indictment, Information, or appeal,
should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbors
indifferently chosen, and superior to all suspicion.” 4 Bla. Coin. 349, 350.
[1791] Bill of Rights -December 15, 1791.[from photograph of constitution in Smithsonian, 1947; please
note case letter- this is the original text]: No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or
naval forces, or in the Militia, when in actual service in time of war or public danger; nor shall any person
be subject for the same offense to be twice put in jeopardy of life or limb, nor shall be compelled in any
criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due
process of law; nor shall private property be taken for public use without just compensation. [The Bill of
Rights is federal law; the large case ‘M’ is the federal militia, not the county militia or county grand jury.
However, the source of this federal law is the same as the source of our county law- the common law of the
Colonies prior to the Revolution]
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[1828] Webster Dictionary 1828: “Jury” [Fr. jur’e, sworn, L. juro, to swear] A number of Freeholders,
selected in the manner prescribed by law, impaneled and sworn to inquire into and try any matter of fact,
and to declare the truth on the evidence given in the case. Grand juries consist usually of twenty-four
freeholders at least, and are summoned to try matters alleged in indictments. Petty juries, consisting of
twelve men, attend courts to try matters of fact in civil causes and to decide both law and fact in criminal
prosecutions. The decision of a petty jury is called the verdict”.
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[1863] At a meeting of the miners of Bannack District, Idaho, held May 23rd, 1863, the following Laws
were reported by the Committee and adopted by the people.
Art. 1. The officers of the District shall be President, Miners’ Judge, Sheriff and Coroner.
Art. 2. It shall be the duty of the President to preside at all business meetings of the District, and to act as
Judge, with power to call a jury, in cases regarding mining claims, the parties litigant mutually agreeing
thereto.
Art. 3. It shall be the duty of the Judge to preside over all trials of cases in the District, except in mining
cases, where parties litigant agree to refer to the President, and when called upon, to issue such process to
bring parties into Court, as is common and right in such cases, also to keep a docket and make an entry
therein of all suits brought, with the judgment or verdict rendered, also to have a jury of not less than four
nor more than eight impaneled, when requested so to do, by either plaintiff or defendant, and receive for his
services the sum of $5.00 for presiding at each and every suit, together with 25 cents for all oaths
administered, and the issuing of each and every writ in the case.
Art. 4. It shall be the duty of the Sheriff to serve all writs and executions, and carry out the awards of the
Court, and do all other acts appertaining to his office, and shall receive for his services, for attendance in
Court, during trial, $2.50; serving warrants, $1.00; serving summons, 50 cents, and 25 cents each for
summoning witness and jurors, and 25 cents mileage.
Art. 5. It shall be the duty of the Coroner, in all cases of violent or accidental death, to summon a jury of six
persons over which he shall preside, in examining into the causes and circumstances attending the death of
the person over whom the inquest is held, and when called on, the Sheriff shall act as the officer of the
inquest to summon jurors, and witnesses, and shall receive for the service the usual fee -- while the coroner
shall receive for his services on each and every inquest, the sum of $8.00.
Art. 6. In each and every suit, witnesses shall receive Two Dollars, and jurors Three Dollars, except in
cases where the trial shall last for more than one day, when additional fees will be allowed.
Art. 7. In all criminal cases, the punishment to be inflicted shall explicitly set forth in writing the verdict of
the jury.
Art. 8. All civil suits shall be commenced by complaint setting forth in plain, simple language, the cause of
action and remedy sought.
Art. 9. All attachments may issue when the complainant shall make oath before the Judge, that he has
reasons to believe that the defendant intends to leave the district, or turn over his property with intent to
defraud, and may be served on any property in defendant’s hands, or to garnishee debts in hands of others,
and shall hold good till five days after final judgment.
Art. 10. In all suits and cases, not herein provided for, the Common Law shall be adopted.
~
[1863] Late December. Vigilante Hanging Spree [O’Pinion: Settlers and carpetbaggers arrived in
Bannack, soon after the miners. The settlers and miners were interested in building a new society. The
miners elected a sheriff, a coroner and set up their own court, as was their custom. The carpetbaggers
however, as agents of Lincoln’s War, were interested in tearing out the miner’s society and their law by
“root and branch”. After a few criminal trials under the miner’s Common Law, the carpetbaggers must
have realized that the miners had their own laws and force would be needed to remove said laws.
Therefore, the carpetbaggers extended the Civil War into the gold fields of eastern Idaho. Their goal was
achieved by murder, by owning the newspapers of the day, and by foisting a new, foreign law upon the
inhabitants living between the Bitterroot and the Yellowstone. The new law is called ‘statute law’ and its
new court is called the ‘district court of the territory’. For a more complete rendition of the Bannack court
and Vigilante hanging spree of 1863-1864, see The Acme of Absurdity, by Humble O’Pinion- 2013; at
Smashwords.com
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[1864] Organic Act Section 9 (Judicial). [PDF 5 & 6/9; PDF 53 & 54/2293] And be it further enacted, That
the judicial power of said ter-ritory shall be vested in a supreme court, district courts, probate courts, and in
justices of the peace. The supreme court shall consist of a chief-justice and two associate justices, any two
of whom shall constitute a quorum, and who shall hold a term at the seat of government of said territory
annually; and they shall hold their offices during a period of four years, and until their successors shall be
appointed and qualified. The said territory shall be divided into three judicial districts, and a district court
shall be held in each of said districts by one of the justices of the supreme court at such times and places as
may be prescribed by law; and the said judges shall, after their appointments, respectively, reside in the
district which shall be assigned them. The jurisdiction of the several courts herein provided for, both
appellate and original, and that of the probate courts and of the justices of the peace, shall be limited by
law: Provided, that justices of the peace shall not have jurisdiction of any matter in controversy when the
title of land be in dispute, or where the debt or sum claimed shall exceed one hundred dollars; and the said
supreme and district courts, respectively, shall possess chancery as well as common-law jurisdiction.
[Clerks, writs, error, etc].
[1865] Bannack Statutes (start page 220), Sections 12- 88 on grand jury:
SEC. 12. Offences committed against the laws of this Territory shall be punished in the county in which the
offence is committed, except äs may be otherwise provided by law.
SEC. 13. Every person being without the Territory, commit-ting or consummating an offence by an agent
or other means with-in the Territory, is liable to be punished by the laws thereof in the same manner äs if
he were present and had commenced and consummated the offence within the Territory,
SEC. 14. When a crime has been committed partly in one county and partly in another, or the act or effects
constituting perquisite to the commission of the offence occur in two or more counties, the jurisdiction is in
either county.
SEC 15. When a crime is committed in this Territory, or in the boundary thereof, on board a boat or vessel
navigating a river, or lying therein, the jurisdiction is in any county within or bordering on the line of said
river on which the offence is committed.
SEO. 16. That the jurisdiction of the following cases is in any county in which the offence was committed,
or into or out of which the person upon whom the offence was committed has been brought: First, For
forcible or fraudulently taking, inveigling or kidnapping any negro or mulatto, to be sent out of the
Territory to be sold äs B, slave or held to service. Second, For taking or enticing away any female for the
purpose of prostitution. Third, For taking, decoying, or enticing away a child under the age of fifteen years,
with intent to detain or conceal it from its parents, guardian, or other person being lawful charge of the
child.
SEC. 17. When property taken in one county by burglary, robbery, larceny, or embezzlement, has been
brought into another county, the jurisdiction is in either county.
SEC. 18. An accessory before or after the facts may be punished in the county where he committed the
offence, or in the county where the principal offence was committed.
SEC. 19. That if any mortal wound is given, or poison administered, in one county, and death by means
thereof ensues in an-other, the jurisdiction is in either county.
LIMITATION OP CRIMINAL ACTIONS.
SEC. 20. Prosecutions for murder and manslaughter may be commenced at any time after the commission
of the offence.
SBC. 21. Prosecutions for an offence must be commenced with-in six months after its commission when
the penalty cannot exceed a fine of ten dollars.
SEC. 22. In all cases of misdemeanor, prosecutions therefor must be commenced within three years after its
commission; and in cases of felony, except murder and manslaughter, prosecution must be commenced
within fire years.
SEC. 23. If any person who has committed an offence is absent from the Territory, after the commission
thereof, or ?o conceal himself that process cannot be served upon him, the time of the absence or
concealment is not to be included in computing the period of limitation.
SEC. 24, For the apprehension of persons charged with offences, the magistrates mentioned in the first
section of this act are authorized to issue process to carry into effect the provisions of this chapter.
SEC. 25. Upon complaint being made to any such Magistrate that a criminal offence has been committed,
he shall examine, on oath, the complainant, and any witness produced by him, and shall reduce the
complaint to writing, and shall cause the same to be subscribed by the complainant, and if it appear that any
such offence has been committed, the magistrate shall issue a warrant, reciting the substance of the
complaint, and requiring the officer to whom it is directed forthwith to take the person accused and bring
him before such magistrate, or before some other magistrate of the county, to be dealt with according to
law, and in the same warrant may require the officer to summon such witnesses äs shall therein be named,
to appear and give evidence on the examination.
SEC. 26. Upon complaint being made to any magistrate of any county of this Territory that a criminal
offence has been committed, and that the offender has fled from the county in which the offence was
committed, such magistrate shall issue a warrant, directed to an officer of his own county, requiring the
offender to be apprehended and taken before some magistrate of the county where the ‘offence was
committed, to be dealt with according to law.
SEC. 27. If any person against whom a warrant may be issued for an alleged offence committed in any
county, shall, either before or after the issuing of such warrant, escape or be out of the county, the officer to
whom the warrant is directed may pursue and apprehend the party charged in any county in this Territory,
and for that purpose may command aid and exercise the same authority a£ in his own county.
SBC. 28. In cases where the offence charged is the warrant is not punishable with death or imprisonment in
the Territorial prison, if the person requests that he may be brought before a magistrate of the county in
which the arrest was made, for the purpose of entering into a recognizance, without a trial or examination,
the officer making the arrest shall take him before a magistrate of that county. He may take from the person
arrested a recognizance, with sufficient sureties, for his appearance at the court having cognizance Of the
offence, and next to be holden in the county where it shall he alleged to have been committed, and the party
arrested shall thereupon be liberated.
SEC. 29. The magistrate who shall let the person arrested to jail, shall certify the fact upon the warrant, and
shall deliver the same. with the recognizance by him so taken, to the person who made the arrest, who shall
cause the same to be delivered, without unnecessary delay, to the clerk’ of the court before which the
accused was recognized to appear; and 011 application of the complainant the magistrate who issued the
warrant shall cause such witnesses to be summoned to the same court as may be by him deemed necessary.
SEC. 30. If the magistrate in the county where the arrest was made shall refuse to admit to bail the person
so arrested and brought before him, or if no sufficient bail shall be offered, the person having him in charge
shall take him before the magistrate who issued the warrant, or in his absence before some other magistrate
of the county in which the warrant was issued, to be proceeded with according to law.
SEC. 31. When the offence charged in any warrant is punish-able with death, or imprisonment in the
Territorial prison, the officer making the arrest in some other county, shall convey the prisoner to the
county where the warrant was issued, and he shall be proceeded with in the manner directed by law.
SEC. 32. Every person arrested by warrant for any’ offence where no other provision is made for his
examination thereon, shall be brought before some magistrate of the same county, and the warrant, with the
proper return thereon, signed by the person who made the arrest, shall be delivered to such magistrate.
SEC. 33. Any magistrate may adjourn an examination or trial pending before himself, from time to time as
occasion shall require, not exceeding t-en days at one time. without the consent of the person charged, and
to the same or a different place in the county, as he ah all think proper; and in such case, if the party is
charged with a capital offence, he shall be committed in the meantime; otherwise he may be recognized in a
sum, and with sureties, to the satisfaction of the magistrate, for his appearance for such further
examination, and for want of such recognizance he shall be committed to prison.
SEC. 34. If the person so recognized shall not appear before the magistrate at the time appointed for such
further examination, according to the condition of such recognizance, the magistrate shall record the
default, and shall certify the recognizance with the record of such default, to the district court; and like
proceedings shall be had thereon äs upon the breach of the condition of a recognizance for appearance
before that court,
SEC. 35. When such person shall fail to give bail he shall be committed to prison by an order under the
hand of the magistrate, stating concisely that he is committed for further examination on a future day, to be
named in the order; and on the day appointed he may be brought before the magistrate, by his verbal order
to the same officer by whom he was committed, or by an order in writing to a different person.
SEC. 36. The magistrate before whom any person so brought upon a charge of having committed an
offence, shall, immediately examine the complainant and the witnesses to support the prosecution, on oath,
in the presence of the party charged, in relation to any matter connected with such charge, which may be
deemed pertinent.
SEC. 37. After the testimony to support the prosecution, the witness for the prisoner, if he have any, shall
be sworn and examined, and he may be assisted by counsel in such examination, and also in the crossexamination of the witnesses in support of the prosecution.
BEC. 38. The magistrate, while examining any witness, may a-t his discretion exclude from the place of
examination. all other witnesses; he may also if requested, or if he see cause, direct the witnesses for or
against the prisoner, to be kept separate so that they cannot converse with each other. until they shall have
been examinedSEC. S9. The testimony of the witnesses examined, may be reduced to writing by the magistrate, or under
his control, when he shall think it necessary, and shall be signed by the witnesses, “ required by the
magistrate.
SEC. 40. If it shall appear to the magistrate upon the whole examination, that no offence has been
committed, or that there is not probable cause for charging thc prisoner with the offence, he shall be
discharged.
SEC. 41. Persona charged with an offence punishable with death shall not be admitted to bail when the
proof is positive, or the presumption great, but, for all other offences, bail may be taken for such sums, äs in
the opinion of the magistrate, will secure the appearance of the person charged with the offence, at the
court where such person is to be tried.
SEC. 42. If it shall appear that an offence has been committed, and that there is probable cause to believe
the prisoner guilty, and if the offence be bailable by the magistrate, and the prisoner offer sufficient bail. it
shall be taken, and the prisoner discharged; bat if no sufficient bail be offered, or the offence be not bailable
by thc magistrate, the prisoner shall be committed for trial.
SEC. 43. When the prisoner is admitted to bail, or committed by the magistrate, be shall also bind by
recognizance such wit-nesses against the prisoner äs he shall deem material, to appear and testify at the
next term of court having cognizance of the office, and in which the prisoner is held to answer.
SEC. 44. If any magistrate shall be satisfied that there is good cause to believe that any such witnesses will
not perform the condition of their recognizance, unless other security be given, such magistrate may order
the witnesses to enter into a recognizance with such sureties may be deemed necessary to insure their
appearance at court.
SEC. 45. When any married woman or minor is a material wit-ness, any other person may bc allowed to
recognize for the appearance of such witness; or the magistrate may in his discretion take the recognizance
of such married woman or minor, in a sum not exceeding fifty dollars, which shall be valid and binding in
law, notwithstanding the disability of coverture or minority.
SEC. 46. All witnesses required to recognize either with or without sureties, shall, if they refuse, be
committed to prison by the magistrate, there to remain until they comply with such order, or be otherwise
discharged according to law.
SEC. 47. Any judge of a court of record, on application of any prisoner committed for a bailable offence,
may inquire into the case and admit such prisoner to bail, and any person committed for not Unding
sufficient sureties or refusing to give bail, may be admitted to bail by either of said judges or by the
committing magistrate.
SEC. 48. Any magistrate to whom complaint is made, or before whom any prisoner is brought, may
associate with himself one or more magistrates of the same county, and they may together, exe-cute the
powers and duties before mentioned.
SEC. 49. All examinations and recognizances taken by any magistrate äs provided herein, shall be certified
and returned by him to the clerk of the court having jurisdiction of the offence, and to which the party
charged is required to appear, on or before the first day of the next term thereof, and if such magistrate shall
neglect or refuse to return the same, he may be compelled forth-with by rule of court, and in case of
disobedience may be punished as for contempt.
SEC. 50. When any person under recognizances in any criminal prosecution, either to appear and answer,
or to prosecute an appeal, or to testify in any court, shall fail to perform the condition of such recognizance,
big default shall be recorded, and judgment entered against him, for the amount of such bond, and
proceedings may be taken to recover judgment against any or all of the sureties thereto, in any court having
jurisdiction.
SEC. 51. Any surety in such recognizance may be discharged from any liability thereon, at any time before
final judgment against him, upon surrendering to the court or the proper officer, the principal in such
recognizance, or by paying to the clerk of the court the amount for which he was bound äs surety, with such
coats as the courts shall direct.
SEC. 52. No action brought on a recognizance shall be barred or defeated, nor shall judgment thereon be
arrested, by reason of any neglect or omission to note or record the default of any principal or surety, at the
term when such default happened, nor by reason of any such defect in the farm of the recognizance, if it
sufficiently appear from the tenor thereof, at what court the party or witness was bound to appear, and that
the court, or magistrate before whom it was taken, was authorized by law to re-quire and take such
recognizance.
GRAND JURIES AND THEIR PROCEEDINGS.
SEC. 53. The grand jury shall consist of twelve persons, one of whom shall be appointed foreman by the
court, and the court in every case, where the foreman shall be discharged or excused, on any account.
before the grand jury is dismissed, shall appoint another foreman.
SEC. 54. An oath or affirmation shall be administered to the grand jury, in substance as follows :
You, and each of you do solemnly swear (or affirm), that you will diligently inquire into and true
presentment make, of all public offences against the laws of this Territory, committed or triable in this
county, of which you have or can obtain legal evidence. You will present no one through hatred, malice, or
ill-will; nor leave any unpresented through fear, favor or affection, or for any reward, or the promise or
hope thereof, but in all your presentments, you will present the truth, the whole truth, and nothing but the
truth, according to the best of your skill and understanding. So help you God.
SEC. 55. No grand Juror shall act äs such, on the investigation, of any charge against any person held to
answer to a criminal offence, when such grand Juror is the prosecutor, or a material wit-ness against such
person; and it shall be the duty of the court, in its charge to the grand jury, to so charge ther and for a
violation of this section, any grand Juror may be proceeded against äs for contempt.
SEC. 56. The foreman of every grand jury, from the time of his appointment to his discharge, shall be
authorized to administer any oath, declaration or affirmation, in the manner prescribed by law, to any
-witness who shall appear before such grand jury for the purpose of giving evidence of any matter
cognizable by them,
SEC. 57. Every grand jury may appoint one of their number to be clerk thereof, to preserve minutes of their
proceedings, and of the evidence given before them, which minutes shall be given to the attorney
prosecuting in the county, when so directed by the grand jury.
SEC. 58. Whenever required by any grand jury, it shall be the duty of the attorney prosecuting in the
county, to attend them for the purpose of examining witnesses in their presence, or giving them advice
upon any legal matter.
SEC, 59. Such attorney shall be allowed at all times to appear before the grand jury, on his request, for the
purpose of giving information relative to any matter cognizable by them, when they or he shall deem it
necessary, but no such attorney, or any other officer or person except the grand Jurors, shall be permitted to
be present during the expression of their opinions, or the giving their votes, on any matter before them.
SEC. 62. Whenever required by any grand jury, the foreman thereof, or the attorney prosecuting, the clerk
of the court in, which such jury is empanelled, shall issue subpoenas and other processes to bring witnesses
to testify before such grand jury.
SEC. 61. If any witness duly summoned to appear and testify before a grand jury, shall fall or refuse to
obey, the court shall cause compulsory process to be issued, to enforce his attendance, and may punish the
delinquent in the same manner and upon like proceedings äs provided by law for disobedience of a
subpoena in other cases.
SEC. 62. If any witness appearing before a grand jury, shall refuse to testify, or answer interrogatories in
the course of his examination, the fact shall be communicated to the court, in writing, in which, the
question refused to be answered shall be stated, and the court shall thereupon determine whether the
witness is bound to answer or not, and the grand jury shall be immediately informed of the decision.
SEC. 63. If the court determine that the witness is bound to answer, and he persist in his refusal to testify,
he shall be brought before the court, who shall proceed therein, in the same manner a» if the witness had
been interrogated, arid refused to answer, in open court.
SEC. 64. If any such witness shall be committed for a contempt, on account of his refusal to testify, and
shall persist in such refusal until the grand jury is dismissed, or until the expiration of his imprisonment, he
shall not be discharged from custody before the meeting of the next grand jury, when he shall be again
brought before said grand jury, and if be fail or refuse again to testify, he shall be recommitted.
SEC. 65. If any offence be discovered or committed during the sitting of any court after the grand jury
attending such court shall be discharged, or if the grand jury empanelled is not competent äs such to
investigate the charge against any person held to answer for the offence, such court may, in its discretion,
by an order, to be entered on its minutes, direct the sheriff to summon another grand jury.
SEC. 66. The sheriff shall accordingly, forthwith summon such grand jury, from the inhabitants of the
county, qualified to serve as grand jurors; who shall be returned and sworn, and shall proceed in the same
manner in all respects, äs provided by law, in respect to other grand juries.
SEC. 67. Members of the grand jury may be required by any court, to testify, whether the testimony of a
witness examined before such grand jury is consistent with, or different from the answers given by such
witness, before such court, and they may also be required to disclose the testimony given before them, by
any person upon a complaint against such person, for perjury, or upon his trial for such offence.
SEC. 68. No member of the grand jury shall be compelled, or allowed. to testify or disclose, in what
manner he or any other member of the grand jury voted. on any question before them, or what opinions
were expressed by any juror, in relation to any such question.
SEC. 69. No grand juror shall disclose any evidence given before the grand jury, nor the name of any
witness who appeared before them, except, whom lawfully required to testify as a witness, in relation
thereto, nor shall he disclose the fact of any indictment, having been found against any person for a felony,
not in actual confinement, until the defendant shall have been arrested thereon. Any juror violating the
provisions of this section, shall be deemed guilty of a misdemeanor, and, upon conviction thereof, may be
fixed in any sum not exceeding five hundred dollars, to which may be added imprisonment not exceeding
six months.
SEC. 70. In charging grand juries, the court shall apprise them of the last three sections, in relation to
disclosures, and in what case, and under what circumstances; any disclosures may or may not be made.
SEC. 71. No indictment can be found without the concurrence of at least nine grand jurors. When BÖ
found, and not otherwise, the foreman of the grand jury shall indorse it thus, “A true bill. A. B., foreman.”
SEC. 72. When there is not a concurrence of nine grand Jurors, in finding an indictment, the foreman shall
certify under his hand, that such indictment, is not a true bill.
SEC. 73. Indictments found by a grand jury, shall be presented by their foreman, in their presence, to the
court; and shall be issued and remain äs records of such court.
SEC. 74. No indictment for any trespass against the person or property of another, not amounting to a
felony, or for the first offences of petit larceny, shall be preferred, unless the name of a prosecutor is
indorsed thereon, except -when the same is preferred upon the Information or knowledge of two or more of
the grand Jurors, or on the Information of some public officer in the necessary discharge of his duty, in
which case, a Statement of the fact shall be made at the end of the indictment, and signed by the foreman of
the grand jury.
SEC. 75. The name of the prosecutor shall be indorsed. as such, by himself, or when his name has been
certified a prosecutor, with the examination äs provided by law, the indorsement may be made by the
attorney prosecuting; but no indictment shall be quashed for want of such indorsement, if the same shall bc
made before the motion to quash is disposed of.
SEC. 76. It shall not be necessary for any grand jury to present any presentment, prior to the presentation of
the indictment,
SEC. 77. Each indictment must be signed by the attorney prosecuting; and when the grand jury return any
indictment into court, the judge must. examine it; and if the foreman has neglected to indorse it “A true
bill.” with his name signed thereto, or if the attorney prosecuting has neglected to sign his name, the court
must cause thc foreman to indorse, or the attorney prosecuting to sign ‘*» ;id the case may require,. in the
presence of the grand jury.
SEC. 78. When an indictment is presented by the grand jury» the names of all material witnesses must be
indorsed upon his indictment; but other witnesses may afterwards be subpoenaed by the Territory; but
unless the names of such witnesses be indorse”-on the indictment, no continuance shall be granted to the
Territory on account of the absence of any witness whose name is not thus endorsed on account of the
absence
SEC. 79 All criminal…Territory of Montana.
SEC. 80. The forms…district court, and the rule…be determined, are those…
SEC. 81. The only pleading on the part of the Territory is the indictment.
SEC 82. The indictment must contain, first, the title of the action, specifying the name of the court to
which the indictment is presented, and the names of the parties. Second, A. statement of the facts
constituting the offence, in plain and concise language, without repetition.
SEC. 83. The indictment must be direct and certain, as it regards the party and the offence charged.
SEC. 85. In an indictment…
SEC 86. The words…
SEC 87. Words used in the statute to define a public offense need not be strictly pursued, but other words
conveying the same meaning may be used.
SEC. 88 the indictment shall be sufficient if it can be understood therefrom. First, that the indictment was
found by a grand jury of the county in which the court is held. Second, that the defendant is named on the
or described in an indictment as a person whose
[end of Bannack Statutes on grand jury]
[1868-1899] Montana Supreme Court: 36 cases mentioning indictment/grand jury in the caption;
- Territory v McElroy, 1 Mont. 86; [91/759] indictment against justice of the peace (1868)
- Territory v Ashby, 2 Mon. 89; [96/697] indictment follows statute [common law overridden] (1874)
- United States v. Upham, 2 Mont. 170. [120/697] Peremp. challenge to p jury; challenge on indict. (1874)
- Territory v. Stears, 2 Mon. 325, [331/697]; statutory murder; sufficiency of indictment (1875)
-Territory v Corbett 3 Mont. 50. - grand jury; fornication/ rape; [10/390 or 33/387] (1877)
- Territory v McAndrews 3 Mont.158 (1878) murder indictment insufficient; instructions; indict. ruling.
- Territory v Mahaffey 5 Mont. 478 indictment for sodomy; no statute definition (1878)
- Territory v Fox 3 Mont. 440 one charge per indictment, according to statute (1880)
- Territory v. Ingersoll, 3 Mont. 454. [308/390 WORD file] grand jury indictment “set aside” (1880)
-Territory v Young 5 Mont. 242, 5 Pac, 248. 255/665 indictment must support judgement (1884)
- TERRITORY v DUNCAN pdf 491/665 Indictment must support judgement. (1885)
- TERRITORY v BELL & LANE 1885 pdf 575/665 Indictment not insufficient (1885)
- Territory v Farnsworth 1885 316/665 misdemeanor need not be prosecuted by indictment (1885)
- Territory v Bell & Lane 1885 575/665 insufficient indictment- how cured. (1885)
- Territory v. Harding, 6 Mont, 323, 12 Pac. 750, [346/683] district attorney signs true bill (1887)
- Territory v, Layne, 7 Mont. 225, 14 Pac. 705.[250/683] Special prosecutor signs true bill (1887)
-Territory v Hart 7 Mont. 42, 67/683 Indict. prima facia evidence; peremptory challenges to a grand juror
- Territory v Manton 7 Mont. 162 [187/683] Indictment for murder by neglect [the charge] (1887)
- Barry v Larabie 204/683 accs’d on bond, awaiting indictment. No Bill, then True bill on second ch. 1887
-Territory v Jaspar 7 Mont. 1 [27/683] - bad case- indictment for fornication SC got this one wrong. (1887)
-Territory v Carson 7 Mont. 417 442/683 Surety on official bond; probate judge indicted (1888)
-Territory v Pendry 9 Mont. 67, 22 Pac 760 grand jury ‘legal’ evidence- who says (1890)
- State v Ah Jim 9 Mont. 167 172; 23 Pac. 76.indict/informati; grand jury created by Constitution (1890)
- State v Kingsley 10 Mont. 537 (?); indictment pre-statehood; information post statehood
- State v. Marion, 14 Mont. 458, 36 Pac. 1044, indictment on two good w/o signature on both
- State v. Brett, 16 Mont. 360, 364. 40 Pac. 873; info examin.., commit; do away w/ grand jury, etc.(1895)
- State v. Cain 16 Mont. 561, 563, 41 Pac. 709; court power to revoke information (1895)
- State v Bowser 21 Mont. 133- [164/669] Authority to file information (ca 1898)
- State ex rel. Nolan v. District Court of 1st Jud. Dist., 22 Mont. 25, 55 Pac. 916. [112.0/629]
- State v State v Spotted Hawk 22 Mont. 43 information filed by leave of court 1899 [129.2/1629]
- State v. Little Whirlwind, 22 Mont. 425, 56 Pac. 820. Court decides indictment or information (ca 1899)
~
1907 Revised Code of Montana, containing the Constitution of Montana [82/1976];
Article III-Section 8 -case law on grand jury in Constitution as of 1907]
Nine cases cited as of 1907; Territorial grand jury cases are not cited here (after Statehood) [pdf 85/1976]:
- State v Ah Jim- 9 Mont. 167; indictment did not execute itself
- State v King- 9 Mont. 450; judge correct
- State v Kingsley 10 Mont. 537; indictment pre-statehood; information post statehood (1889)
- State v Brett- 16 Mont. 360 information, examination and commitment.
- State v Bowser 21 Mont. 134 cite not given
- State v Morris 22 Mont. 43 cite not given
- State v State v Spotted Hawk 22 Mont 43; 55 Pac 1027. [123.9/1629] A defendant is not entitled to be
committed by a magistrate before he is informed against, and the information need not show on its face that
it was filed by leave of the court. [Read full case- interesting murder case. Many errors. ]
- State v Court 24 Mont. 35; 60 Pac 494 A contempt of court is not a criminal offense to be prosecuted as
laid down in this section.
- State v Judges 30 Mont 198; 76 Pac 11. [unknown- nothing written; case heard about 1904]
[1877] -Territory v Corbett 3 Mont. 50. - [Corbett was indicted by a Madison county grand jury for sexual
intercourse with his half-sister, as per statute, specified in the indictment (this is a hybrid grand jury- part
common law, part statute law). Corbett claims the grand jury has no jurisdiction, as no law has been
broken. Corbett: The law making it a crime for a man and woman to live together in an open state of
fornication, passed by the first legislature of the Territory, was omitted from the Codified Laws of 1872.
(so far, we are talking statute law); ] Justice KNOWLES: It is evident, from a consideration of the general
scope of the Criminal Practice Act, that a grand jury is one of the means provided the district court for
inquiring into public offenses, and that its jurisdiction in that particular is co-extensive with that of the
district court in which it is impaneled. Section 143 of the Criminal Practice Act undoubtedly settles this
question. It provides that “ the grand jury has power, and it is their duty to inquire into all public offenses
committed or triable within the jurisdiction of this court, and to present them to the court by indictment.”
[Corbett’s defense is goofy, saying incest breaks no statute law. Judgement affirmed, the indictment and
trial stand as fact. There is no reference to any earlier grand jury cases. Yet there are plenty other citations.
This appears to be the earliest significant Montana grand jury case].
50 TERRITORY v. CORBETT. [Aug. 1877] TERRITORY, respondent, v. CORBETT, appellant.
CRIMINAL, LAW jurisdiction of grand jury. The district courts have jurisdiction of every crime known to
our laws. 2 Mont. 531. The jurisdiction of the grand jury is co-extensive. Crim. Pr. Act, 143.
CONSTRUCTION OF STATUTE fornication variance in language surplusage. Section 146 of the
Criminal Laws, under which the indictment in this case was drawn, creates no specific crime of fornication
nor does it cover the case of living in a state of open fornication, which was constituted a crime by the first
legislature of Montana, but it covers any act of sexual intercourse between persons related within certain
prohibited degrees. A public offense need not be charged in the exact words of the statute; the meaning
must be preserved. Crim. Pr. Act, 169. It is sufficient if the statute offense is covered by a part of the charge
the rest may be rejected as surplusage. MARRIAGES prohibited incestuous. Marriages between parties
prohibited by law from inter-marrying are necessarily incestuous and void. Any act of sexual intercourse
between parties so related is within the terms of the law describing it as fornication or adultery. [word
twisting alert! Yes-siblings can not marry, but can they have intercourse? Secondly, the man is not
‘intermarrying’ unless his wife is a different race]
WITNESSES accomplice. An accomplice is a competent witness in this Territory. Codified Statutes, 271,
14. Neither the consent of the partner in crime nor permission of court is necessary. Neither is it necessary
that the charge against the accomplice be first dismissed.
ARGUMENTS OF COUNSEL. It is discretionary with the court to hear argument of counsel. If satisfied it
is not error to decline to hear it.
INSTRUCTIONS. It is not error in a court to refuse instructions that do not state correctly the law of the
case, or that have already been covered by instructions given.
EVIDENCE accomplice corroboration. The testimony of an accomplice need not be corroborated on every
item. Failure of this is not ground for a new trial.
CONFIDENTIAL, COMMUNICATIONS physicians. The consent of the patient only is necessary to
render competent the testimony of physicians touching matters of information acquired in attending such
patient in his professional capacity and which were necessary for them to know to enable them to prescribe
or act for the patient. Codified Statutes, 125, 450. In the present case the communications do not come
within the specified exemptions and no consent was necessary.
WITNESSES names indorsed on indictment. Our statutes do not require that the names of all the witnesses
for the Territory should be indorsed on the indictment. Codified Statutes, 214, 157.
MOTIONS FOR NEW TRIAL. AND IN ARREST OF JUDGMENT. The motion for a new trial should be
made before judgment is entered, but the hearing thereon may occur afterward. That in arrest of judgment
must be made and heard before judgment is entered. If made afterward the court may, without error,
disregard or overrule it.
Appeal from first District, Madison County*
THIS cause was tried in the court below by BLAKE, J.
J. E. CALLAWAY, for appellant. The demurrer to the indictment was improperly overruled.
Neither the court nor grand jury had jurisdiction of the offense charged. The offense charged is nowhere
made a crime by our laws. There is no such crime as fornication recognized, denied or * provided with
penalty under the statutes of Montana. The law making it a crime for a man and woman to live together in
an open state of fornication, passed by the first legislature of the Territory, was omitted from the Codified
Laws of 1872. No case is to be brought within the statute by construction. Bishop on Stat. Crimes, 220.
There is no law of the Territory declaring any marriage of parties, however related, incestuous and void.
The court erred in denying a change of venue. The court should exercise a reasonable discretion. People v.
Mahoney, 18 Cal. 188.The court erred in admitting testimony of the accomplice, and further in refusing to
hear argument of counsel thereon. The court erred in giving instructions No. 1, 2, 3, and in refusing
instruction No. 7. The motion for a new trial was improperly overruled ; the evidence under our laws was
not sufficient to justify the verdict. The failure to prove defendant was unmarried was fatal. Territory v.
Whitcomb, 1 Mont. 362. The admission of testimony of Smith and Yager was error. It did not corroborate
that of the accomplice. It is ground for new trial where defendant is found guilty on the uncorroborated
testimony of an accomplice. Ray v. The State , 1 Green (Iowa), 316 ; People v. McElvain, 39 Cal. 654 ;
People v, Ames, 39 id. 403 ; People v. Joslyn, id. 392. It was error to admit testimony of witnesses not
indorsed on. the indictment. Smith v. State, 4 Green (Iowa), 189. The court erred in rendering judgment
while a motion for a new trial was pending. Also for refusing to hear motion in arrest of judgment.
J. G. SPRATT, district attorney, for respondent. The sufficiency of the indictment in this case is to be tried
by the construction of section 146, page 303 of the Codified Statutes of Montana, under which it was
drawn, and also of section 2, page 520, of the same statutes, prohibiting marriages between parties nearer of
kin than second cousins. Intermarriage of such parties is void. Sedgwick on Stat. and Const. Law, 84-89.
Sexual intercourse between parties so related is incestuous. Bouvier’s Law Dictionary.
A witness may waive her right to refuse to testify when such testimony would criminate herself. No third
person can object. Southard v. Buford, 6 Cowen, 254 ; Starkie on Ev. 41 and note at bottom. Privileged
communications become competent testimony with consent of the patient. Defendant was not the patient
and had nothing to say. Johnson v. Johnson, 14 “Wend. 637 ; 1st Greenleaf on Ev., 249. Consultation with
physicians about procuring abortions are not privileged communications under our statute. Codified
Statutes, 125, 450 ; Hewett v. Prince, 21 Wend. 79. KNOWLES, J. This defendant was indicted by the
grand jury of Madison county, for a violation of the provisions of section 146 of the Criminal Laws of this
Territory. The section is as follows :
“ Persons being within the degrees of consanguinity, within which marriages are declared to be incestuous
and void, who shall inter-marry with each other, or who shall commit fornication or adultery with each
other, shall, on conviction, be punished by imprisonment in the Territorial prison not less than one, nor
exceeding ten years.” I will consider the points presented in this case somewhat in the order in which they
are presented in appellant’s brief. 1877.] TERRITORY v. CORBETT. 53 It is claimed that the grand jury
which found the indictment had no jurisdiction to inquire into the offense charged. According to section 6
of the Criminal Practice Act the district court has jurisdiction of all offenses which subject the offender to
imprisonment in the Territorial prison. An offender in such a case as this would be subject to imprisonment
in the Territorial prison. It was held by the court in the case of Territory v. Flowers, 2 Mont. 531, that the
district courts in the respective counties when they convene, had jurisdiction of every crime known to our
laws. It is evident, from a consideration of the general scope of the Criminal Practice Act, that a grand jury
is one of the means provided the district court for inquiring into public offenses, and that its jurisdiction in
that particular is co-extensive with that of the district court in which it is impaneled. Section 143 of the
Criminal Practice Act undoubtedly settles this question. It provides that “ the grand jury has power, and it is
their duty to inquire into all public offenses committed or triable within the jurisdiction of this court, and to
present them to the court by indictment.” There is then no validity in this first objection to the indictment.
The second ground of objection to the indictment is that the facts stated do not constitute a public offense.
Under this head it is urged that the indictment charges that the defendant committed “the crime of
fornication,” when there is no such crime known to our laws. It is true that our criminal statutes do not
specify any acts that shall constitute the crime of fornication, and there never was any such crime known to
our laws. The criminal laws enacted by the first legislative assembly of the Territory provided a punishment
for persons living in an open state of fornication. The indictment under consideration was evidently drawn
to meet the provisions of section 146 of our Criminal Laws, and under that section all the other facts
appearing, only one single act of fornication would be sufficient to constitute the crime therein specified.
Hence, although that law of the first legislative assembly may be in force now, it could not meet a case
where there was but a single act of fornication, for living in an open state of 54 TERRITORY v.
CORBETT. [Aug. T.], fornication is a different offense from fornication. The fact that the indictment calls
fornication a crime would not probably vitiate it. The words “ crime of “ may perhaps be considered
surplusage. Quite a number of cases are cited in Bishop on Crim. Proc., 481 and note 4, where words in
indictments have been regarded as surplusage when it is not so apparent that they are such, as in this
indictment. It is not necessary, however, that we should rest our decision upon this point upon the
construction of that clause in the indictment. The indictment, after setting forth all the other necessary facts,
contains this language : “ Did commit the crime of fornication with the said Sarah Parker, and then and
there had carnal and sexual intercourse with the said Sarah Parker.” If the language, “ then and there had
carnal and sexual intercourse,” is equivalent to the term, “fornication,” used in the statute, then the
indictment is sufficient in its allegations upon this point without the words, “ crime of fornication.” Section
169 of our Criminal Practice Act provides : “ Words used in the statute to define a public offense need not
be strictly pursued, but other words conveying the same meaning may be used.” Webster’s Dictionary
defines fornication to be “ the incontinence or lewdness of an unmarried person, male or female.”
Bouvier’s Law Dictionary defines it as, “ The unlawful carnal knowledge of an unmarried person with
another, whether the latter be married or unmarried.” The first count in the indictment charges that the
defendant is unmarried. There cannot be any doubt but the words, “carnal and sexual intercourse,” have a
meaning equivalent to the words used by the above works in defining fornication. The clause in the
indictment,” did commit the crime of fornication,” then may be surely treated as surplusage. “No
indictment shall be quashed or set aside for any surplusage when there is sufficient matter alleged to
indicate the crime and person charged.” Codified Statutes, 171, p. 217. The next objection to the indictment
is in effect an objection to the statute under which it is drawn. It is insisted that the laws of this Territory do
not declare any marriage incestuous and void, and without some law of this import this statute is a nullity.
We have a statute that reads as follows : “ No marriage shall be contracted while either of the parties shall
have a husband or wife living, nor between parties who are nearer of kin than second cousins, computing
by the rules of the civil law, whether by the half or whole blood.” Marriage under our laws is treated as a
civil contract. The general rule is that when any contract is entered into which is prohibited by a statute it is
void, and it is not necessary that the statute should in express terms declare it void. The prohibition of such
a contract in effect declares it void. Sedgwick on Stat. and Const. Law, 84 ; 2 Pars, on Cont. 746. The effect
of the above statute then is to declare void any marriage between the defendant and Sarah Parker, because it
appears that the defendant is her half-brother. It is said, however, that the marriages prohibited between kin
in this statute are not declared incestuous. What marriages are incestuous ? “ When the parties to an act or
series of acts of unlawful carnal intercourse are related to each other within the degrees of consanguinity or
affinity wherein marriage is prohibited by law, their offense is called incest.” Bishop on Stat. Crimes, 727.
To the same effect will be found the definition given in Bouvier’s and Burrill’s Law Dictionary. The word
“ incestuous “is an adjective and qualifies a noun, whether it stands for a person or thing, and attaches to it
the character of incest. An incestuous person is one guilty of incest. An incestuous cohabitation or sexual
intercourse is a cohabitation or sexual intercourse between persons related within the degrees of
consanguinity within which marriage is prohibited. So the term “ incestuous “is a proper term to apply to a
marriage which is contracted between parties related to each other in the degrees within which such
contracts are prohibited by law. In 2 Kent’s Com., marginal pages 83-4, the phrase “ incestuous marriage”
is used in treating of marriages contracted by parties related to each other within certain degrees of
consanguinity. See, also, Commonwealth v. Lake, 113 66 TERRITORY V. CORBETT. [A-ug- T]., Mass.
458. When a statute declares such a marriage void or prohibits the same, it is incestuous. To hold otherwise
would be as absurd as it would be to hold that because the statute did not in express words declare any acts
criminal, that therefore no acts were criminal. There was no error then in overruling the demurrer. It is
urged that the court erred in not awarding the defendant a change of venue. The application for this was
supported by the affidavits of Kirkwood, one of the attorneys for the defendant, and of the defendant
himself. The affidavit of Kirkwood is particular in regard to the excitement and prejudice in Virginia City,
the county seat of Madison county. An affidavit to this effect is not sufficient. People v. Baker, 1 Cal. 403.
This affidavit further states that “ owing to the flaming reports heretofore printed in the newspapers,” he
finds a deep-rooted prejudice against the defendant in various portions of the county. This does not show
that there is a prejudice against the defendant in the whole county or any great portion of it. Perhaps
nothing so much militates against the affidavit of Kirkwood, and tends so thoroughly to destroy its force, as
the fact that he attributes to public prejudice against his client the searching of himself by the officers in
charge of defendant, that they might learn that he was not carrying to his client the means of escape. No
such inference can be drawn from that. The defendant asserts in his affidavit that the prejudice created in
the minds of the people against him was caused by certain articles published in The Madisonian, a
newspaper published in Virginia City. With us, the newspaper press is free and every newspaper publishes
any facts made public concerning the commission of any crime in the community where it exists, and every
other paper in the Territory copies the same. It is not believed that the citizens of any community in this
Territory have a pre-eminence over those of another as the readers of newspapers. Nor is it thought that any
newspaper in this Territory has much greater influence in the county where it is published than in other
portions of the Territory where it circulates. If there is prejudice in one county on account of newspaper
articles alone, unaccompanied with any other local influence, 1 think it would be difficult to find any other
county in the Territory where the same prejudice had not been created. The change must be made to some
county, it at all, where the cause complained of does not exist. Codified Statutes, p. 224. 225. The court is
not bound to believe what is improbable. The defendant does not offer to show that in fact the jury was
prejudiced against him, or that it acted unfairly, and there seems to have been no great difficulty in
procuring an unprejudiced jury. From appellant’ s brief it appears that not more than thirty-six persons were
called before a jury, which satisfied the requirements of the law were found. This was not an unusual
number in so important a case. The affidavits did not show that there was any prejudice against defendant
save on account of the charge in this case. It is usually considered a privilege for a person charged with a
crime to be tried in the county where he has resided for years, and a change of venue should not be granted
to such a person without the most satisfactory showing of prejudice against him. I find no abuse of
discretion in refusing this application. There is no validity in the point that Sarah Parker ought not to have
been allowed to testify until the district attorney had complied with the common -law usage of asking the
permission of the court to dismiss the charge against her, and the privilege of introducing her. Under our
statutes (see Codified Statutes, p. 271, 14), an accomplice may be called upon to testify against his
accomplice whether he gives his consent or not. He is treated as any other witness save that his credibility
may be affected by the fact that he is charged with the same offense as the person against whom he
testifies. It is very evident that the above statute does not contemplate that the charge against an accomplice
who is called as a witness should be dismissed, or that any permission of the court is required to introduce
him. The defendant complains because the court below would not hear any argument upon the right to
introduce this witness. When a court is satisfied upon a point, it is certainly not error to refuse to allow its
time to be consumed with an argument [VOL. Ill 8 58 TERRITORY v. CORBETT. [Aug. T.,] thereon.
This is the first time i have ever heard such a point having been seriously presented to an appellate court as
a ground of error. The defendant makes objection to several instructions given by the court on the ground
that there is no law in this territory declaring any marriage incestuous and void, and because there is no
such crime as fornication known to the laws. These questions have been fully considered in determining the
validity of the indictment, and will not again be reviewed. There is an objection to one of the instructions
because the phrase “ alleged accomplice” is used in regard to the witness, Sarah Parker, for the reason that
it might mislead the jury. That is, I suppose, by causing them to think there might be some doubt as to her
being an accomplice. Undoubtedly the reason that the court used such guarded language was because he
desired to leave the question to the jury as to whether or not she was an accomplice. Had he stated
positively as a fact that she was an accomplice, then inferentially he would have declared as a fact that the
defendant was guilty. There certainly can be no error in a court using such guarded language, when such
considerations are presented. The court properly refused to give instruction number seven, specified in
appellant’s brief, for the reason that it was not law. It was based upon the assumption that all that was
necessary to constitute the guilt of the defendant and to make Sarah Parker an accomplice was carnal
intercourse between them. It left out of view the further facts the jury were compelled to find, that
defendant and witness were related within the degrees of consanguinity in which marriage is declared
incestuous and void, and knew this fact. Perhaps no one would have complained more of such an
instruction, had it been given, than the counsel for the defense. I think also the point sought to be presented
by this instruction had been fully covered by other instructions. It is urged that the court erred in overruling
defendant’s motion for a new trial for the reason that the witness, Sarah Parker, was not corroborated on
some of the material issues in the case. I have examined the testimony presented in the record, and find that
she was corroborated on every material issue in the case, save the one of the defendant being an unmar1877.] TERRITORY v, CORBETT. 59 ried man, if this can be considered a material issue. as to sexual
Intercourse she was corroborated by Doctors Yager and Smith. as to the fact of the defendant and witness
being half-brother and sister, and that they knew this, by Parker and Yager and a letter of defendants. If the
allegation of defendant being unmarried was a material one, the defendant would have no right to a new
trial, because the witness was not corroborated on this point, for the rule of law is that an accomplice need
not be corroborated on every item of testimony given by the same. 1 Greenl. on Ev., 381, and note 1 ; 1
Phill. on Ev., marg. p. 114. The evidence of Doctors Yager and Smith was properly admitted. The statutes
of this Territory provide that a physician shall not testify without the consent of the patient as to any
information he may have acquired while attending the same. Codified Statutes, p. 125, 450. Sarah Parker
and not John Corbett was the patient, and she gave her consent, and that was sufficient to make them
competent witnesses. Physicians were not, exempted at common law from disclosing confidential
communications, confided to them in their professional character. Greenl. on Ev., 247 ; Phill. on Ev., marg.
p. 136. We are therefore confined strictly to the words of the statute in considering this point, and that, we
have seen, limits the confidential communications to those made by the patient to the physician in his
professional character, and were necessary to enable him to prescribe for the same. The communications
made to Doctors Yager and Smith by the defendant do not come within the exemption specified in the
statutes. The admission of the evidence of Parker was proper, although his name was not indorsed on the
back of the indictment. Codified Statutes, p. 214, 157. The application for a new trial should be made
before judgment is entered. Codified Statutes, p. 243, 354. But there is nothing in the statute that requires
that this motion should be heard before judgment, and I think the usual practice of the courts of this
Territory has been to hear it afterward. Certainly the defendant would lose no right by such a practice. The
motion in arrest of judgment in its very nature, and according to the statutes of the Territory, and the
practice at common law 60 MISSOULA COUNTY v. EDWARDS. [Aug. TM should be made and heard
before the entry of judgment. Codified Statutes, p. 243, 356 ; Archbold’s Crim. PI. & Pr. 671-2 and note.
From the record it clearly appears that the motion in arrest of judgment was made after the same was
entered. The motion was not then made in time. 1 Archbold’s Crim. PI. & Pr. 672 ; Bishop on Crim. Proc.,
1107. If the motion was not made in time, there was no error in the court disregarding it or overruling it. It
may also be observed that no point was presented in the motion in arrest of judgment that was not presented
on the demurrer to the indictment, and considered by that court and this. Hence the defendant was in no
manner prejudiced by the action of the court in this matter. I have considered many points in this case at
considerable length that would not otherwise have been so treated had not the same been presented with
much sincerity and earnestness by the counsel for defendant, and had not this been a criminal action in
which the liberty of a man was involved. The judgment of the court below is affirmed with costs. Judgment
affirmed.
1879 -Revised Statutes of Montana- THIRD division judicial; grand jury
[short summary of 1879 statutory grand jury: 1879 RCM criminal statutes Sec 117 PDF 330/1047]:
Grand jury (16-person) indictment for any offense.
1879 Section 123 [PDF 331/1047]. challenge of a grand jury, the court shall discharge the same, and order
a venire to issue for a new grand jury in accordance with law. [“Venire”-‘to come’- sheriff summons the
grand jury. See Webster 1928 ‘venire’ and ‘jury’].
Section 127 [PDF 331/1047] The grand jury being empannelled and sworn, shall be charged by the court.
In doing so, the court shall give them such information as it may deem proper as to the nature of their
duties, and any charges for public offenses returned to the court, or likely to come before the grand jury; the
court need not, however, charge them respecting violations of any particular statute, except when
specifically required by law.] n
Full text of 1879 grand jury:
SEC. 117. The grand juries shall consist of sixteen persons, one of whom shall be appointed foreman by the
court. NOTE—Act Mar 7th. 1873.
SEC. 118. A challenge may be interposed to the grand jury before the same is sworn, by either the
Territory, or by any defendant who has been held to answer for any offence. The challenge may be to the
panel, or to an individual Juror, for any of the following causes men-tioned in the next section.
SEC. 119. The challenge to the panel may be for the cause that the same was not drawn in accordance with
the essential provisions of the law of this Territory; such challenge must specify wherein the drawing did
not comply with its requirements.
SEC. 120. The challenge to an individual grand Juror may be inter-posed, for one or more of the following
causes:
First. That the juror is a minor.
Second. That he is an alien.
Third. That he is insane.
Fourth. That he is the prosecutor on the charge against the defendant.
Fifth. That he is a witness on the part of the prosecution, and has been served with process, or is bound by a
recognizance äs such.
SEC. 121. When a party has been held to answer for an offence, and is in custody of an officer, it shall be
the duty of the judge presid-ing, before the grand jury is sworn, to direct the sheriff of the county to bring
such person into court, and there notify him of his rights in relation to the challenging of the jury, and, if
necessary, appoint counsel for him. If such person then fails to challenge the grand jury, or any member
thereof, he shall be deemed to have waived all objec-tions to the same.
SEC. 122. If any person shall be held to answer for any offeuce, and has been admitted to bail, it shall be
his duty to appear in court at the time the grand jury is called, and upon the court advising all persons who
have been held to appear, and nave been admitted to bail, to appear and make known their cause of
challenge, if they have any,
—20
306
GRAND JURIES AND THEIR PROCEEDINGS.
against the grand jury; if he fail to interpose any challenge, either to the panel of the jury, or to any
individual Juror, he shall be deemed to have waived the same.
SEC. 123. If a challenge is allowed to the panel of the grand jury, the court shall discharge the same, and
order a venire to issue for a new grand jury in accordance with law.
SEC. 124. If a challenge is allowed to an individual Juror for the first, second or third causes, such person
shall be excused from the jury, and if there be not enough Jurors to complete the panel left, the court shall
order a venire to issue to complete the same.
SEC. 125. When a challenge is allowed to any Juror for either the fourth or fifth causes therefor, the court
shall charge the Juror that he must not act äs a grand Juror in any manner in the investigation of the eharge
against the person challenging; and that any violation of this order will be considered a contempt of court.
SEC. 126. When the panel of the grand jury is completed. the following oath or affirmation, in substance,
shall be administered to them : “You and each of you do solemnly swear (or affirm) that you will diligently inquire into, and true presentment make, of all public offences against the laws of this Territory,
committed or triable in this county, of which you have or can obtain legal evidence. You will present no
one through hatred, malice, or ill-will, nor leave any unpresented through fear, favor, or affection, or for
any reward, or the promise or hope thereof; but in all your presentments you will present the truth, the
whole truth, and nothing but the truth, according to the best of your skill and understanding, so help you
God.”
SEC. 127. The grand jury being empannelled and sworn, shall be charged by the court. In doing so, the
court shall give them such Information äs it may deem proper äs to the nature of their duties, and any
charges for public offences returned to the court, or likely to come before the grand jury; the couirt need
not, however, charge them respecting violations of any particular Statute, except when specially required
by law.
SEC. 128. Members of the grand jury may be required by any court to testify whether the testimony of a
witness, examined before such grand jury, is consistent with or different from the answers given by such
witness before such court; and they may also be required to dis-close the testimony given before them by
any peraon upon a complamt against such person for perjury, of upon his trial for such offence.
SEC. 129. No member of the grand jury shall be compelled or allowed to testify or disclose in what manner
he or any other member of the grand jury voted on any question before them; or what opinions were
expressed by any juror in relation to any such question.
SEC. 130. No grand Juror shall disclose any evidence given before the grand jury, nor the name of any
witness who appeared before them, except when lawfully required to testify äs a witness in relation thereto;
nor shall he disclose the fact of any indictment having been found against any person for a felony, not in
actual confinement, until the defendant shall have been arrested thereon. Any Juror violating the provisions
of this section shall be deemed guilty of a misdemeanor, and upon conviction thereof, may be fined in any
sum, not exceeding five hundred dollars, to which may be added imprisonment not exceed-ing six months.
307 THIRD DIVISION—CRIMINAL PRACTICE ACT. 307
SEC. 131. In charging grand juries, the court shall apprise them of the last three sections in relation to
disclosures, and in what case and under what circumstances any disclosures may or may not be made.
SEC. 132. The foreman of every grand jury, from the time of his appointment to his discharge, shall be
authorized to administer any oath, declaration, or affirmation, in the manner prescribed by law, to any
witness who shall appear before such grand jury for the purpose of giving evidence of any matter
cognizable by them.
SEC. 133. Every grand jury may appoint one of their number to be clerk thereof, to preserve minutes of
their proceedings, and of the evidence given before them; which minutes shall be given to the attorney
prosecuting in the county, when so directed by the grand jury.
SEC. 134. Whenever required by any grand jury, it shall be the duty of the attorney prosecuting in the
county, to attend them for the purpose of examining witnesses in their presence or giving them advice upon
any legal matter.
SEC. 135. Such attorney shall be allowed at all times to appear before the grand jury, on his request, for the
purpose of giving Information relative to any matter cognizable by them, when they or he shall deem it
necessary, but no such attorney, or any other officer or person except the grand Jurors, shall be permitted to
be present during the expression of their opinions, or the giving their votes, on any matter before them.
SEC. 136. Whenever required by any grand jury, the foreman thereof, or the attorney prosecuting, the clerk
of the court in which such jury is empannelled shall issue subpoenas and other processes to. bring witnesses
to testify before such grand jury.
SEC. 137. If any witness duly summoned to appear and testify before a grand jury, shall fail or refuse to
obey, the court shall cause compulsory process to be issued to enforce his attendance, and may punish the
delinquent in the same manner and upon like proceedings äs provided by law for disobedience of a
subpoena in other cases.
SEC. 138. If any witness appearing before a grand jury shall refuse to testify, or answer interrogatories in
the course of his examination, the fact shall be communicated to the court, in writing, in which tbe question
refused to be answered shall be stated, and the court shall thereupon determine whether the-witness is
bound to answer or not, and the grand jury shall be immediately informed of the decision.
SEC. 139. If the court determine that the witness is bound to answer, and he persist in his refusal to testify,
he shall be brought before the court, who shall proceed therein in the same manner äs if the witness had
been interrogated and refused to answer in open court.
SEC. 140. If any such witness shall be committed for a contempt, on account of his refusal to testify, and
shall persist in such refusal, until the grand jury is dismissed, or until the expiration of his imprisonment, he
shall not be discharged from custody before the meeting of the next grand jury, when he shall be again
brought before said grand jury, and if he fail or refuse again to testify, he shall be recommitted.
SEC. 141. If any offence be discovered or committed during the sitting of any court, after the grand jury
attending such court shall be discharged, or if the grand jury empannelled is not competent äs
~
308
GRAND JURIES AND THEIR PROCEEDINGS.
such to investigate the Charge against any person held to answer for the offence, such court may, in its
discretion, by an order, to be entered on its minutes, direct the clerk of the court to issue a venire to the
sheriff, commanding him to summon another grand jury.
SEC. 142. The sheriff shall, accordingly, forthwith summon such grand jury, from the inhabitants of the
county qualified to serve äs grand jurors, who shall be returned and sworn, and shall proceed in the same
manner in all respects äs provided by law in respect to other grand juries.
SEC. 148. The grand jury has the power, and it is their duty, to inquire into all public offences committed
or triable within the jurisdiction of this court, and to present them to the court by indictment.
SEC. 144. An indictment is an accusation in writing, presented by the grand jury to a competent court,
charging the person with a public offence.
SEC. 145. In the investigation of any charge for the purpose of finding an indictment, the grand jury shall
receive none but legal evidence.
SEC. 146. The grand jury is not bound to hear evidence for the defendant; but it is their duty to weigh all
the evidence submitted to them, and when they have reason to believe that other evidence within their reach
will explain away the charge, they should order such evidence to be produced, and for that purpose may
require process to be issued for such witnesses.
SEC. 147. It shall be the duty of the grand jury to find an indictment when all the evidence before them is
such äs, in their judgment, would warrant a trial jury in a conviction, if the same remained unexplained or
uncontradicted.
SEC. 148. If a member of a grand jury has reason to believe that a public offence has been committed
within the jurisdiction of the court, he must declare the same to his fellow jurors, who shall there-upon
investigate the same.
SEC. 149. The grand jury must inquire into the case of every per-son imprisoned in the county jail and not
indicted, into the condition and management of the public prisons within the county, and into willful and
corrupt misconduct in Office of public officers, of every description, within the county; and, for such
purpose, they are entitled to free access, at all reasonable times, to all public buildings, public offices, and
public records.
SEC. 150. No indictment can be found without the concurrence of at least twelve grand Jurors; where so
found, and not otherwise, the foreman of the grand jury shall endorse it thus: “A true bill.” —— ——; “
foreman.”
SEC. 151. “When there is not a concurrence of twelve grand Jurors in finding an indictment, the foreman
shall certify, under his band, that no true bill was found.
SEC. 152. Indictments found by a grand jury shall be presented by their foreman, in their presence, to the
court, and shall be filed and remain äs records of such court.
SEC. 153. No indictment for any trespass against the person or property of another, not amounting to a
felony, or for the first offence of petit larceny, shall be preferred, unless the name of a prosecutor is
endorsed thereon, except when the same is preferred upon the information or knowledge of two or more
grand Jurors, or on the information of some public officer in the necessary discharge of his duty, in which
case a Statement of the fact shall be made at the end of the indictment, and signed by the foreman of the
grand jury.
SEC. 154. The name of the prosecutor’ shall be endorsed äs such, by himself, or, when his name has been
certified äs prosecutor, with the examination äs provided by law, the endorsement may be made by the
attorney prosecuting; but no indictment shall be quashed for want of such endorsement, S the same shall be
made before the motion to quash is disposed of.
SEC. 155. It shall not be necessary for any grand jury to present any presentment prior to the presentation
of the indictment.
SEC. 156. Each indictment must be signed by the attorney prosecuting; and when the grand jury return any
indictment into court, the judge must examine it; and if the foreman has neglected to endorse it “A true
bül,” with his name signed thereto, or if the attorney prosecuting has neglected to sign bis name, the court
must cause the foreman to endorse, or the attorney prosecuting to sign it, äs the case may require, in the
presence of the grand jury.
SEC. 157. When an indictment is presented by the grand jury, the names of all material witnesses must be
endorsed upon the indictment; but other witnesses may afterwards be subpoenaed by the Territory; but
unless the names of such witnesses be endorsed on the indictment, no continuance shall be granted to the
Territory on account of the absence of any witness whose name is not endorsed thereon.
SEC. 158. Immediately after an indictment has been filed with the clerk of the court, when the defendant
has not been held to answer any offence in said court, it shall be the duty of such clerk to issue to the sheriff
of said county a warrant for the arrest of such defendant, commanding him to bring the defendant forthwith
before the court, unless otherwise ordered.
SEC. 159. If the court deem it proper, and the offence is bailable, he may endorse on the back of the
warrant the amount in which the defendant is to be held, or admitted to bail, pending the action; or he may
order the clerk to enter the amount in which the defendant shall be admitted to bail in the minutes of the
court, and then the clerk shall endorse the amount on the warrant of arrest.
SEC. 160. When the court or judge has failed to fix the amount of bail, and the judge is absent from the
county, the clerk of the court may fix the same.
ARTICLE VIII.
THE INDICTMENT.
SEC. 161. All criminal prosecutions must be in the name of the Territory of Montana.
SEC. 162. The forms of pleading in criminal actions in the district court, and the rules by which the
sufficiency of pleading is to be determined, are those herein prescribed.
SEC. 163. The only pleading on the part of the Territory is the indictment.
SEC. 164. The indictment must contain:
First. The title of the action specifying the name of the court to which the indictment is presented, and the
names of the parties.
Second. A statement of the facts constituting the offence, in plain and concise language, without
unnecessary repetition.
SEC. 165. The indictment must be direct and certain, äs it regards the party and the offence charged.
SEC. 166. The precise time of the commission of an offence need not be stated in the indictment, but it is
sufficient, if it is supp to have been before the finding of the indictment and within the Statute of
limitations, except where time 13 an indispensable ingredient of the offence.
SEC. 167. In an indictment for an offence committed in relation to property, it is sufficient to state the
name of any one, o* names of several joint owners.
SEC. 168. The words used in an indictment must be construed in their usual acceptation in common
language, except words and phrases defined by law, which are to be construed according to their legal
meaning.
.,
SEC. 169. Words used in the Statute to define a public offence need not be strictly pursued, but other words
conveying the same meaning may be used.
SEC. 170. The indictment shall be sufficient if it can be understood therefrom;
First. That the indictment was found by the grand jury of the county in which the court is held.
Second. That the defendant is named or described in an. indictment äs a person whose name is unknown to
the grand jurors.
Third. That the offence was committed within the jurisdiction of the court, or is triable therein.
Fourth. That the offence charged is clearly set forth in plain and concise language, without repetition; and
Fifth. That the offence charged is stated with such a degree of certainty that the court may pronounce
judgment, upon conviction, according to the right of the case.
SEC. 171. No indictment shall be quashed or set aside for any of the following defects:
First. For a mistake in the name of the court or county, or in the title thereof.
Second. For the want of an allegation of the time and place of any material fact, when the venue and time
have once been stated in the indictment.
Third. That the dates and numbers are represented by figures.
Fourth. For an omission of any of the following allegations, viz.: With force and arms, contrary tp the form
of the Statute, or against the peace and dignity of the Territory of Montana.
Fifth. For an omission to allege that the grand jurors were im-panelled, sworn, or charged.
Sixth. For any surplusage or repugnant allegation, when there is sufficient matter alleged to indicate the
crime and person charged; nor,
Seventh. For any other defect or imperfection which does not tend to the prejudice of the substantial rights
of the defendant, upon the merits.
SEC. 172. Neither presumptions of law, nor matters of which judicial notice is taken, need be stated in the
indictment.
SEC. 173. In pleading a judgment or other determination of a court or officer of special jurisdiction, it is
sufficient to allege, generally, that the judgment or determination was duly made, or had before such court
or officer; but the facts constituting the jurisdiction must be established on the trial.
SEC. 174. In pleading a private statute, or a right derived therefrom, it is sufficient to refer to the Statute by
its title, and the day of its approval; and the court shall take notice thereof.
~
312
THE INDICTMENT.
SEC. 175. Upon an indictment against several defendants, any one or more may be convicted or acquitted.
SEC. 176. Any person who counsels, aids, or abets in the commission of any offence, may be charged,
tried, and convicted, in the same manner äs if he were a principal.
SEC. 177. An accessory after the fact, to the commission of a felony, may be indicted, tried and punished;
though the principal be neither indicted nor tried.
SEC. 178. Every indictment must be recorded by the clerk, during the term at which the same is found, in a
book to be kept for that purpose. The judge must compare the record with the original indictments, and
certify the correctness thereof. In case the original indictment be lost or destroyed, the defendant may be
tried upon a copy taken from the record, and certified by the clerk, during the term at which the same is
found, in a book to be kept for that purpose. The judge must compare the record with the original
indictments, and certify the correctness thereof. In case the original indictment be lost or destroyed, the
defendant may be tried upon a copy taken from the record, and certified by the clerk, without any delay
from that cause.
SEC. 179. In case of the loss or destruction of an indictment, the attorney prosecuting may file in court
another indictment, similar to the original, certified to by the clerk of the court; and the prosecution shall
proceed, and the trial be had without any delay from, that cause.
SEC. 180. Indictments against persons not in custody, or who have not given bail, and the records of such
indictments shall be in the custody of the clerk, o an not be inspected by any person, except the court, the
clerk, and his deputy, and the attorney prosecuting, until after the arrest of the defendant.
SEC. 181. No grand Juror, attorney prosecuting, clerk, judge, or other officer shall disclose the fact that an
indictment is found, until the defendant has beer, arrested, except any disclosure that may be necessarily
incident to the issue and Service of a warrant to arrest the defendant. A violation of this and the next
preceding section may be punished äs a misdemeanor by fine or imprisonment, or both.
SEC. 182. Upon an indictment for an offence consisting of different degrees, the jury may find the
defendant not guilty of the degree charged in the indictment, and guilty of any degree inferior thereto, or of
an attempt to commit the offence.
SEC. 183. In all other cases, the defendant may be found guilty of an offence; the commission of which is
necessarily included in that with which he is charged in the indictment.
SEC. 184. Counts for murder in the first and second degrees, and for manslaughter, may be joined in the
same indictment, and on the trial the defendant may be convicted of either offence.
SEC. 185. When any offence shall be committed upon, or in relation to, any personal property l>t!longing
to several partners, or owners, the indictment for such offence shall be deemed sufficient, if it allege such
property to belong t n any one or more of such partners, or owners, without. naming them all.
SEC. 186. An indictment against any accessory to any felony may be found in any county where the
offence of such accessory shall have been committed, notwithstanding the principal offence may have been
committed in another county, and the like proceeding shall be had therein in all respects, äs if the principal
offence had been committed in the same county.
SEC, 187. When a defendant is indicted by a fictitious or erroneous name, and in any stage of the
proceedings his true name is discovered, it shall be inserted in the subsequent proceedings, referring to the
fact of his being indicted by the name given in the indictment.
SEC. 188. The indictment shall Charge but one offence; but it may set forth such offence in different
counts.
SEC. 189. When an offence involves the commission, or an attempt to commit a private injury, and ia
described with sufficient certainty in other respects to identify the act, an erroneous allegation äs to the person injured, or intended to be injured, shall not be deemed material.
SEC. 190. An indictment for libel need not set forth any extrinsic facts, for the purpose of showing the
application to the party libeled of the defamatory matter on which the indictment is founded, but it shall be
sufficient to state, generally, that the same was published concerning him, and the fact that it was so
published must be established on the trial.
SEC. 191. When an instrument, which is the subject of an indictment for forgery, has been destroyed or
withheld by the act or procure-ment of the defendant, and the fact of such destruction, or withholding, is
alleged in the indictment, and established on the trial, the description of the instrument shall be deemed
immaterial.
SEC. 192. In an indictment for perjury, or subordination of perjury, it shall be sufficient to set forth the
substance of the controversy or matter in respect to which the offence was committed, and in what court, or
before whom, the oath alleged to be false was taken ; and that the court or person before whom it was taken
had authority to administer the same, with proper allegations of the falsity of the matter on which the
perjury ia assigned; but the indictment need not set forth the pleadings, record or proceedings with which
the oath is commenced, nor the commission or the authority of the court or person before whom the perjury
was committed.
[End of grand jury section of 1879 Montana Code]
[1880] 454 TERRITORY v. INGERSOLL. [Jan. Term,1880]
TERRITORY, appellant, v. INGERSOLL, respondent.
RIGHT OF CHALLENGE TO A GRAND JURY. The right of challenge to the grand jury is a substantial
right provided by statute for every one held to answer for an offense which is submitted to the investigation
of such jury, and where, from any cause, the accused is deprived of this right without its being waived,
expressly or by implication, it is good cause for setting aside an indictment. J. A. JOHNSTON, district
attorney, and E. W. & J. K. TOOLE, for appellant.
The statute provides that no indictment shall be quashed for any defect which does not prejudice the
substantial rights of the accused upon the merits. Cod. Sts., 1872, 216, 171. Motions of this character are
not favored in law. Bishop’s Crini. Pr., 452-744 ; People v. Jewett, 3 Wend. 314-321. The rights of the
defendant are fully protected by other provisions of the statute. Cod. Sts., 1872, 221, 206 ; People v.
Beatty, 14 Cal. 567. The motion should show affirmatively the existence of some cause for challenge
provided by statute. 1 WTiart., 472-3 ; Cod. Sts., 1872, 221, 207. The complaint on which defendant was
held to answer at the November term of the district court was fatally defective in not alleging the date of
the commission of the offense. Com. v. Hutton, 5 Gray, 89-91 ; 1 Whart. 264. He stood in the position of
an indifferent third person.
SANDERS & CDLLEN and CHUMASERO & CHADWICK, for respondent.
The right of challenge of a grand jury is a substantial right. People v. Romero, 18 Cal. 94.
It must be exercised or waived. It has not been exercised or expressly waived. Waiver by implication can
take place only when intended, or where the act or omission ought, in equity and justice, to estop the party
from insisting on his right. 58 Penn. St. 444.
GALBRAITH, J. This is an appeal from an order by the court below, setting aside the indictment.
The motion to set aside the indictment was made upon several grounds, the principal of which was that the
defendant, by the act of the Territory, had not been afforded an opportunity to exercise his right of
challenge, as provided by law. Upon this ground the motion was sustained. From this action of the court the
appeal is taken. It appears from the record in this case, that during the March term of the district court, the
defendant was arrested and brought before the probate judge, upon the charge of grand larceny, and was
held over by recognizance for his appearance at the next, being the November term of the district court, and
was thereupon discharged from arrest. At this time the regular grand jury for the March term had been
discharged. After said discharge and before the final adjournment of the court at this term, the district
attorney appeared and moved the court that by virtue of section 141 of the Criminal Practice Act, the court
should make an order directing the clerk to issue a venire to the sheriff, commanding him to summon
another grand jury, forthwith to appear at said term, as a contingency contemplated by said section of the
statute had arisen. In accordance with this motion the order was made, and said grand jury summoned and
impaneled accordingly. Before this grand jury was sworn, the court made the proclamation required by law,
notifying all persons held to appear and admitted to bail, to answer for any offense, to then appear and
make known their cause of challenge to the jury, or in default thereof, their right would be deemed waived.
No one appearing to exercise the right of challenge, the grand jury was duly sworn, entered upon the
discharge of its duty and afterward, and during said March term, returned an indictment against the
defendant. The above motion was then made to set aside this indictment, and for the foregoing reasons was
sustained. These reasons more fully set forth were, that defendant having entered into an undertaking
before the probate court to appear to answer any indictment which might be presented against him,
456 TERRITORY v. INGERSOLL. [Jan. T.]not at said March term, but at the next, being the November
term of said court, and therefore not having been required to be present in court at said March term, and
having not, in fact, been present, and not having heard the above proclamation, and having had no actual
notice of the impaneling of the grand jury, was therefore by the act of the Territory deprived of his right of
challenge. All of the foregoing facts appear in the record. The appellant claims that in deciding this case,
we are compelled to choose either one or the other horn of the dilemma, that the defendant, in relation to
the March term of the district court, was either in the condition of one bound over to appear at that term, or
of one subject to indictment, but not held over for his appearance at any term. In the former case the
defendant would have been presumed to have had notice of the impaneling of the said grand jury, and was
bound to appear and challenge, if he desired to exercise that right. In the other case his only remedy, where
the facts warranted such action, would be, that after the finding of the indictment, he might move to set it
aside as is provided in section 206 of the Criminal Practice Act. Although we believe that the defendant, by
the terms of section 206 of the Criminal Practice Act, and by the provisions of sections 118, 119, 120, of
said act, was included in that class of persons, who are held to answer before indictment, yet we do not
think that this inquiry is material to the question to be decided in this case. The main question is, was or
was not the defendant, by the act of the Territory, without notice to him, and without his knowledge,
deprived of, or did he by such act lose a substantial right ? There can be no doubt that the defendant’s
privilege of exercising his rights of challenge, either to the panel or to the polls of the grand jury, was a
substantial right. It is the general American doctrine that where a defendant is deprived of this right of
challenge, where it exists, the indictment is worthless, and a conviction thereon would be invalid. The
statute provides for the exercise of this right by the defendant, to the grand jury, and it is as much his
privilege to insist upon its exercise, in [1880.] TERRITORY v. INGERSOLL. 457
respect to this body, as afterward upon the trial to challenge the petit jury or the members thereof. We can
see no material difference in the character of the right ; or its importance to the defendant, between the right
of challenge to the grand or the petit jury. Already the supreme court of this Territory has held that the
deprivation of the defendant, of his right to peremptorily challenge the members of the petit jury, was cause
for the reversal of a verdict of “guilty.” United States v. Upham, 2 Mon. 113. The invoking of the
provisions of section 206 of the Criminal Practice Act is in effect an exercise of the right of challenge, and
said section is a virtual declaration by the law-making power, of its character as a substantial right. This
section provides that an indictment may be set aside for reasons, which by virtue of sections 118, 119, 120
of the Criminal Practice Act, are the subject of challenge to the grand jury, either to the panel or the polls.
Certainly the right to exercise a privilege, which the statute itself declares to be ground for setting aside the
indictment, when the defendant, by not being held to answer, and therefore, not having had an opportunity
to exercise the same, has been deprived thereof, is a substantial right. We are therefore of the opinion that
the right of challenge to the grand jury was a substantial right, of which the defendant could not be
deprived except by his own act, amounting to an express or implied waiver thereof. People v. Romero, 18
Cal. 94. Now did the Territory by its act, as shown by the record, deprive, or cause the defendant to lose
this right ? The undertaking by the defendant in the probate court was in effect an agreement that he would
appear at the November term of the court and answer any indictment presented against him at that term, or
he and his sureties would pay to the Territory the amount named therein. It cannot be successfully argued
that because no time was alleged in the complaint for the commission of the offense, that the proceedings in
the probate court, and with them said undertaking, were therefore void. It was for defendant alone to take
advantage of this defect. By failing so to do, waiving a hearing and giving the undertaking, he waived this
objection. VOL. in 58 468 TERRITORY v. INGERSOLL. [Jan. T.],
The undertaking was sufficient for the accomplishment of its object,
viz. : To compel the appearance of the defendant at the November term, and being in effect an agreement
for that purpose, it operated as a notice to him that at that term he must appear and exercise his right of
challenge to the grand jury which would find the indictment, to answer which this undertaking was
given. Even if the defendant had been held to appear at the March term and the first grand jury therefor had
been discharged without finding an indictment against him, we think it doubtful whether or not an
indictment, found against him by the second or special grand jury, of the impaneling of which he had no
knowledge and no actual notice, would be a valid indictment. Secret tribunals and ex parte proceedings,
especially in criminal matters, are repugnant to the genius of our institutions. No savor of unfairness should
be permitted to taint. No appearance of secrecy should be permitted to cast the faintest suspicion upon
the pure character of our legal proceedings, and especially those whose province it is to aid in the
determination of questions between government and citizen, where his good name, his liberty, and perhaps
his life may be involved. In this case the defendant had no more opportunity to exercise his right of
challenge to the grand jury than if he had not been held to answer at all. And having been in fact previously
held to answer, was also by the very terms of section 206 of the Criminal Practice Act (which by the terms
thereof is only applicable in cases where the defendant has not been held to answer before indictment),
effectually prevented from exercising the remedy provided by that section. We think the act of the
Territory, as shown by the record, prevented the exercise of the right of challenge by the defendant as
effectually as if he had appeared before the grandjury, and had been expressly prohibited from exercising
this right. The defendant was in fact held over to answer before indictment, and is therefore unable to avail
himself of the provisions of section 206 of the Criminal Practice Act. He was also, by the act of the
Territory, prevented from exercising his right of challengeto the grand jury as provided by sections 118,
119 and 120 1880.] YANTILBURG v. BLACK. 459 of said act. He has therefore been entirely prevented
from exercising his right of challenge to the grand jury as provided by law, which in our view is a
substantial right. Therefore the order setting aside the indictment is affirmed with costs. Judgment affirmed.
[end of Ingersoll case]
1884 Constitution of Montana convention; bill of rights
Sec. 16. That in criminal prosecutions, the accused shall have the right to appear and defend in person and
by counsel ; to demand the nature and cause of the accusation ; to meet the witnesses against him face to
face ; to have process to compel the attendance of witnesses in his behalf, and a speedy public trial by an
impartial jury of the county or district in which the offense is alleged to have been committed.
Sec. 17. That no person shall be imprisoned for the purpose of securing his testimony in any case longer
than may be necessary in order to take his deposition. If he can give security, he shall be discharged ; if he
can not give security, his deposition shall be taken by some Judge of the Supreme, district, or county
court, at the earliest time he can attend, at some convenient place appointed by him for that purpose, of
which time and place the accused and the attorney prosecuting for the people shall have reasonable notice.
The accused shall have the right to appear in person and by counsel. If he have no counsel, the judge shall
assign him one in that behalf only. On the completion of such examination, the witness shall be discharged
on his own recognizance, entered into before said judge, but such deposition shall not be used, if in the
opinion of the court the personal at-tendance of the witness might be procured by the prosecution, or is
procured by the accused. No exception shall be taken to such deposition as to matters of form.
Sec. 18. That no person shall be compelled to testify against himself in a criminal case, nor shall any person
be twice put in jeopardy for the same offense.
Sec. 19. That all persons shall be bailable by sufficient sureties, except for capital offenses when the proof
is evident or the presumption great.
Sec. 20. That excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.
Sec. 21. That the privilege of the writ of habeas corpus shall never, be suspended, unless in case of
rebellion or invasion the public safety require it.
Sec. 22. That the military shall always be in strict subordination to the civil power ; that no soldier shall, in
time of peace, be quartered in any house without the consent of the owner, nor in time of war, except in the
manner prescribed by law.
Sec. 23. The right of trial by jury shall remain inviolate m criminal cases ; but a jury in civil cases in all
courts, or in criminal cases not of the grade of felony, may consist of less than twelve men, as may be
prescribed by law. And the Legislative Assembly may provide by law that, in civil cases, any number, not
less than two-thirds of a jury, may find a verdict, and that such verdict, when so found, shall betaken and
held to have the same force and effect as if all of such jury concurred therein. Hereafter, a grand jury shall
consist of twelve men, any nine of whom, concurring, may rind an indictment ; Provided, The Legislative
Assembly may change, regulate, or abolish the grand jury system
~
1884 Constitution of Montana. ARTICLE VI. Judicial Department.
Sec. 1. The Judicial powers of the State, as to matters of law and equity, except as in this Constitution
otherwise provided, shall be vested in a Supreme Court, district courts, county courts, justices of the peace,
and such other courts as may be created by law for cities and incorporated towns. But the Legislative
Assembly may provide for the abolition of county courts and the transfer of their probate and other
jurisdiction to the district courts, and in such case may provide that such district courts shall be always open
for the transaction of business, except on legal holidays and non-judicial days.
~
COUNTY COURTS.
Sec 20. There shall be elected in each organized county a county judge, who shall be judge of the county
court of said county, whose term of office shall be two years, except as otherwise provided in this
Constitution; his salaries and duties, except as otherwise provided in this Constitution, shall be as provided
by law ; but nothing in this Constitution shall be construed to prevent the Legislative Assembly from fixing
different salaries of county judges for the several counties of the State.
Sec. 21. There shall be a clerk of the county court in each county. The Legislative Assembly may provide
for the election of such clerk by the people, or it may provide that the duties of such office shall be
performed by some other county officer. The duties of such clerk and his compensation shall be prescribed
by law.
Sec. 22. County courts shall have original jurisdiction within their respective counties in all matters of
probate, settlement of estates of deceased persons, ap-pointment of guardians, conservators, and
‘administrator?, and, settlement of their accounts, and such other civil and criminal jurisdiction as may be
conferred by law : Provided, That such courts shall have no jurisdiction in any case where the debt,
damage, claim, or value of the property involved, shall exceed one thousand dollars, exclusive of interest,
except in cases relating to the estates of deceased or insane
Article 17, 1884 Sec. 9. Whenever this Constitution shall go into effect, the books, records,
papers, and proceedings of the Probate Court in each county, and all causes and matters of administration
and other matters pending therein, shall pass into the jurisdiction and possession of the County Court of the
same county, and the said County Court shall proceed to final decree or judgment, order or other
determination in the said several matters and causes as the said Probate Court might hav done if this
Constitution had not been adopted. And until the election and qualification of the Judges of the County
Courts provided for in this Constitution, the Probate Judges shall act as the Judges of the County Courts
within their respective counties, and the seal of the Probate Court in each county shall be the seal of the
County Court therein until the said court shall have procured a proper seal.
Sec. 10. The terms “Probate Court” or Probate Judge,” whenever occurring ; in the Statutes of Montana
Territory, shall, after this Constitution goes into effect be held to apply to the County Court or County
Judge.
Sec. 11. All territorial, county, and precinct officers, who may be. in office at the time this Constitution
takes effect, whether holding their offices under the authority of the United States, or of the Territory, shall
hold and exercise their respective offices, and perform the duties thereof as prescribed in this Constitution,
until their successors shall be elected and qualified in accordance with the provisions of this Constitution,
and official bonds of all such officers shall continue in full force and effect, as though this Constitution had
not been adopted ; and such officers for their terms of service, under this Constitution, shall receive the
same salaries and compensation as is by this Constitution or by the laws of the Territory
provided for like officers.
Article 18, 1884 (Misc.) Sec.11. If the Legislative Assembly shall at any time abolish county courts, it shall
at the same session provide what number of persons shall comprise the hoard of county commissioners of
the several counties of this State, and the manner of selecting the chairman thereof.
~
Delegate Summary of 1884 constitution: Judicial Department.
The present judicial system, with which all the Territories are inflicted, is inherently and radically wrong
and never did, nor can it, adequately meet the demands of the people. Under our present arrangement, the
Supreme Court is composed of three judges, who are also the judges of the several District Courts. While
sitting as a Supreme Court, the District Judge who tried a case in the court below is called upon to review
his own decision. The manifest injustice of this is at once apparent. It is calculated to, and does beget a lack
of confidence in judicial proceedings, and brings courts into contempt. Honest judges and lawyers are alike
embarrassed in such a dilemma The present system is manifestly wrong again ; by it the people have ho
voice in selecting the judges. They are sent to us from the far off East, probably in deference to the
traditional idea that it was from thence all of the “ wise men” came. Yielding much to precedent in this
respect, we cannot. however, at this late day willingly submit to such a system. The character of our
litigation is such that, however learned in the law our eastern judge may be. lie will rind himself much
embarrassed in his new field. Under our .State government a Supreme Court is established which is
independent and separate, and sits twice in each year. The judges hold their offices for six years, and are
elected by the people.. District Courts are provided with substantially the same jurisdiction as they now
have in our Territory, hour districts are provided, but the Legislature has power to increase the number to
meet the necessities of the people. County Courts are substituted for the present Probate Courts, with
enlarged jurisdiction. Justices of the Peace are provided for. and the right to create Police and Municipal
Courts vested in the Legislature. All Judges are required to have resided in the State or Territory at least
two years prior to their election. This we submit as a whole- some provision. Moderate salaries have been
provided for judicial officers, and yet it is generally conceded that the amounts are sufficient to secure a
high order of talent. The salaries, however, which have been provided are subject to legislative control,
except that they are not to be increased or diminished during the term of any officer. All judicial officers,
except Justices of the Peace, are prohibited from receiving any compensation, except by salary. The great
abuses of the fee system ought not to be permitted to gain any foot-hold in a judiciary system, and the
legislature is properly denied the power to change this.
[end of 1884 constitution]
~
[1887] Territory v Hart 67/683 [ 7 Mont. 42] Murder case; Criminal practice challenge to grand jurors.
Indictment prima facia evidence of the crime (statutes listed). The defendant held back two of his
peremptory challenges [w/o giving a reason] to a grand juror , thereby waving his right to challenge.
68/683 Wade [former C.J. of this court] “monograph on authority of grand jury in 4 Crim Law Magazine”
(several grand jury cases cited). Appellant says the constitution states there is “a jury of peers”;[ respondent
says nope, no way Hose’ ]; Blackstone quote on grand jury 4 Bla Com. 349, 350. Hart states the court
should have allowed him to interrogate the grand jurors, per statute, and cites People v Manahan 32 Cal 68;
People v Jewitt 3 Wend 314; 1 Wharton Am Crim Law 299; 1 Archibald’s Crim Pr. & Pl. 507.
One grand juror was not yet a US citizen, the issue was exhausted in Hart.
Blackstone: The jury by whom defendant was found guilty pro-ceeded without authority, and the verdict
was and is a nullity. Both in theory and practice the administration of justice in this country in criminal
cases is governed by the same ancient rules of procedure which is declared by Blackstone, thus: “ But the
founders of the English law have, with excellent forecast, contrived that no man should be called to answer
to the king for any capital crime, unless upon a preparatory accusation of twelve or more of his fellowsubjects,—the grand jury; and that the truth of every accusation, whether preferred in the shape of
indictment, Information, or appeal, should afterwards be confirmed by the unanimous suffrage of twelve of
his equals and neighbors indifferently chosen, and superior to all suspicion.” 4 Bla. Com. 349, 350.
Hart: The only grounds of challenge to an individual grand juror are those prescribed in the Statute (sec.
120, p. 306, Rev, Stata. Mont.), and that on the ground of corruption in the selection of Jurors, in section
451, page 346. Opinions of the Juror, or bias or prejudice, are not involved in any of the causes there
enumerated. The motion “ to vacate and set aside the indictment is not based upon any of the grounds in
our Statute, and cannot be received in this court. State v. Millain, 3 Nev. 424. The court properly refused to
allow the grand Jurors to be interrogated äs to opinion or bias. This opinion or bias would not be grounds
for challenge. See Statutes above cited, and 3 Nev. 424; Case of John Tucker, 8 Mass. 286; State v. Chavis
and McNeall, 9 Baxt. 197; Kemp v. Statt, 11 Tex. App. 174; 4 Crim. Law Mag. 128; Betts v. State, 66 Ga.
508; 4 Crim. Law Mag. 468, 469; Thompson and Merriam on Juries, 696, 697. If there was any corruption
in selecting the grand jury, challenge on that ground would have been sustained; but the fact of corruption
would have had to affirmatively appear, and corruption and bias are altogether different. The record shows
there was no challenge to an individual Juror. Defendant simply asks certain ques-tions which the court
would not allow to be answered. Having failed to challenge at the proper time, defendant is deemed to have
waived all objections to the grand jury. See. 121, p. 305, Rev. Stata. Mont. The court properly refused to
permit defendant to inquire of the individual grand Jurors whether twelve of their number had voted for the
finding of the indictment. State v. Hamblin, 47 Gönn. 116. There is no law authorizing a grand jury to be
polled, and no practice to that effect. 47 Gönn. 116. A grand Juror cannot be called to impeach tho action of
that body. Bishop’s Criminal Procedure, BCC. 874; People v. Naughton, l Abb. Pr. 431. The simple
statement of a grand Juror could not have been taken against the oaths of the grand jury. There were no
affidavits or proof of any kind offered showing irreg-ularity by the grand jury, and none can be presumed.
The Juror Doniotby was competent. He had declared his intention to become a citizen of the United States,
and therefore was competent under our Statutes.
Justice McCleary: only statutes (Rev Stat 121, 122, div 3 1879). permit defendant to challenge a grand jury,
in 4 areas only, and ‘personal bias’ is not one of those areas. In re Tucker 8 Mass 286.
The trial of Aaron Burr had a similar claim- unopposed.
We have quoted thus largely from the authorities, in order to show that the practice adopted in Montana,
though it may differ from that of Pennsylvania and some other states, accords with that generally prevailing
throughout the Union, and is supported by the great weight of authority.
2. as to the second alleged error presented by the ap-pellant, there is no territorial Statute which explicitly
gives the defendant the right to question the grand jury äs to how many of their number concurred in
finding the indictment. It is provided in the Statutes that “ no indictment can be found without the
concurrence of at least twelve grand Jurors”; and it is enacted in the same section that “ when so found, and
not otherwise, the fore-man of the grand jury shall indorse it thus: ‘ A true bill. ——, Foreman.’” Rev.
Stats. Mont., sec. 150, div. 3. This indorsement is made, by the law itself, at least prima, facie evidence that
twelve or more of the grand Jurors have concurred in finding the indictment. And it is further provided that
“ where there is not a concurrence of twelve grand Jurors in finding an indictment, the foreman shall
certify, under his hand, that ‘no true bill was found’” (Rev. Stats. Mont., sec. 151, div. 3); and further, when
indictments are found, the law re-quires that they should be brought into court by the grand jury, and in
their presence presented to the court, and filed by the clerk in open court. Rev. Stats. Mont., sec. 152, div.
3. It is certainly the plain requirement of the Statute that at least twelve of the grand jury should concur in
finding the indictment. A charge concurred in, and presented by a less number, is not a legal indictment,
and no one should be held to answer for a felony there-upon. The Statute law points out methods by which
this concurrence shall be ascertained, but are these the only legal methods for ascertaining so important a
fact? In some of the districts it is the practice for the trial judge to ask of the grand jury, when an indictment
is presented, whether or not twelve or more of their num-ber concurred in finding the same. In oui4 view,
this practice is proper and commendable. Unless the means pointed out by the Statute are the only means
by which the concurrence of the required number in the finding of the indictment can be ascertained, there
certainly can be no objection to the prisoner interrogating the several grand Jurors under oath äs to this
matter. It is not one of the things which they are sworn to keep secret. The fact is certified to by the
foreman when he indorses the indictment, “ A true bill.” It is pub-licly, though tacitly, declared by each
individual grand juror, when the indictment is filed in his presence, and the filing thereof read by the clerk
in open court. But it is possible, in spite of all these precautions, that mistakes may occur; for, unless the
accused is in jail, the style of the case indorsed on the indictment is not read; and where several indictments
are prepared and submitted to the grand jury at the same time, out of a dozen, one which has been ignored
might accidentally be indorsed by the foreman, and presented to the court äs a true bill. Such mistakes and
accidents should be corrected. We are, then, after careful consideration and mature deliberation, of the
opinion that the bring-ing into court of the indictment properly indorsed, and the filing of the same by the
clerk in the presence of the grand jury, are only prima fade evidence of the concurrence of twelve or more
of the grand Jurors in the presentment, and that the accused has the right, before pleading thereto, on a
motion to vacate the same, properly made, äs in this case, to require the individual grand Jurors to be
interrogated, under oath, äs to whether or not twelve or more of their number concurred in finding the
indictment. This may be neces-sary, in capital cases, to prevent fatal errors, and we believe this position to
be fully sustained by the pre-ponderating weight of authority in the United States.
It is laid down äs an elementary principle by Greenleaf, in bis excellent work on evidence. He says: “Grand
Jurors may also be asked whether twelve of their number actually concurred in the finding of a bill, the certificate of the foreman not being conclusive evidence of that fact.” l Greenl. Ev., p. 285, sec. 252.
More than sixty years ago the supreme court of Maine, in discussing this question, used the following
language: “All the authorities concur that, unless twelve good and lawful men of the grand jury do agree in
find-ing the bill, the indictment is void and erroneous. Now, every grand jury consists of twelve men at
least; and, according to our practice, it never does appear whether a greater or less number concurred in
finding the bill, be-cause there is no reference to the number in the caption. That twelve did concur is
matter of inference merely, from the fact that the bill is regularly signed by the foreman, and delivered into
court in the usual manner. Now, for courts to be solemnly resolving, and legal writers of the first eminence
to be gravely stating, äs matter of settled law, that if twelve at least of the grand jury do not concur in
finding the bill the indictment is void and erroneous, seems to be very idle, to say the least of it, if the party
interested is not permitted to suggest the fact, and the courts are precluded from in-quiring into the subject,
or allowing the party to avail himself of the error. How any Juror voted is a secret no Juror is permitted to
disclose; but whether twelve of their number concurred in finding a bill 13 not a secret of the state, their
fellows, or their own. It is a fact they of necessity profess to disclose every time they promulgate their
decision upon any bill laid before them. Accordingly we are of opinion that it is proper, under the
circumstances of this case, and on the Suggestion made by the defendant, for the court to inquire into the
truth of the matter laid before them.” Low’s Case, 4 Me. 452, 453; State v. Symonds, 36 Me. 130; People v.
Shattuck, 6 Abb. N. C. 35.
We do not believe that this right has ever been denied to the accused when properly demanded by him,
though under various Statutes different modes of pre-senting the objection have prevailed. It is true, there is
one case, decided in Texas during the stormy days of reconstruction, by the military supreme court, in
which au accused person was denied this right; but the opinions of that court have ceased to be quoted äs
authority, and are said to be decisive only of the cases therein tried. The opinion does not quote a single
authority to sustain it, and does not seem to us to be well founded i u reason. We refer to the case of State v.
Oxford, 30 Tex. 429. The following provisions are found i u our criminal practice act, and are more or less
applicable to the question under consideration: —
“Sec. 204. At the time the defendant shall be required to answer the indictment, he may move to set the
Barne aside, or he may demur or plead thereto.”
“Sec. 205. The indictment shall be set aside by the court in which the defendant is arraigned, upon bis
motion, in either of the following cases: 1. When it is not found indorsed, or has not been presented as
prescribed by this act; 2. When the names of the material witnesses examined before the grand jury are not
inserted at the foot of the indictment, or indorsed thereon,; 3. When any person has been permitted to be
present during the Session of the grand jury, while the charge embraced in the indictment was under
consideration, except those allowed by law.”
“ Sec. 207. The motion to set aside the indictment must be in writing, subscribed by the party defendant, or
bis attorney, and must specify clearly the ground of objection to the indictment. If such motion is not made
before the defendant demurs or pleads, the grounds of the objection to the indictment, which might be made
in such manner, shall be deemed waived.”
“Sec. 217. There may be three kinds of pleas to an indictment: a plea of,—1. Guilty; 2. Not guilty; 3. A
former judgment of conviction or acquittal of the offense charged, which may be pleaded with or without
the plea of not guilty.”
It will be seen that this objection to the indictment cannot be presented by a plea thereto, for it does not fall
within section 217, just quoted. Then it must be pre-sented by motion. It is true that such a ground for
setting aside an indictment is not mentioned in section 205, quoted above, but we do not conceive that the
enumeration of the grounds made in that section is intended to be exclusive; and this objection, being of the
same general nature, though far more serious than any of those mentioned, may be made at the same stage
of the proceedings, and in the same manner. This motion was properly made by defendant before he
pleaded to the indictment, and in our opinion it should have been allowed. It may be that the motion could
not have been supported by proof; but the defendant ought to have had au opportunity of making an effort
to verify it by the evidence of the only persons who could testify in regard to the allegations therein contained, and these were the grand jurors themselves. Buch an opportunity was denied him by the ruling of
the court, and we cannot say it has not operated to his prejudice; especially in a capital case, when he has
been convicted and sentenced to the punishment of death.
If the defendant had omitted to make this motion until after he had demurred or pleaded to the indictment,
then, under section 207, above quoted, he would have been deemed to have waived the objection, and the
prima facie presumption that twelve grand jurors had concurred in finding the indictment would have
become conclusive, and the question, if raised, could not have been considered, But such is not the case in
the record here presented. A vital objection to the indictment (if sustained by evidence) was presented at
the proper time, and in the proper manner, and the court refused to hear evidence, and disregarded the
objection, which is an error requiring the reversal of the judgment in this case.
*
1889 MONTANA CONSTITUTIONAL CONVENTION
Debate on grand jury; starting on page 100 of hardback copy. [pdf 123/1063 ]
~
The Chairman: The gentleman from Silver Bow offers the following amendment to Section 8: Amend
Section 8 by striking out, in line 1, the words “ that, until otherwise provided by law.”
The amendment was seconded.
The Chair stated the question.
Mr. Clark, of Silver Bow: Mr. Chairman, there are some additional amendments there that I would like to
have read. I would prefer to have the whole amendment read.
The Clerk then read as follows:
“also, in line 2, the words ‘incidental or’; also all those words in brackets; also, all those words beginning
with ‘in,’ in line 4.”
Mr. Clark, of Silver Bow. I would like it to be considered as a whole, I would like to amend the whole
section so as to read, when amended, “No person shall for felony be proceeded against otherwise than by
information, except in cases arising in the and or naval forces, or in the militia when in actual service in the
time of war or public danger.”
Mr. Burleigh of Custer: I would like to ask the learned gentlemen from Silver Bow county if the object of
the amendment is to abolish the grand jury entirely, and wipe it out from the statute book, or whether it is
the intention to leave it in the discretion of the Judge in extreme cases, or such extraordinary cases as may
appear to the Court on certain occasions, to select a grand jury to aid the court?
Mr. Dixon, of Silver Bow: I offer a substitute for this section as worded, in order to get the whole matter
before the Convention.
Mr. Clark of Silver Bow: If the chair will allow me, I will answer the gentleman from Custer. My object in
making this amendment is to abolish, absolutely, forever, the grand jury system in the State of Montana.
(Applause). Now, I do not know that this section as I have amended it in its proper form, and I did not have
time to prepare a substitute for it, and I have no doubt there are gentlemen here who can greatly improve on
the reading of the amendment as offered. I have had a great deal of experience with the grand jury in the
past 20 years there has been scarcely one year that I have not served on a grand jury n this Territory; and in
a great number of indictments,--I think that it would average 60 per cent, or more--that have been found by
the grand juries upon which I have served, they were either quashed or nolle entered. I have studied that
system carefully. I have seen men go before the grand juries of the counties in which I have lived, actuated
by the spirit of revenge to fasten something upon some man against whom they had a grudge. I have
witnessed the fact that all the indictments that have been found were upon ex parte evidence, and as I have
stated, generally arose from matters of personal consideration. And it may grow out of this that any man in
this community, or in this commonwealth, may have a stain fastened upon his name which will last forever,
while he is as innocent as a new born babe upon the subject matter of the indictment. Gentlemen, I consider
that it is inquisitorial; that it is founded upon ex parte evidence, and that these matters can be reached by
information in every case, and in the grand jury system done away with. I consider that it is a relic of the
dark ages, that has lingered and clung to the institutions of this country, and that it is time for the citizens
of the Nineteenth Century, and the people of Montana who are now about to be clothed with statehood to
rise up in their majesty and relegate it to the dark ages from whence it came .(Applause)
[page 101]
The motion was seconded.
Mr. Burleigh of Custer: Now, Mr. chairman, I will proceed to say what I proposed to say before I sat
down, and that is, that the gentlemen from silver Bow County is not more firmly impressed what the
importance of abolishing the grand jury system than I am; and I believe in making no half way work of it. I
agree with him fully that the system is a relic of the dark ages of barbarism that came down to us from our
forefathers, and that we have no use for it; that it was a black spot and a disgrace upon the escutcheon of
our country a the present time. The substitute offered by my friend from Silver Bow (Mr. .Dixon) who is an
eminent lawyer, one of the ablest in the Northwest--seems to me to furnish no adequate remedy that should
be considered in disposing of this question. I believe the time has come when a man should go clothed in
the full panoply of manhood and make his complaint against the accused, and have him arrested and held,
and not any sixteen men in a secret inquisition; and I shall, for one, vote against the grand jury system- to
abolish it root and branch. - and vote for the proposition of the gentlemen from Silver Bow County (Mr.
Clark)- which I think is right.
[this fellow is not thinking about what he is saying; the grand jury is no more secret than a petit jury. Both
deliberate in private. Does Mr. Burleigh also want to abolish the petit jury?]
Mr. Robinson, of Deer Lodge: Mr. Chairman, I think we are now considering the welfare of Montana one
of its very important propositions to this Constitution. I do not quite agree with the gentlemen who have
addressed this convention upon the proposition. I do not entirely agree with them, but that is a matter on the
discretion of this convention, I am thoroughly imbued with the idea of prosecuting criminal cases by
information and complaint, and I am thoroughly imbued with the idea of dispensing with the grand jury
system as far as it is possible to do it, and were it not but one thing that I shall suggest, I should heartily and
thoroughly concur in the views expressed by the gentlemen; and that is this, whether or not it would be
wiser to retain it as contemplated in the amendment of the gentlemen from Silver Bow, to a limited extent,
leaving it discretionary with the Judge of the Court when a grand jury should be empanelled or to provide
that it shall be empanelled once a year-- a grand jury of seven or none persons-- for these reasons alone;
sometimes, on overhauling the books and affairs of the county it might be necessary to make an
examination and a grand jury would be the proper persons to do it-- a small grand jury; and more important
than that would be this: if we could have ideal prosecuting attorneys at all times, then I would say wipe it
from existence entirely; but experience has taught us that we won’t at all times get men who are entirely
independent and free from influences of friends or power, or a fear, sometimes, of cliques. Fear of political
influences, of classes of men, may operate on the minds of time serving district attorneys who would fail to
file informations against men where there was merit in the case. Through the influences of these men
prosecuting attorneys might not at all times do their duty. Then as a check, Mr. Chairman, upon such
influences as that, whether or not it would not be wise to retain a grand jury of seven or nine persons, to be
called at the discretion of the presiding judge, or to be called once a year, as a check upon the influences
that official men , or cliques of men who have large political influence, might exercise over the minds of
these prosecuting attorneys, who would not be willing at all times to come up squarely to the mark
irrespective of influences that might be brought to bear upon them. It is a question for the consideration of
this Convention, whether it would be wiser to retain the grand jury system to that limited extent, as
embodied in the substitute of the gentlemen from Silver Bow-- Mr. Dixon, I believe. I am rather, so far as
I’m concerned, after giving it due deliberation and consideration, inclined to support that proposition, and
not to abolish the system entirely, but to retain it to that limited extent, to provide for those contingencies.
Mr. Clark, of Silver Bow: Mr. Chairman, it seems to me that the objections proposed by the gentlemen
from Deer Lodge have not very much weight. Now he states that the grand juries may be necessary for the
purpose of examining records and the official act of public officers, and matters of that kind. I do not know
what experience what the experience of the gentlemen from Deer Lodge is reference to these matters. I do
not think, having engaged in the practice of law, he has been on [end of page 101]
[ page 102]
as many grand juries as I have; and I have seen some of these examinations of public records, and it usually
results in about this: the last day before the grand jury adjourns, they appoint a committee to go and visit
the Treasurer’s office; another committee will go down to the clerk and recorder’s office, to see that he has
not been derelict during the past year; another committee for the hospital and jail, etc. these gentlemen go
down and see the Treasurer and Clerk, who sometimes have a box of cigars, the boys are treated and they
go off feeling satisfied. Now, that a grand jury should be required to examine into the official acts of the
public officers is one of the most preposterous questions that are occasionally presented to an intelligent
body of men. It would require a large clerical force and a great deal of time to do it. It is a uniform thing for
them to go to these officers and come back and make a report; they do not know whether the Treasurer has
got fifty thousand dollars or ten thousand dollars as his books would show; they would not know anything
about that. Hence, the ideas of their making an examination such as ought to be made is little short of
preposterous. Now, as to the question of district attorney being purchased or corrupted, I do not understand
that this matter lies wholly within the jurisdiction of the prosecuting attorney. I understand that any citizen
of this state, or this county, may lodge information against any other man and have him brought to justice
for committing a crime. And the expense entailed upon the state or territory is a question of grave
consideration. You have 16 men empanelled to meet at the beginning of a term of court, and there are
witnesses brought here, summoned to the county from allover the territory, in some cases, to await the
action of this grand jury; and in many instances those witnesses are kept there for days before they are
brought to give their evidence--which, by the way, is evidence that would not be received in a court of
justice; and many times grand juries have had to delay from day to day to send all over the county to get
witnesses upon e new case that has just been brought in the last few days of their session; and I say
therefore, that the objections to that part of the system which the gentlemen advocates do not seem, in my
opinion, to have such weight as bearing upon this question.
Mr. Bickford, of Missoula: Mr. Chairman, in order to expedite consideration of this subject, I move you,
sir, with the consent of the Convention, that the amendment, together with the original section, be referred
to the Judiciary Committee, with instruction to report upon it, and to report a substitute if they deem it
necessary.
The motion was seconded.
The Chair stated the motion.
Mr. Burleigh, of Custer: I hope that motion will not prevail. We have the question before us now, and I
think it is time to dispose of it.
Mr. Clark of Silver Bow: Mr. Chairman, I rise to the point of order: I do not know what authority a
Committee of the Whole can refer a matter to the Judiciary Committee, or any other Committee.
The Chairman: The Chair was about to state to the gentlemen from Missoula, that he is of the opinion the
point of order made by the gentlemen from Silver Bow is well taken. Certainly this Committee could not
refer any business to any Committee, but it could make its report and recommend it to the Convention, and
then the Convention could refer it.
Mr. Bickford, of Missoula: if the Chair will permit me, I will change the wording of my motion, and move
you, sir, that when the Committee arise it report this Section 8 back, together with the amendment offered
with the recommendation that it be referred to the Judiciary committee.
The motion was seconded.
The Chair stated the motion.
Mr. Middleton, of Custer: Mr. Chairman, this, probably, is as important a question as will probably come
before this Convention. I am in favor of having this matter referred, for the purpose of having this posed by
the gentleman from silver Bow, and the substitute that was offered. I am unable to understand just how it
reads and what it means. But it occurs to me that, before that reference is made. The expression of the
Committee of the Whole should be ascertained, so that the Judiciary Committee in preparing a substitute
for Section 8, if they might see [end of page 102]
~
[Page 103; 125/1063]
fit to do so, would know whether or not the Convention were in favor of abolishing the grand jury system
entirely. So far as I am concerned, I heartily concur with all that has been said by the gentlemen from silver
Bow, Mr. Clark, so far as the matter of providing that the grand jury be empanelled at the discretion of the
district judge is concerned, the history of the grand jury system in the State of Wisconsin demonstrates that
the power practically amounts to noting and is not exercised. The constitution of the State of Washington
was amended in 1871, and prepared a statute on the matter of information that is full and complete,. The
district judges under that law have the power and authority to impanel a grand jury when they deem it
necessary. But there has never been a grand jury impanelled [spelling is correct copy] in that state since the
adoption of that amendment to the constitution except one. That exception was at the time was at a time
when the Newhall House in Milwaukee burned down, where there was several lives lost and culpable
negligence charged as the cause of the fire. A grand jury was impanelled at that time on the order of the
district judge, deeming it a matter of great importance, of the ablest and best men that could be found in
the city of Milwaukee. That grand jury sat for several days and practically accomplished nothing. They
found no indictments against any one. That is the only instance in eighteen years, under Wisconsin statute
and constitution, where the judges have the power to impanel a grand jury, that has been exercised. So that
I believe it would be safe enough for us to provide in this Constitution for its relegation to the past, where it
properly belongs. But it occurs t me that we should in some way or other ascertain the sentiment of the
Committee of the Whole, before the reference, as contemplated by this motion, is made.
Mr. Joy, of Park. It seems to me that it is too important of a question to be decided off-hand. I do not think
we have, any of us, considered it thoroughly enough. This question has been agitated for several years by
the ablest men in this country, and sentiment with regard to it has been divided. Now, I have listened very
intently to the remarks of the gentlemen from Silver Bow, Mr. Clark, and I fail to see that the argument
which he presents would in any way help us out of the dilemma. According to his statement. He bases his
claim that the grand jury system should be relegated to the past upon the ground that a great deal of
injustice has is done through spite and revenge, actuated by improper motives; that me come before the
grand jury and secure indictment of some citizen, and in that way the name and fame and family of worthy
citizens are disgraced. Now, how are we to avoid that? If there was any way-- if the suggestion that he
makes would help us out, I would be in favor of it. But, he said, the second time he stood upon the floor,
that according to his idea, his understanding would be that if it would not be left to the prosecuting attorney
alone to present these cases, but that any citizen of this state might go and lodge the complaint against
another citizen known or suppose to be guilty of any crime. Would not that give the same opportunity for
this spite and revenge to take its course? Would it be any more difficult for a man to go before a justice of
the peace, or even before a district court, and make a statement that some crime had been committed, even
if he were actuated by spite or revenge? Would it be any more difficult for him to drag a man into court
than it is now for him to go before the grand jury and accomplish the same purpose? I do not see that you
advance one step by that proposition. A man has the same right to work out his spite and the same
opportunity that he has now under the grand jury system. Now, if that be not the case-- if a citizen will not
be allowed, if we do away with the grand jury system-- if he were not allowed to go into court and lay his
information, why, then, it all devolves upon the prosecuting attorney, and I do not believe there is a man in
the Territory who would want to hold that position under that system. I am in favor of leaving the clause,
possibly, in our Constitution, that a [end of page 103]
~
[ page 104]
grand jury or five or seven or nine men may be impanelled at any time to investigate the county offices and
to take the responsibility of these indictments whenever it may be deemed advisable by the district judge.
Mr. Clark, of Silver Bow: I desire just simply to say that these proceedings before a grand jury were ex
parte-- that they were inquisitorial. It is a sort of Star Chamber proceeding, where a man has no chance on
Earth to defend himself. He can not even know when they are proceeding against him; whereas, if the
information be alleged against a man, and he be brought into a court of justice, it is an open court. He can
bring his witnesses there, and he may defend himself, and remove, thereby, the cloud that may be hovering
over his fair name and reputation. They are entirely different propositions. One is a secret inquisition, in
which men called by the state are deliberating upon a man’s act, without his knowledge perhaps, and, as I
said, they may be intent upon blackening that man’s character for some personal consideration, and he is
not allowed to bring witnesses there to defend him it is entirely different.
Mr. Joy, of Park: I would like to suggest, that under the laws of this territory at the present time, and has
they have been for years, the grand jury has had the right to require the witnesses for the defendant, and to
notify the defendant himself to come before the grand jury; and whenever in any case an indictment is not
found, it never does come to light, so the man’s name is not I injured very much; and if there is an
indictment found, he then has an opportunity to bring forward his witnesses and show that he innocent of
any charge whatever. I did not see that the fact that it is an ex parte proceeding cuts any figure in the case
whatever. If there is no indictment found, the man is not injured very much. The grand jury is under oath
not to divulge anything of what transpires in the grand jury room, and no one is likely to talk of what
transpires in the session of the grand jury. If the Party charge is an innocent man, he is not injured to any
great extent. If he is not guilty, he comes into court, has compulsory process for obtaining witnesses, and if
any wrong has been done him he has every opportunity to vindicate himself and his honor.
Mr. Eaton, of Park: with reference to a single point. There seems to be some little difference of opinion as
to just what line of procedure may be indulged ion a grand jury room. The gentlemen who last spoke, for
instance, says it is quite possible, and even proper, for a grand jury to investigate the defendant’s side of the
case-- to bring in his witnesses, or even defend himself. With reference to that single point I am disposed to
take exception for this reason: as a member of a grand jury, I distinctly remember being charged by a judge,
that it was highly improper to call witnesses for the defendant at all, and absolutely improper to have
anything to do pertaining to even a suggestion of bringing ion the defendant to defend himself. That was
charged by the judge upon the bench. So much for that single feature [a true common law grand jury has no
single judge directing anything] . And with regard to the general feature, I only wan to add a word, that I
believe the grand jury system is an absolute inquisition, in that an indictment brought against a man, no
matter how innocent he may be, sticks to him and clings to him, a stain upon his fair name forever; and that
it is quite possible for a grand jury to bring an indictment against a person upon which such evidence, that
not one syllable will even be permitted to be uttered in the court room when the trial of the case comes up. I
am opposed to the whole system on principle.
Mr. Collins, of Cascade: Mr. Chairman, to bring this matter clearly before the Committee, I move to amend
the motion by adding “with instructions to report a motion which shall abolish the grand jury system”.
The Chairman: the gentlemen from Missoula moves that Section 8, with the substitute offered by the
gentlemen from silver Bow (Mr. Dixon), he referred to the Judiciary Committee. Now the gentlemen from
Cascade desires to add to that motion the words “with instructions to report a motion which shall abolish
the grand jury system”. The chair will treat this motion of the gentleman from Missoula and the motion of
the gentleman from Cascade as one motion.
Mr. Craven of Lewis & Clark: Mr chairman, I trust this amendment will not prevail. This matter of the
grand jury is one of the most important things for this Convention to settle. I do not wish this question to
go before the Committee on Judiciary in any way curtailed ore bound [end of page 104]
~
[ page 105]
up by any vote that we may take upon it. I want the Committee to act entirely free in any matter; not to be
under any instructions or to draw any inference as to what the opinion of this Committee may now be; and
give us all plenty of time, so that any matter may be thoroughly discussed and looked into before any
reference of that kind be drawn from the present vote.
Mr. Marshall of Missoula: Mr. Chairman, I desire to suggest that, according to my opinion, no prosecution
for criminal offenses will be, or can be commenced without an ex parte and inquisitorial examination. And
it seems to me that the question really now is as to whether that examination shall be made by a grand jury,
or shall be made ex parte when the affidavits are filed before the magistrate and a warrant for the defendant
is applied for. Now the gentlemen take a very different view of the institution of the grand jury from what
our fathers did at the time of the adoption of the Constitution of the United States, as originally reported by
the Convention in 1787, had nothing in it about a grand jury; but the states, when they came to ratify that
Constitution, proposed some seven or eight amendments that they considered important, made to preserve
the rights of the people against the oppression of officers and the government; and among them was the
institution of the grand jury; and some of the states went so far as to propose the ratification of the
Constitution of the United States should be contained upon the adoption of this amendment. Very many
came to the conclusion finally, that they could not make that sort of ratification without endangering the
Constitution, but that their state conventions, as I understand it, proposed these amendments to the
Congress of the United States, and submitted them to the states, and they were adopted. The grand jury
system as presented to us in the Constitution of the United States in Article 5 of Amendments, in
connection with other great rights held by the people says: No person shall be held to answer for a capital,
or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising
in the land or naval forces, or in the militia, when in actual service in time of War or public danger; nor
shall any person be subject for the same offense to be twice put in jeopardy of life or limb, nor shall be
compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property,
without due process of law, etc; it was considered then that the grand jury system was a safeguard-- a
protection of the rights of the people against the power of the public officers, of the public generally, and
of the government; and it was inserted in the Constitution for that purpose. I have always believed that it
had that effect to it--that men summoned from the different parts of the country, common citizens of the
country, not sworn officers of the law, not prejudiced and bound to believe a man is guilty when he is
charged, but common people of the country : that the rights of the citizen are more clearly protected when it
says that he shall not be prosecuted unless twelve of these common citizens of the country summoned from
the different parts of the country, have heard the evidence ex parte, if you choose, and inquisitorial, and all
that-- shall have probable cause to believe that man is guilty and ought to be prosecuted. And I believe the
rights of the citizens are more clearly protected by the grand jury than if left to any officer to issue a
warrant for his arrest. And so far as the stain is concerned, the indictment of the grand jury only the charge
upon which the warrant issues. That charge must always be made. The evidence is there to warrant its
issue. The character of the man is as much hurt whether it is issued upon the indictment of the grand jury,
or upon affidavits of citizens generally, or any officer. I believe myself that the grand jury was intended,
and has always been considered, as a protection of the rights of the citizen. I believe it has that effect to it.
But that is not the only benefit of it. What is everybody’s business is nobody’s business. The grand jury,
generally selected from different parts of the country and sworn to diligently inquire into the evidence and
breeches of law committed is the body of the county. It is their special duty to inquire into it, and they are
sworn to it; and very few indictments probably could be found in any county that would not permit it these
inquisitorial investigations. But when it is everybody’s business, no citizen wants to be a common
informer, and generally no citizen will be an informer unless he feels himself in- [end of page 105]
~
[page 106]:
jured, and probably feels malicious against the party against whom he is going to inform. And it seems to
me, not only for the protection of the citizen, but for the protection of the country, and the punishment of
offenses, that the grand jury is a good ting. And I do not believe with the gentlemen from Custer that it is a
relic of the barbarous ages. It was required by our forefathers to be out into the Constitution of the United
States, because they believed it was a protection to the citizen.
This is what it was done for. I believe that the amendment offered by the gentlemen from Silver Bow (Mr.
Dixon) is a good one. it is not necessary, probably, that every offense should be prosecuted by indictment;
but let it be prosecuted by indictment, or, before the man is held to answer in the circuit court, let him be
examined or inquired into. I believe that is the proposition of the gentleman from Silver Bow-- that district
courts have the right to summon grand juries. Let them inquire into offenses in the county which have not
been inquired into, and let the district court summons a grand jury when it is necessary from his knowledge
of what is going on in the county; and let a party be prosecuted, and only prosecuted, either when he is
indicted by the grand jury, or after a fair examination before a tribunal of the county. And I shall, so far as
I am concerned, support the amendment of the gentlemen from Silver Bow.
Mr. Rickards, of Silver Bow: I move, Mr. Chairman, that when the committee arise, they report progress,
and ask for more time, and that we do now arise.
The motion was seconded.
The Chair put the motion and a vote was being taken the same was carried.
~
[page 107] IN COMMITTEE OF THE WHOLE. Mr. Callaway in the Chair.
The Committee was called to order by the Chair.
Mr. Dixon, of Silver 13ow: Mr. Chairman, the question, äs I under-stand it, now is upon the motion to defer
the matter of the abolition of the grand jury System, and (he different amendments thereto, to the Judiciary
Committee for report to the Convention. It seems to me in regard to that matter that it is a matter upon
which the Committee has pome discretion, and I think we might äs well consider it now while before us
instead of delaying it by i\ reference to the Committee. l desire to say a word, and I shall not take n p but a
very few minutes. There seems, äs I understand it, to be, a general conviction that the grand jury system äs
at present. with the expenses that are attached to it— the necessary expenses in the matter of proceedings
by indictment in every case, should be remedied: but exactly how (hat is to be done is a question upon
which members differ. Now, in regard to this matter of abolishing the grand jury entirely, it is a very
radical proposition. So far äs l know, and l think I am correct in making the statement, there is not a state in
the Union that has yet abolished entirely the grand jury system; and when we undertake to do that we are
taking a step, which. although in the direction of reform, is one that is entirely too radical; and we are
undertaking an experiment that I, for one, cannot countenance. The institution of the grand jury is a very
old one. Its proceedings, the law relating to it and to indictments, is well settled and understood. If we
throw that aside entirely—if we undertake to substitute an entirely new system for it, we are treading, I
think, upon rather dangerous ground. Now. the substitute which I have introduced here is intended to, and I
think does, apply to the subject in about this way. We do not abolish the grand jury entirely, but we reduce
it largely in number, from sixteen men, äs at present of whom twelve must concur to find an indictment, to
seven. äs proposed here. However, äs the matter of numbers is not important—it might be thought better to
make it nine, of whom seven may concur; but that is simply a matter of choice. Now, H is proposed to
retain this grand jury, but to make it necessary that crime should be prosecuted äs a general thing by indictment. It is proposed here that crimes in the district court—criminal offenses—shall be prosecuted by
information in two classes of cases; one is where there has been an examination and commitment by a
magistrate, and another is by leave of Court given for that purpose, So that this does not give any one
county attorney, or any other person. the right to Institute a prosecution in the district court; but it does,
without the formality and dilatoriness [page 130] of the proceedings by grand jury, under examination and
commitment by a magistrate, give the right to proceed by information, or, on the other hand, by leave of
court, which would apply in that class of cases, for instance, while the court is in session, where it would
seem superfluous, but where the court, being satisfied that a crime has been committed for which an
information should be filed. Should direct such information to be filed and no further prosecutions would
he required. But there may be cases arise, in cases of public excitement, where, from a failure of the district
attorney or any other officers entrusted with the administration of the law, attempts may be made to shield
parties from indictment, or, rather, from proceedings in criminal cases where the management and accounts
of officers should be investigated and looked into criminally; that. äs has been said before, not being the
business of any one in particular could be overlooked and neglected. For that class of oases, and to keep a
guard and watch over the district attorney, or any other officer, and see that he performs his duty, and to
call up the grand jury when it may be necessary to look into cases that they have overlooked, or to which
public attention has not been drawn sufficiently, or which there is not a disposition to prosecute. although
(hey should be prosecuted, then a grand jury is summoned. and it may indict in any case. It is not restrained
by the fact that. there must have been first an examination and commitment by a magistrate; it will require
no leave of court for them to proceed, but they may go on at once, and have the power to indict the district
attorney. or the judge upon the bench, and thus exercise a supervisory shall escape who shall violate the
criminal law. Now that is the subject of this provision. We retain the grand jury because we know the
course of procedure in that body, and the indictment, and all matters relating to the practice, are settled by
law; and we only call it, when, in the judgment of the court, it is necessary. It is not a prerequisite to the
prosecution of public offenses, it is only kept there for the purpose of calling them together whenever, in
the opinion of this court, it may be necessary; and it certainly seems to me it would be a necessary
provision to retain. If it is not needed, äs very likely it will not be more than once in one or two years
perhaps, it will not cost anything. If it is needed, it will be needed, and in some cases needed very badly,
and if there is no provision for it there will be no way of getting at il. The Provision which I have
introduced here, except in relation to the size of the grand jury, which t have reduced here because it
seems to me really that nine men or seven men are just äs good äs sixteen men—but, with the exception of
that and with the exception of the provision which it would seem now better to provide t’or in relation to
one or two other matters— with those exceptions the provision is taken exactly from the constitution of
California: and. äs I said before, if we undertake to abolish
tried in any state of the Union. California. Wisconsin, and several other slates—l do not know exactly how
many—have adopted substantially the form which it is now proposed to insert here; but they have never tr
one to the extent of abolishing the grand jury; and if it be true. ät the gentleman from Custer says, that it is
the history of Wisconsin that a grand jury has never been called although the constitution authorizes it that
would be a strong argument n retaining the provision of the grand jury, a , possibly very seldom, be called
into requisition. With these exceptions, reducing the number of the grand jury and providing for
information to bc filed by the court äs well äs by a magistrate, the proposition offered here is taken almost
literally from that of California. Now, I believe propositions of record and while there are a radical reform
it should much prefer, so far äs I know anything about the matter, to take experience that has been acquired
by acting under certain laws or certain provisions of the constitution, without branching out wildly into
some new and entirely different scheme that has never been tried before. And while l believe, äs I said, that
it is useless to require a grand jury to find an indictment in order to prosecute for crime. still I think there
are cases where the Intervention of the grand jury will be required; and if the institution is left in such a
shape, so reduced in number and with no requirements necessary, certainly it seems to me to be a great deal
better to retain that Institution than to do away with it altogether and branch out. altogether into a system
that no state has yet undertaken to try (Applause).
[pdf131/1063] Mr. Whitehill. of Deer Lodge: I think that in the main, I am in favor of the substitute
embraced in Mr. Dixon’s motion. l certainly am in favor or ii, I desire simply to reply to thc arguments of
the gentleman from Missoula (Mr. Marshall). I believe that the idea he conveyed was that, on account- of
amendment No. V to the Constitution of the United States, wherein it says that “no one shall be held to
answer for a capital or otherwise infamous crime. unless under presentment or indictment nf a er and jury,”
fite., that that was applicable to all the states and territories. and that thereby we are prohibited from
incorporating such a Provision in our state constitution; at least, if that was not the idea conveyed, that it
was a precedent for us to establish. Now, äs a matter of [PDF 132/1063; book page 109]:
tact, that provision has been incorporated in a great many of the stales of this Union. II has been
incorporated in the constitution of Arkansas, in the constitution of Connecticut, in the constitutions of Iowa,
Louisiana, Minnesota. Missouri, New York, Ohio, Tennessee, West Virginia and some others; and it is
incorporated there just äs it is in the Constitution of the United States, and, of course, it would be
impossible to abolish this grand jury system. But there are quite a number of the states where there are
different provisions; and, äs Mr. Dixon has said, there is not a state in the Union where the grand jury
system has been abolished. In live of the states, that is. in Pennsylvania, Delaware, Kentucky, Alabama and
Mississippi, it. is provided that no person shall be proceeded against criminally by information. In
Wisconsin the pro- without due process of law. That is the provision in the Constitution of the United
States, and under that Provision, I understood from the gentleman from Custer, that a grand jury has never
been called. Now the California Provision is that offenses may be prosecuted by indictment or information
alter examination and commitment by a magistrate. In some states the constitution gives the legislature
power and authority to abolish the grand jury system, and that is the case with Indiana, Illinois, Iowa.
Nebraska, Oregon and Colorado. And now I come to the question which the gentleman raises in regard to
this being binding—this provision of the Constitution of the United States being binding on us, and that we
cannot interpret it here. That has been decided in a number öf cases—two cases in the United States courts,
and several cases in the state courts that the provision of the Federal Constitution äs to prosecutions by
indictment or presentment to the grand jury has been held to apply only to offenses against the United
States, and not to offenses against the individual states; and that has been decided, äs I said, in the
Hurtalo vs. California, 110 United States, 516. It has been decided ‘in a case
case in Kansas: and in one case in Mississippi. So that the objection of the gentleman from Missoula, that
we cannot incorporate such a pro-vision. has” been decided by the highest courts of this land, and it is held
that we have the right, if we see fit; but no state in the Union has seen fit äs yet to do more than the State of
California. That comes nearer abolishing it than any of them, but it leaves it so that a grand jury may be
called in each county once a year. as a matter of fact that virtually abolishes it, because it is seldom, if ever,
called; and that is just what we desire to do here. There may arise cases when it will be necessary, and
when nearly everybody will be anxious that this grand jury should be involved. Now, this system does
away with the objections of the gentleman from Silver Bow (Mr. Clark). l agree with him absolute l y, and
am very much in favor of abolishing .this system äs an inquisitorial proceeding—a Star Chamber, where
people are injured. äs the gentleman has said; but if there is any good in this System of the grand jury, we
retain it; so that it is a compromise really between l he gentlemen who are in favor of the grand jury system
and those who are in favor of absolutely abolishing it. It does away with the objections of those in favor of
abolishing it, and it retains all the good points, if there are any, in the grand jury System. For that reason I
am greatly in favor of the proposition. or the substitutf1 offered by Mr. Dixon.
Mr. Middleton then called for the reading or the substitute again, and the Clerk read same.
Mr Burleigh, of Custer: Now, Mr. Chairman, while the gentleman from Silver Bow (Mr. Dixon) may be
correct in the position which he has assumed, I think his reasons are a little bit “fishy”; and it will state here
that I do not believe that there is the slightest danger of a district attorney, who must be a member of the
legal profession, and is presumed to be a man of honor, who is elected to that Office and takes his oath of
office to discharge his duties with fidelity, the same äs a district judge does—I do not believe there is any
danger of his being corrupted or of railing to do his duty, his whole duty, in the prosecution of criminals.
And. äs one of the district attorneys, duly elected by the people, I wish Ir. say. that if that is intended äs an
aspersion upon those gentlemen a? a class, or upon any one of them individually, I stand here to repel it:
and while l do not profess to be more honest and conscientious than my neighbors, l do assert and maintain
that there is not a man on the [132/1063; book page 109]
[133/1063 book page 110] bench, or at the bar, in any county of this Territory. who endeavors to
administer its law more faithfully than I do. Now let us come down to the practical part of it. There was a
good deal said here this afternoon about the grand juries’ operations. It is, and always has been, an
inquisitorial body of the strictest kind, acting in secret, and so designed to act in that way, without assuming
the responsibility of its acts, because they were done in secret. It was provided that the grand jury should be
organized and it should be a strictly inquisitorial body, doing its work in secret; and its oath says that none
of its secrets should be disclosed. I trust that system under the enlightenment and advancing civilization of
this period of the Nineteenth Century, when every man is supposed to be independent and when every man
is allowed to assert his rights under the Constitution, will wholly disappear. It any man is offended— if he
is injured— if he sees an offense committed, he has a right to go before a committing magistrate, a justice
of the peace, or any
and have him brought up there, and, if probable cause appears, he is held to answer, where? To the
inquisitorial body of the grand jury? No; but to the court itself; thereby dispensing with the necessity of
grand juries, which have entailed such enormous expenses and such debts upon and proposing a charge
against his derelict neighbor who has assaulted his wife or children. who has assaulted an honest man in
broad daylight, and accusing him of the crime? The magistrate who sits there clothed with all the panoply
of his office, under the sanction of his oath, after hearing both sides, and after having provided the accused
with his attorney, he is bound to do under the law äs it now exists, finds the man guilty and holds him for
the crime. Is it necessary then, in order incur the further expense of a grand jury? By no means. Let the
accused go up and face the court like a man, and, if he is innocent, prove his innocence. Now there was
something said this morning about this dangerous man having power to nolle the indictment in case he was
a corrupt man. There is nothing of the kind here. It has been the custom here, through the wisdom of the
man who founded the law, that no indictment shall be nolle prossed except on order of the court, upon
ground stated. Apply that ground to the preliminary examination ft the magistrate, before whom the man is
to answer, and you have all the sate-guards. Now one of the arguments that have been used here in favor of
this municipality of districts. is that in consequence of getting rid of the probate courts— in consequence of
getting rid of the clerks of the probate courts and this burdensome grand jury system— we would actually
reduce the expense than we .have been running them heretofore. l believe that is true, but I do not believe
there is any necessity of holding on to this fossilized, defunct end of an old system, for fear of cutting loose
and making a new departure. We are making a new departure. We are starting out here, having the
swaddling clothes of territorial government and territorial vassalage behind us, prepared in the full panoply
of manhood to start out and run a state upon patriotic, lawful and safe principles, without anything to drag
us back to the imbecility of the past. Now I think my friend— Mr. Dixon— who is one of the finest lawyers
in this country, one of the most eloquent of the gentlemen who adorn this country, and a gentleman of
whom I feel proud äs a citizen and äs a professional brother — I think he has seen something that is
frightening him from the true course of political consistency here, and wants to hang on to this old relic that
we want to get rid of on the ground of the speedy administration of justice and upon the ground of political
economy.
Mr. Robinson, of Deer Lodge: Mr. Chairman. Upon a careful consideration of the substitute offered by the
gentleman from Silver Bow. I am dispensed to adhere to that. There was one little proposition advanced by
the gentleman who last addressed this Convention, the entire details and practical effects of which he has
perhaps lost sight of; that is to say. that if we do away with the system of grand juries entirely, and leave it
to the prosecuting officer to prosecute all cases where a committing magistrate has bound the party over to
appear before the district court, l regarded äs a very unsafe procedure indeed — very unsafe. I have had
occasion to notice that those things are very critical and care [134/1063 here; book page 110 ends here;
page 111 begins now]
~
fully. If you adopt a rule making it incumbent on the prosecuting attorney to prosecute in the district
courts all parties bound over by a committing magistrate, then you would entail almost as much useless
expenses upon the respective counties and districts in Montana äs you would by the system of grand juries;
because it is a well known fact to those who have observed, notwithstanding that the testimony on either
side may be submitted to the average committing magistrate. with all deference to their judgment and the
panoply of their official position and oath, with all due deference to that, it is patent that. in a very large
majority of the cases in which they bind the parties over, they mistake the case entirely; because they bind
parties over to appear before a grand jury when any good lawyer examining the facts in the case would see
the utter impossibility of reaching a conviction; and that it occurs in perhaps half the eases which they bind
over. Then a system which requires a prosecuting attorney to appear in the district court and summon all
the witnesses on either side of the case and subject the county to the expense of it, would entail an
enormous and unnecessary expensiveness; besides that, it would be the very thing exactly that we
o possibly can—to avoid subjecting innocent parties, or if they are guilty, where there is not sufficient
evidence to reach a conviction—to avoid the expense of a prosecution, and to avoid harassing them with
prosecution. Now then I say that if we adopt any rule that will make it incumbent upon the prosecuting
attorney to prosecute in district court every man who is bound over by a committing magistrate, then I say,
in order to shun one evil we are jumping into a greater one, or as great. Now it seems to me that what is
contemplated by the substitute provided for that exactly-- that is, the prosecuting attorney may prosecute
parties who are committed by a committing magistrate, or, where they are not committed by the
committing magistrate; in either case it leaves it discretionary with him, subject to such legislation as may
be presacribed. It is well known, too, that it will not do to rest these prosecutions only on cases where a
committing mag-istrat has bound the parties over, because it is a well known fact that there are a large class
of cases that never reach a committing magistrate or justice of the peace, and yet the public interests
demand they should be prosecuted. Therefore, I say it is the better policy to leave all these matters in the
sound discretion of the prosecuting attorney, who id (he best judge of the character of the case, and who
knows whether the party can be brought to a successful conviction. Leave it to his discretion entirely upon
that, who is the best judge of all those propositions. That is what this substitute contemplates. as I
understand it Then. in order to meet a class of cases—with all deference to the class of men who may be
elected prosecuting attorneys to guard against improper influences being brought to bear upon time serving
men - be-cause it will not always do to follow out the theory, for the theory and the practice of it, we are
taught, are two separate and distinct things, and practice will not always carry out these things—the
prosecution is that we are always going to have prosecuting attorneys who will come up to the mark, who
are good lawyers, and who will do exactly what is right without fear, favor or affection; but, as a matter of
practice, we know that we cannot always get such men, and we should guard against the possibilities of
such calamities as that. Then, I say, let us adopt a system in our Constitution by which we can steer clear of
these evils, and will be a protection to prosecuting attorneys as well; it will be most gratifying to them to
know that, being invested and clothed with this sole power, there is a tribunal standing behind them , so
that they can say to men who think they have refused to prosecute men that they think should be prosecuted
—they have something to fall back upon. and they can say, “gentlemen, if you think this man for any
reason should be prosecuted against my judgment, here is a tribunal and the case can be submitted to that
tribunal.” 1t is a shield and a protection to prosecuting attorneys. and it puts them in a better Position to
inspire the confidence of the public and to perform their duties properly. Then let us guard against these
evils that may come, not predicting that they will. It is the dictate of wisdom to guard against those
contingencies that may arise. I can forsee them as plainly äs I can see the face of the presiding officer of
this Committee. Experience has [end of page 111]
taught that these men occupying official positions will not always do just what is right. Why sir, as an
illustration of that, the Congress before the last passed a law providing that the fees of officers should not
be increased or diminished during the term of Office. Our Legislature last winter passed a law increasing
the fees of some of the officers. as it is understood, I presume the proper interpretation of it would be that
that law would only apply to those who were elected or appointed before the next general election; but in
spite of all that, my observation has been that every solitary officer had jumped in and charged the fees
from the very turn loose under the new fee bill, in violation of this Act of Congress, thereby, under our law,
subjecting them to criminal indictment. If the temptation or officers and men is sometimes too great, human
nature is weak and they will do it, Their judgement may be warped; sometimes they will commit errors of
judgment not willfully. And I say. let us in these matter, guard against these things and place a protection
over prosecuting officers, and place it beyond the power of men to go to ex-tremes. Who has not seen
instances where communities have vibrated to extremes against officers who are faithfully trying to
discharge their duties? Who has not seen the public clamor, or rumors. or misunderstandings of facts of this
thing, that and the other, accuse men wrongfully or these things; and I can forsee where it is more likely to
occur in cases of this character«r than any other; that in these criminal matters it, often divides itself into
cliques—one party in favor of the accused or men who should be accused, and the other against the party. .
Communities will divide themselves upon it; rumors will be rife; exaggerated statements of fact will
become rife, and the public will become excited, and they will get wrong impressions of it. They will bc
ready to accuse a prosecuting attorney of favoring this man, that and the other for business influences,
political influences, money influences, that and l he other thing. It places an honest prosecuting attorney in
a very unfavorable position indeed—the man who desires to do his duty irrespective of friendship, fear. or
favor—it places him in a very unfavorable position. Then I say, in order to enable this man to go fearlessly
up to the work and do what is right, I say let us have some tribunal to stand behind him, that will be a
refutation of false charges and false impressions that the public may gain about him äs a prosecuting
officer. and who can say to them, “Gentlemen, if I am wrong in my judgment about this thing, here is a
tribunal standing behind me, a grand jury that may bc summoned, and let them act upon the case. then, if
they say I am wrong. l will cheerfully prosecute that case.” it relieves him of responsibility
in our Constitution. Then it seems to me, taking all these propositions together, that the most rational and
the best theory we can adopt is throne suggested by the gentleman from Silver Bow (Mr. Dixon) äs a
substitute for this bill. Upon mature deliberation, and the experience I have had äs a prosecuting officer,
and weighing these things äs carefully and closely äs I have done, I say. it is better all around to retain a
remnant and a relic of barbarity. The gentleman from Missoula County has used the very language that I
desired to express to this Convention. He gave the fairest exposition of the grand jury system—the way a
great many who laid the foundation of our government reviewed that thing: they considered it carefully and
thoroughly. All these things are subject-to abuse, but it seems to me that the gentlemen who took the
opposite side have vibrated to something of an extreme in condemning the grand jury system. While I am
opposed to its general use, I believe the state will be subserved by retaining it to the extent of the substitute
that this Section 8 contemplates.
Mr. Luce, of Gallatin: Mr. Chairman, the only excuse I have for offering any remarks at this time is that I
think this is one of the most important questions that will come before this Convention, and I have very
little to add to what has been said by the gentleman who preceded me and the mover of this proposition. I
can conceive instances where it would be necessary for the rights of the people. for the due execution of the
criminal laws of the land, that there should be a grand jury behind all of these prosecutions, or, rather.
examinations before committing magistrates, or informations that may be presented by leave of the court.
Now, sir, let us suppose—and it is not very much of a stretch of the imagination to suppose magistrates
who are not familiar [end of page 112]
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[three blank pdf pages, middle has 1889 watermark names; pdf restarts 138/1063]
~
with the criminal laws of the land; l have seen those that were not as thoroughly cognizant or it as my
friends from Deer Lodge or Silver Bow. counties—and the prosecuting attorney has made out a very good
case, and through the stupidity of the magistrate the accused is discharged. Now then, the people of that
community think there has been a violation of the criminal laws of the land and would desire to have that
party punished, the grand jury may take up such a case as that. Again, it frequently occurs that, after- an
examination before a committing magistrate, further evidence has been found, and there should bc
occasions, or means rather to meet such a case at that, l think a grand jury that may be called in the
discretion of the court is just exactly the body for all such cases as [hat. Then, again, there is another thing
which seems to me to be overlooked. There are certain proceedings in the examination of criminal
offenders that certainly should be kept secret. I will instance simply this matter or the Cronin murder in
Chicago, where for weeks a special grand jury investigated all the charges. Now then, it is necessary
before an examining magistrate under out system of jurisprudence, that examination should be open to all
the world; and the criminal that himself becomes cognizant of everything against him. If he finds that it is
light and be can fix it, he stands and takes the charges; but, otherwise, you will find him in Canada or some
other country. There are cases of that kind that should go before the grand jury: and, as was suggested by
the gentleman from Silver Bow county. there is no expense attached to this method unless the grand jury is
called into requisition: and it seems to me that if they were called, say once a year. it would not be very
burdensome to any county. There are — and I will repeal it— there are cases where there should be Star
Chamber investigations— secret investigations; otherwise an arm of the criminal law Ja weakened; men
may escape justice; and l think, taking this all in all, that it would
willing to compromise and say that five should compose a grand jury; but we should have- some body that
could bc called to meet cases that might be evaded or might be passed over— the cases where they might
not be properly investigated by the committing magistrates or the prosecuting attorneys. I say that
somebody— some collection of men or grand jury —you may call it what you please; if you object to the
name of grand jury, call it some other name— but that some collection of persona in-tended to meet such
exigencies as I have mentioned should be maintained
Mr. Bickford, of Missoula: ‘«r. Chairman, I desire to withdraw the motion made by myself, before a recess,
to commit this matter to the Judiciary Committee for report.
The Chairman: The gentleman withdraws his motion.
Mr. Carpenter, öf Lewis & Clarke: Mr. Chairman, the motion before the House is the proposition or motion
of the gentleman from Silver Bow. ün that I wish to say one word and I will offer an amendment to it— or
rather, a substitute for it I will read the amendment for the information of the Committee, but I will call the
attention of the gentleman from Lewis & Clarke to the Tact— (interrupted ). It the substitute is not in Order
— (interrupted)
The Chairman: The first amendment was the one offered by the gentleman from Silver Bow, Mr. Clarke,
and the next was the substitute offered by the gentleman from Silver Bow, Mr. Dixon, which becomes
President of the Convention is the original motion. The motion of the gentleman from Silver Bow. Mr.
Dixon, is the amendment, and this is an amendment to an amendment.
Mr. Goddard. of Yellowstone: My understanding is that the original motion made by the gentleman from
Missoula County has been withdrawn.
Mr Collins. of Cascade-: Mr. Chairman. my motion to refer to the Committee on Judiciary, with
instructions to report a section that would abolish the grand jury system, has probably been lost. as my
motion does not seem to be before the Committee, I would like to say a word upon the motion of the
gentleman from Silver Bow, Mr. Clark: Now, Mr. Chairman. I believe it should not be the exclusive right
of the members of the bar to settle this question. We all feel proud of the Judiciary Committee of this Body;
no better one could have been organized or put into working order in any one of the great states of this
[book page 113 ends here]
[139/1063; book page 114]:
Union, and this Convention and the people of Montana should feel proud of it; but, notwithstanding that
fact, I claim that upon a question öf this kind, the members of this Convention who are not members of the
bar are äs well qualified to judge by past experience of this matter äs they are. I claim that because the
members of the bar are almost unanimously in favor of this proposition, they should not by their fine
arguments and gib tongues convince all the balance of us that we should go with them. Now sir, I believe
that aged lawyers, and learned lawyers—men who have retired from the practice, men who have written
text books upon legal subjects, and will have written special articles upon this subject in the great
magazines in this country almost unanimously agree that it would be a step in the right direction—a great
reform—to abolish the grand jury and almost abolish the petty jury. Now, if that is the case, and if in
conjunction with that a half a dozen great states or this Union have virtually abolished the grand jury
system, and have gotten along very well without it, then I ask why in all reason should not the State of
Montana advance in the reformation of the judicial System of the country and also, abolish it. I believe that
the attorneys at law, taken as a class, are the most conservative citizens in the United States: that it is
harder for a lawyer to jump out of the beaten rut, no matter how far back that rut may have originated-- it
is harder for a lawyer to jump out of that rut than any other class of citizen of the United States. I believe,
as a fact, that it is a good thing for the citizens of the United States that such is the case; but upon questions
that other people can judge of, it seems to me that the opinion of the lawyers should not prevail. The
arguments of the gentlemen who have talked this forenoon upon this question it seems to me are conclusive
that the grand jury system should be abolished, and I believe that is the voice and opinion of the people of
Montana; that opinion is voiced by almost the unanimous community in favor of abolition of that system. I
believe I heard an expression from a number of attorneys in favor of the abolition of that system; an di hope
that when it comes to a test, that this matter will be referred to the Judiciary Committee, with instructions
draw such an iron clad section äs shall forever abolish it and give us in lieu of it something else. If that is
the view of the Convention, I believe it is the proper course to take, and I will say here and now that when
they do pass upon the matter and introduce that section, I believe that every citizen in Montana will feel
that this section is perfect, and that there is no danger of a great radical change or a great disruption of
judicial proceedings because the section abolishing the grand jury is incorporated in our Constitution. I, for
one, hope that this will be looked at from every point of view, and that the majority of this Convention will
vote in favor of abolishing the system. I can conceive of no case on earth, under any circumstances, or in
any country, where it requires the examination of a grand jury. It may be possible that county affairs, and
county boards and county proceedings may have to be examined by commissioners, but, if so, it can be
provided for by law; but in other matters certainly, upon a fair trial before a committing magistrate, or
better still, in a perpetual session of the court, and a production of the offender, upon information before the
court, would be a move in the right direction , and a great reform to our present judicial system.
Mr. Toole, of Lewis & Clarke: Mr. President, I quite agree with the gentleman from Cascade, that this
matter does not interest exclusively the lawyers of this Convention but that it is a question that which
closely concerns every citizen of the Territory of Montana. I am not satisfied with the grand jury system,
and believe, I think with the majority of this Convention. that if not absolutely abolished, that such a
Provision should be put into the Constitution äs will authorize its assembling only in case of necessity. The
gentleman from Cascade says he can not imagine of any case where it would be absolutely necessary to call
a grand jury. Take, for instance. the suggestion, which was a potent one, by the gentleman from Gallatin
County (Judge Luce), who suggested that where a committing magistrate should after hearing the
testimony presented to him, decide that the party ought to be acquitted, and thereupon his discharge was
had. Now, everybody knows that, committing magistrates and justices of the peace are selected with[end book page 114; pdf 140/1063]
~
out reference to their qualifications, that is to say they are not selected to their being learned in the law, and
that it frequently happens to justices of the peace and committing magistrates discharge individuals accused
of crimes when subsequently grand juries not only indicted them, but they are li and convicted. Suppose
we abolish t he grand jury system entirely, and are remitted simply to this process. A man committed a
felony; a trial is had before a justice of the peace.;
to determine whether that party is guilty, and the committing magistrate decides that the party is not guilty
and he goes scot free. But aside from that, äs was suggested by Judge Dixon this morning, we are
acquainted with the decisions and rules of the common law with reference to indictments. Suppose we
absolutely abolish the grand jury system, which takes with it äs a matter of course, the indictment, and we
have nothing left but an information. That is not a proceeding at common law. It has no significance or
definition by which we are to determine what it contains, and during the period of time from which this
State shall be admitted into the Union upon the proclamation of the President of the United States, up to
and including the time that the legislative assembly shall determine. what shall constitute an information,
we will be left without any remedy or process by which criminals can be brought to justice. Aside from that
again, I believe, and my experience I think justifies me in the statement, that there are times, sir, of greatpublic excitement and popular indignation, when the passions of men and of citizens are aroused, when the
prosecuting attorney and the officers of the court need to be sustained, upheld and forfeited by an
indictment brought by a grand jury and, as was suggested, where officers themselves, the sheriff, the
constable and others in authority, shall neglect and fail to perform their duty, the fact that a grand jury can
be called by the judge of the court, is a wholesome provision, and one which would operate, l think,
properly, in forcing upon those officers the fact that there was some authority by which their acts might be
brought to the attention of the court. Now this is simply a provision, such a one as exists in several of the s
states of the Union where they have seen fit not entirely to abolish the grand jury. I believe that our
experience will be in keeping with that of the other states that have adopted this provision, that the grand
jury system will bc virtually abolished and be a dead letter but I think it .quite proper, äs suggested by all of
the gentlemen who have advocated the elimination of the grand jury system, that we keep it in reserve to
meet those conditions that we cannot at this time anticipate.
The Clerk was directed to read the substitute once more, and read it as follows:
See. 8. Criminal offenses of which justices’ courts and municipal and other courts inferior to the district
court have jurisdiction, shall be prosecuted by complaint. Criminal offenses of which the district courts
have jurisdiction shall be prosecuted by information, after examination and commitment by a magistrate,
or by leave of the court, or by indictment without such examination or commitment or without such leave
of court. A grand jury shall consist of seven persons. of whom five must concur to find an indictment. A
grand jury shall only be drawn and summoned when the district court judge shall, in his
Mr. Clark of Silver Bow: Mr. Chairman, I have. no desire to take up the time of the Convention
ject this morning, but I wish simply to say a word, and I believe I am entitled to close t this debate. If I held
to the principles advocated by the gentleman from Deer Lodge and the gentleman who has just addressed
you, from Lewis & Clarke, I should certainly be in favor, not of the substitute offered by the gentleman
from Silver Bow, but should be in favor of the clause as reported back to the Committee on the Preamble
and Bill of Rights. Their arguments have tended in the direction of supporting that proposition, and not the
substitute offered by gentleman from Silver Bow. which, as I take it, is simply a little reserve to be held in
cases of emergency if the emergency should ever arise. Now, these gentlemen are arguing upon the main
proposition and not upon the substitute. I have no disposition, gentlemen. to cling to the memories of the
past. I know we are apt to cling with veneration which have the dust of time upon their brows , and while
[end of book page 115]
[116]; 141/1063]
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I am willing to give due credit to those immortal ancestors who framed the Constitution of the United
States, we must bear in mind that they lived in an age different from this that they had just emerged from a
monarchial government and that we have made the progress, and a remarkable progress, of almost a
century and we must recollect that they lived in a time and in an age when human slavery was recognized
almost all over this country; at a time when a respectable community, a peaceable, intelligent, well
educated community in Massachusetts, directed the burning of people for witchcraft; and I say that we have
advanced from that period, and this country has seen a remarkable and wonderful development, and why
should it not in these matters which pertain to the judiciary of this country? I have not heard a single
argument advanced by these gentlemen that is, in my mind, conclusive that the dark blotch upon American
civilization should be retained in the judiciary of this country. If we were to narrow down the information
to the prosecuting officer it mighi be different; but I understand it is the contemplation of this measure that
any man may lay an information against a criminal and have him arrested. This simply procedure, . äs I
understand it, that the discretion of the Judge, should emergency arise, a grand jury may be impanelled to
investigate measures of this kind. Now it has been stated that there are several states-- I believe the
state of Wisconsin, if I am not misinformed, and the state of
California-- have adopted provisions very similar to this which we shall adopt if the substitute of the
gentleman shall prevail; but we arc informed here that there has been no opportunity presented, and
and no occasion presented for calling this grand jury into requisition in the state of Wisconsin; and I
believe, gentlemen, that the time has come when we should discard this grand jury system. It is
cumbrous, it is expensive, it is inquisitorial, it is ex parte, it is one of the remnants öf barbarism that has
been entailed upon the institutions of this country: and I, for one, am ready to believe in the intelligence and
integrity and the good sense of the people of Montana and I say t h a t, while these people have been
hesitating to throw this odious proposition overboard, although they have almost concluded to do so, let
Montana take a forward step and cut the thread that binds us to the barbarous past.
Mr. Sargent, of Silver Bow: Mr. Chairman, I have listened with a great deal of interest to this grand jury
discussion, and I have learned more about it than I ever knew before. It is true that some of the information
gained does not collide with my observation or experience. I had no idea that the grand jury system was
such a system or odious antiquity, devouring the reputations of innocent people. l have been an grand juries
of different kinds, and l cannot recall any instance where any innocent person has been injured. I can recall
a great many instances where there has been a failure to bring guilty ones to justice, where the evidence
was not sufficient to convict. I have listened to the charges of the great crimes that have been committed in
the name of the grand jury against innocent persons, l have gone back in my mind and peered into the past
to see if I could recall any instance of that kind, and t have failed to do so. I have also been surprised to
hear that the grand jury system is a relic of barbarism. I am not very well- versed in history, but I had an
idea that grand jury system was the outgrowth and result of the Magna Charta, that great charter which was
wrested by the barons of England from the king. in the 12th or 13th century, and was the first mortal blow
to the idea of divine right of kings, and all was the wedge which has grown and spread and resulted in the
freedom which we enjoy here. I am not who advocates that the old ways are the best because of their age;
but I believe all the established usage should be carefully weighed and considered both as its near and as its
remote results; because, if once embedded in the Constitution, it will be very difficult to expunge it, and I
think that power which it is contemplated by this resolution to take from the hands of sixteen men and put
into the hands of one man is the direction of centralization , an that would be less satisfactory and more
liable to abuse than the system now prevailing. I am not in favor, therefore, of the abolition of the grand
jury.
The Chair put the motion on the question of a substitute offered by the gentlemen from Silver Bow, Mr.
Dixon, and a division being called for, the substitute was declared carried by a vote of 53 to 10.
[section 8 debate ends 141 /1063; document is transcribed from PDF file and hand-typed; accuracy is not
guaranteed- see 1063 page PDF file for original text ]
~
[1890] STATE, Appellant, v. AH JIM, Respondent.
[First important Montana supreme court case on Indictment v Information; 1890 Grand
jury/indictment/information case] (State v. Ah Jim, 9 Mont. 167).
Constitutional Law—Section 8, Article iii. of the Constitution interpreted—Prosecution by information.—
Section 8, article iii. of the Constitution, provides at follows: “. ... All criminal actions in the District Court,
except those on appeal, shall be prosecuted by information, after examination and commitment by a
magistrate, or after leave granted by the court, or shall be prosecuted by indictment without such
examination or commitment, or without such leave of the court.” Held, that this clause of the Constitution
did not execute itself, and before it could be carried into effect, the exercise, jurisdiction, and limitations of
the procedure, and the rights and pleadings of the State and accused, must be defined by the legislative
department.
Same—Grand jury. — Section 8, article iii. of the Constitution, provides as follows: “.... A grand jury shall
consist of seven persons, of whom five must concur to find an indictment.” Ibid, that this clause of the
Constitution executes itself, and in the absence of further legislation, all offenses of the grade of felonies, or
having their origin in the District Court, must be inquired into under the provisions of the Criminal Practice
Act relative to indictments.
Same — Ex post facto law. — Held, also that the substantial rights of the accused would not be prejudiced
by the submission of his case to the grand jury created by the Constitution, and that the above section of the
Constitution was not ex post facto.
Appeal from First Judicial District, Lewis and Clarke County.
The defendant was prosecuted by information filed by the county attorney. A motion to quash the
information on the ground that the county attorney had no authority to make or file it was sustained by
Hunt, J.
Henri J. Haskell, Attorney-General, C. B. Nolan, of counsel, for State, Appellant.
1. Section 1, page 118 of the Laws of the Sixteenth Session, defines the duties of county attorney, and,
among other things, empowers him to prosecute all public prosecutions. Section 8, article iii. of the
Constitution, provides that all criminal prosecutions shall be prosecuted by information.
2. An information is an accusation or complaint exhibited against a person for some criminal offense. (4
Blackst. Com. 408, 409.) Section 20 of the fifth division of the Compiled Laws of Montana provides that
the common law of England, in so far as it is applicable, and not in conflict with statutory enactment, shall
be considered as of full force and effect. A proceeding upon information, having a well-settled and
established standing at common law, under this provision, could be carried into effect; as it is a well-settled
principle that when a legal proceeding is adopted, it is adopted with all the incidents which appertained to it
at common law, except in so far as they may be in conflict with our form of government.
3. Without statutory authority conferred upon the county attorney to file an information, under the rules of
the common law he would be the officer to whom was delegated that power. (Territory v. Cutinola, New
Mexico, 1887, 14 Pac. Rep. 809; State v. Nulf, 15 Kan. 404.) The next question which arises, is this
proceeding in the nature of an ex post facto law, or, if not such, being retroactive, does it operate to divest
vested rights? A law changing the mode of procedure is not ex post facto. (Cooley’s Constitutional
Limitations, 331; State v. Manning, 14 Tex. 402; Colder v. Bull, 3 Dall. 390; 7 Am. & Eug. Eucyc. of Law,
531; Perry v. Commonio. 3 Gratt. 632; State v. Ryan, 13 Minn. 371; Uatzky v. People, 29 N. Y. 124.)
There is no such thing as a vested right to a particular remedy. (People v. Mortimer, 46 Cal. 114; People v.
Campbell, 69 Cal. 243; 43 Am. Rep. 257.)
A. J. Graven, and C. C. Newman, for Respondent.
Prosecution by information is in derogation of the common law, and a departure from the general policy of
the law. (10 Am. & Eng. Encyc. of Law, p. 456; Wharton’s Criminal Practice and Pleading, § 86;
Blackstone [Cooley], book 4, ch. 23; Slate v. Boswdl, 104 Iud. 546.)
The common law prescribes no form of pleading in cases of information in felony cases, nor by whom
subscribed, or by whom made and presented. “The forms of pleading in criminal actions in the District
Court, and the rules by which the sufficiency of pleading is to be determined, are those herein prescribed.”
“The only pleading on the part of the Territory is the indictment.” (§§ 162,163, Comp. Stats, div. 3.) “All
criminal actions .... shall be prosecuted by information.” (Const, art. iii. § 8.)
The county attorney then must get his authority, if any he has, from the statutes of Montana, or from the
Constitution. It cannot come from the statute, for at the time these laws were passed no such thing as an
information was known to our laws, and could not have been in the mind of the legislator at the time the
law was enacted. Then it must come, if at all, from the Constitution, and that is silent. He cannot get his
authority by implication.
Neither the common law nor the statutory law, or Constitution of Montana, prescribe the form of an
information in case of felony, or by whom it is to be subscribed, or how presented.
The provision of our Constitution is inoperative, and must have the vitalizing strength of additional
legislation before it can have any force or effect.
Statutes in derogation of the common law are to be strictly construed. (Bishop’s Criminal Practice, §§ 119,
155; Sibley v. Smith, 2 Mich. 480; Sugar v. Sackett, 13 Ga. 462; Rathbun v. Acker, 18 Barb. 393.)
The law as to information cannot apply to crimes committed and proceeded against before the adoption of
the Constitution. as to such cases it is ex post facto. (People v. Tisdale, 57 Cal. 104; Kring v. Missouri, 107
U. S. 221, and cases cited therein.)
Penal statutes are to reach no further than their words; no person can be subject to them by implication; and
all doubts concerning their interpretation are to preponderate in favor of the accused. (Bishop on Statutory
Crimes, 104.) We contend that this information must be quashed, and this case be presented, if at all, by an
indictment from a grand jury.’
BLAKE, C. J. — This is an appeal from the order of the court below sustaining the motion of the
respondent to quash the information which was filed December 3, 1889, by the county attorney of the
county of Lewis and Clarke. The respondent is charged with the commission of the offense of murder in the
first degree upon the twenty-fifth day of August, 1889. After the arraignment of the accused a motion was
made by his counsel, and sustained by the court, to quash the information, “because the county attorney in
and for Lewis and Clarke County, Montana, had no authority to make or file the said information in the
said action.”
It is admitted that the State of Montana was legally organized on the eighth day of November, 1889, and
that the crime which is described in the information was committed within the Territory of Montana. The
questions which have been discussed on this hearing relate to the interpretation of the following clause of
the eighth section of the third article of the Constitution: “All criminal actions in the District Court, except
those on appeal, shall be prosecuted by information after examination and commitment by a magistrate, or
after leave granted by the court, or shall be prosecuted by indictment without such examination or
commitment, or without such leave of the court. A grand jury shall consist of seven persons, of whom five
must concur to find an indictment. A grand jury shall only be drawn and summoned when the district judge
shall, in his discretion, consider it necessary, and shall so order.”
In the States which are governed by constitutions containing similar provisions regarding the procedure by
information, statutes have been enacted to enable the courts to secure their enforcement. The legislative
assembly of Montana have not passed any law of this nature, although it is contended that the same result
has been attained by the adoption of the common law of England, when the same “is applicable and of a
general nature, and not in conflict with special enactments.” (Comp. Stats, div. 5, § 201.) This position is
unsound, for two reasons. The Criminal Practice Act provides ample remedies for the execution of criminal
laws, and necessarily conflicts with the proceedings by information at common law. In the next place, the
use of this remedy has been limited to certain cases, and has not embraced felonies. Blackstone treats of
this subject, and says: “There can be no doubt but that this mode of prosecution by information or
suggestion, filed on record by the king’s attorney-general, or by his coroner or master of the crown office in
the court of king’s bench, is as ancient as the common law itself. .... But these informations, of every kind,
are confined by the constitutional law to mere misdemeanors only; for, wherever any capital offense is
charged, the same law requires that the accusation be warranted by the oath of twelve men before the party
shall be put to answer it.” (4 Blackst. Com. 309, 310.) In Ex parte Wilson, 114 U. S. 423, Mr. Justice Gray
delivers the opinion, and says: “By the law of England, informations by the attorney-general, without the
intervention of a grand jury, were not allowed for capital crimes, nor for any felony, by which was
understood any offense which at common law occasioned a total forfeiture of the offender’s lands or goods,
or both.”
There are some provisions of the Constitution which have a direct bearing upon the case at bar, and should
be considered. “No person shall be deprived of life, liberty, or property without due process of law.” (Art.
iii. § 27.) “All laws enacted by the legislative assembly of the Territory of Montana, and in force at the time
the State shall be admitted into the Union, and not inconsistent with this Constitution, or the Constitution or
laws of the United States of America, shall be and remain in full force as the laws of the State until altered
or repealed, or until they expire by their own limitation.” (Section xx. Schedule, § 1.) “No crime or criminal
offense committed against the laws of the Territory of Montana shall abate, or in any wise be affected, by
reason of the change from a territorial to a State form of government; but the same shall be deemed and
taken to be an offense against the laws of the State, and the appropriate courts of the State shall have
jurisdiction over, and to hear and determine, the same.” (Section xx. Schedule, § 1.) “Prosecutions for
criminal offenses against the laws of the Territory of Montana, pending at the time the State shall be
admitted into the Union, shall not abate; but the same shall continue and be prosecuted in the name of the
State of Montana, and the title of every such action shall be changed to conform to this provision.” (Section
xx. Schedule, § 7.) “Parties who at the time of the admission of the State into the Union may be confined
under lawful commitments, or otherwise lawfully held to answer for alleged violations of any of the
criminal laws of the Territory of Montana, shall continue to be so confined or held until discharged
therefrom by the proper courts of the State.” (Section xx. Schedule, § 8.) The Constitution prescribes the
following rule for its construction: “The provisions of this Constitution are mandatory and prohibitory,
unless by express words they are declared to be otherwise.” (Art. iii. § 29.) We are aided in giving effect to
the foregoing sections of the Schedule by the introductory clause: “That no inconvenience may arise by
reason of changing from a territorial to a State form of government, it is declared as follows.”
It is evident that the clause of the Constitution respecting the information does not execute itself. All the
details affecting the exercise, jurisdiction, and limitations of the procedure, and the rights and pleadings of
the State and accused, must be defined by the legislative department. It has been observed that the States
which have abolished the grand-jury system have enacted laws to carry into effect this provision of the
Constitution, and the following authorities will show their importance: Rowan v. State, 30 Wis. 129; 11
Am. Rep. 559; State v. Sloan, 65 Wis. 647; Kalloch v. Superior Court, 56 Cal. 229; Hurtado v. California,
110 U. S. 516; State v. Boswell, 104 Ind. 541. In Kalloch v. Superior Court, supra, the court says: “But the
Constitution of this State has made provision for this form of prosecution, and the legislature has furnished
the machinery to enforce it. In our opinion the proceeding is a legal and constitutional one.” In State v.
Boswell, supra, the court says: “It seems clear to us that one who is tried and convicted upon an
information provided for by a constitutional State statute is not deprived of his liberty without due process
of law; for we perceive no reason for doubting the soundness of the proposition that proceedings founded
upon an information provided for by a legally enacted statute do constitute due process of law.”
The solution of the legal problem relating to the information in this case includes also the question as to the
mode of prosecuting or investigating the charge against the respondent under the State government. The
court below did not discharge the defendant, but ordered him to be remanded to the custody of the sheriff to
await its further action. When all the provisions of the Constitution which have been cited are construed
together, it will be apparent that the Criminal Practice Act relative to indictments remains in full force, with
two exceptions. The number of the grand jury has been reduced from sixteen to seven, and the concurrence
of five members is required to find an indictment. In these incidents the Constitution executes itself; and, in
the absence of further legislation, all offenses of the grade of felonies, or having their origin in the District
Court, must be inquired into in this manner.
It has been maintained that the substantial rights of the respondent will be thereby impaired, and that this
ruling, in its consequences, is ex post facto. The leading authority upon this matter is the case of Kring v.
Missouri, 107 U. S. 221. Mr. Justice Miller, in delivering the opinion of the court, declares in the following
sentence the law upon the decisive point: “Tested by these criteria, the provision of the Constitution of
Missouri which denies to plaintiff in error the benefit which the previous law gave him, of acquittal of the
charge of murder in the first degree on conviction of murder in the second degree, is, as to his case, an ex
post faeto law, within the meaning of the Constitution of the United States.” The same principle is
recognized in Hopt v. Utah, 110 U. S. 574, and it is also held that statutes which “remove existing
restrictions upon the competency of certain classes of persons as witnesses relate to modes of procedure
only, in which no one can be said to have a vested right, and which the State, upon grounds of public
policy, may regulate at pleasure. Such regulations of the mode in which the facts constituting guilt may be
placed before the jury can be made applicable to prosecutions, or trials thereafter had, without reference to
the date of the commission of the offense charged.” In People v. Campbell, 59 Cal. 243; 43 Am. Rep. 257,
the court says: “It is not an uncommon practice to change the number of grand jurors required to investigate
criminal charges, but we have never heard of the right of the legislature to make such changes questioned;
neither has it ever been claimed that the charge must be investigated by the precise number of grand jurors
of which that body was composed at the time the act was committed.” (See, also, Cooley’s Constitutional
Limitations, 272, 331, 332; People v. Mortimer, 46 Cal. 114; Bishop on Statutory Crimes, §§ 178, 180.)
Those authorities support the proposition that the substantial rights of the respondent will not be prejudiced
by the submission of his case to the grand jury which has been created by the Constitution.
It is therefore adjudged that the order appealed from be affirmed, with costs.
Harwood, J., and De Witt, J., concur
~
[1895] STATE V BRETT 16 Mont. 360, 364 (1895) Montana Reports Volume 16 [pdf 385/667]
Crim law- prosecution by information need only have one of the two methods of verifying the information,
and is not a deprivation of liberty; does not abridge the privileges guaranteed by 14th amendment .
[Brett forges a warrant from the city of Helena, adding numbers to the voucher, changing $ 7.05 to $70.50.
Brett is charged in district court; Brett motion to quash Information- did not state, etc, overruled. Brett then
files a demurrer- no jurisdiction- information does not match offense- overruled. Brett is tried and
convicted- motion to arrest judgement- overruled.]
HUNT, J.—It appears by the record that the Information upon which the defendant was convicted of the
crime of forgery was filed by leave of court. Nevertheless, it is argued, a prosecution by information, where
there h äs been no preliminary examination, IB illegal, and a violation of constitutional rights. Const., art.
III, § 8, expressly provided that “all criminal actions in the district court, except those on appeal, shall be
prosecuted by information, after examination and commitment by a magistrate, or after leave granted by the
court, or shall be prosecuted by indictment, without such examination or commitment, or without leave of
court.’” It is evident that one of the objects of the constitution was to do away, to a great extent, with the
machinery and expense of a grand jury, by substituting therefor prosecution by information. It is not
necessary, in order to vest power in the county attorney, to file an information that there shall be a
preliminary examination and commitment- He may act, after leave has been granted by the court, in a case
like the one at bar, where there may not have been any Charge or Information before a committing
magistrate.
One of two methods of procedure is indispensable where an information is filed,—either there must have
been an examination and commitment, or there must have been leave of court procured. But both steps are
not required. A plain Interpretation of the words of the constitution by which every clause of the section
quoted shall be effective leads to this conclusion. • We think, too, that the rights of a defendant are guarded,
no matter what procedure is followed.
1. Where an investigation into his guilt or innocence is had before a committing magistrate, and a
commitment is the result, such a judicial inquiry is sufficient to justify the county attorney in proceeding in
the district court without first obtaining leave of that court to file an information, formally charging the
defendant with the offense for which he was examined, or any other offense, by the facts dissclosed upon
such preliminary hearing. The protection rests in the guaranty of a right to a judicial review of the matter by
an impartial magistrate.
2. Where no examination has been had before a magistrate, and no commitment has been made, in such
case, to protect the rights of the defendant, and to guard him against oppression or malice, and to prevent
abuse of any general power vested in the county attorney, leave of the district court is necessary to be
obtained. Thus, again, there is the guaranty that a judicial order will be required before there can even be a
charge preferred. It is suggested that obtaining of a leave of the court is a mere perfunctory matter, and is
granted of course. This argument, if true, reflects credit upon the several county attorneys of the state for
having administered their offices with that high sense of impartial responsibility and power imposed upon
them by the constitution, but it loses its entire force if an instance should arise where a prosecuting officer
oppressively, maliciously or otherwise illegally should attempt to unjustly harass any citizen by filing an
Information charging him with crime. At once, upon proper showing, or doubtless by order of thfl court of
its own motion, where the court should believe that a wrong was about to be done, the leave of the court
would be suspended or denied, until an inquiry could be had into the reasons for the official acts of the
county attorney in filing the Information, and until the court was satisfied by the showing m ade that the
case was one where an Information should be filed, Tims, again, the guaranty that judicial leave will be had
before instituting a prosecution affords safety to the innocent, quite ample to prevent any abuse of the
power of the state, in the hands of a prosecuting attorney. See State v. Boswdl, 104 Ind. 541, 4 N. E. 675.
[you are hereby saved from the king’s wrath by the county attorney, or is it the other way around?]
3. Where a grand jury investigates crime, they may act independently of any preliminary charge, or without
the permission of the court. The formality of the organization of a grand jury, its well-tested utility äs an
institution of the law, its intelligence, its numbers, and its presumed impartiality, themselves are deemed
sufficient assurances that the jurors will abide by their oaths under the law to present no indictment “
through hatred, malice or ill will, nor leave any unpresented through fear, favor or affection, or for any
reward, or the promise or hope thereof.” For these reasons, doubtless, the constitution has vested this power
of indictment in the grand jury, and saw fit not to restrict their jurisdiction by any limitations other than
those usually governing the conduct of such a body.
We are cited by appellant to several cases in California, Kansas and Michigan, but none of those decisions
are applicable, because the provisions of the constitutions and Statutes of those states either limit the right
to file an Information to cases where there has been an examination and commitment by a magistrate, or
expressly prohibit that method of prosecution, unless there has been such examination and commitment.
In California, by section S, article I, of the constitution, offenses shall be prosecuted by information. after
examination and commitment; and by aoction 99» of the Code of Criminal Procedure of California, an
Information shall be set aside if, before the filing thereof, the defendant has not been legally committed by
a magistrate. (People. v. Christian, 101 Cal. 471, 35 Pac. 1043.) Procedure like that of Montana, after
obtaining leave of court, is not known to that state; and it is well to note that the annotations to sections
1730 and 1910 of the Penal Code now in force are not made with relation to the proper effect to be given to
the authorization in the constitution of Montana permitting informations to be filed where leave of court
has been obtained, without regard to whether there has been any preliminary examination before a
magistrate.
In Kansas, it is also expressly provided by Statute (paragraph 5133, Gen. St. ISSi)) that ‘• no information
shall be filed against any person for any felony until such person shall have had a preliminary examination
therefore, as provided by law, before a justice of the peace, or other examining magistrate or officer, unless
such person shall waive his right to such examination,” etc.
In Michigan, it is provided by section 9555, page 2299, How. Ann. St., that no information shall be filed
until there has been a preliminary examination, unless such person shall waive his right to such
examination. (People v. Evans, 72 Mich. 367, 40 N. W. 473.)
Appellant raises the additional point that even if the constitution of the state does authorize prosecution by
information without preliminary examination having been had, where leave of court is first obtained, such a
proceeding is a deprivation of the liberty of the citizen, without due process of law, and is an infringement
abridging the privileges and immunities of citizens of the United States, as guaranteed by the fourteenth
article of the amendment of the constitution of the United States.
The supreme court of the United States, in Hurtado v. People, 110 U. S. 534, 4 Sup. Ct. 111, 292, affirmed
the doctrine laid down in the earlier ease of Davidson, v. New Orleans, 96 U. S. 97, that “it is not possible
to hold that a party has, without due process of law, been deprived of his property when, äs regards the
issues affecting it, he has, by the laws of the state, a fair trial in a court of justice, according to the modes of
proceeding applicable to such a case.” “In the fourteenth amendment/’ speak the court, “ by parity of reason
due process of law refers to that law of the land in each state which derives its authority from the inherent
and reserved powers of the state, exerted within the limits of those fundamental principles of liberty and
justice which lie at the base of all our civil and political institutions, and the greatest security for which
resides in the right of the people to make their own laws, and alter them at their pleasure.” “ It follows that
any legal proceeding, enforced by public authority, whether sanctioned by age and custom, or newly
devised in the discretion of the legislative power in furtherance of the general public good, which regards
and preserves these principles of liberty and justice, must be hold to be due procesa of law.” And, again, the
Anne court, in IMUnger v. Davis, 146 U. S. 314, 13 Sup. Ct. 105, decided that a Statute of New Jeraey
con-ferring upon one charged with crime the right to waive a trial by jury, and to elect to be tried by the
court, and conferring power upon the court to try the accused in such case, is not in conflict with the
constitution of the United States. Justice Shiras approvingly quotes from a former decision of Justice
Bradley in Missouri v. Lewis, 101 U. S. 22, as follows: “ There is nothing in the constitution to prevent any
state from adopting any system of laws or judicature it sees tit for all or any part of its territory. If the state
of New York, for ex-ample, should see fit to adopt the civil law and its method of procedure for New York
City and the surrounding counties, the proceeding authorized bj the constitution in any way in-terfered with
the administration of the regular course of law, Leave of court being necessary, the individual is not
subjected to any arbitrary exercise of the powers of the state not re-strained “by the established principles
of private right and distributive justice.” (Leeper -o. Texas, 139 U. S. 462, 11 Sup. Ct, 577; Caldwdl^.
Texas, 137 U. S. 692.)
In State v. Sureties of Krohne (Wyo.) 34~Pac. 3, Groesbeck, C. J., in a learned opinion, analyzes a former
Statute of that state, which authorized a prosecuting officer, with out any authority of the court first being
obtained, to file an information, and comes to the conclusion that, although the provision was an extreme
one, yet it did not conflict with the constitutional safeguards thrown about every citizen of the state. It is
un-necessary for this court to pass upon such a Statute, or an equally liberal Statute to be found in the state
of Washington, and criticised by Judge Handford in Be flwmoson, 46 Fed. 388, or the laws of other states
which permit informations to be filed without the leave of court first obtained. See, on this point, Smart v.
Ximball, 43 Mich. 443, 5 N. W. 635, and cases cited in the opinion of Grossbeck, C. J., supra. It would
seem, too, that there is much more room for argument against the validity of a Statute where the county
attorney may proceed without leave of court than where such leave is a pre-requisite to filing an
Information. But if, äs is held in several of the decisions cited, there is no infringement upon rights where
no leave is required, and no examination need be had, a fortiori can it be said that none are denied where a
court must exercise a control over the action of the county attorney.
The point that a city warrant is .not the subject of forgery is not well taken. The Statute makes it forgery to
“falsely make, alter, forge, or counterfeit any * * * writing obligatory, draft, * * * contract,” etc. (Comp. St.
div. 4, c. 7. § 96.) A city warrant or order, regular on its face, and apparently drawn according to law on the
city treasurer, signed by the mayor of the city, and countersigned by the city clerk, for the payment of
moneys out of a specific fund, is a draft. (Daniel, Neg. Inst. §§ 427, 428.) It is there-fore made the subject
of forgery by the statute quoted.
The warrant is not illegal upon its face. On the contrary, it purported to be good and valid for the purposes
for which it was made. On its face it would have the effect to defraud those who might act upon it äs
genuine. Therefore, if it was altered with intent to defraud on the part of the defendant, the crime of forgery
was complete. (People v. Ji&by, 91 Cal. 470; State v. Vineyard, ante page 138; 2 Bish. Gr. Law, §§ 523,
533.)
Appellant finally argues that he ought to have been permitted to prove that the warrant was void, because
the city of Helena had exceeded the constitutional limit of its indebtedness at the time the draft in question
was issued. This argument is well answered by the observations of the supreme court of California in
People v. Munroe, 100 Cal. 664. In that case Üie defendant was convicted of forgery. The writing was an
assignment of the unearned salary of a public school teacher for the next ensuing month, together with an
Order on the city auditor of Los Angeles for the warrant representing such salary. It was claimed that the
purported author of the writing, beäug a public school teacher, was a public officer, and that the sale or
assignment of an unearned salary by a public officer was void, being against public policy, and, the writing
being void, it could not be the basis of a charge of forgery. The court held that the writing was the subject
of forgery, and, in discussing obligations ultra vires said ultra vires [beyond powers?] Obligations ultra
vire stand upon the same level with contracts against public policy äs to the offense of forgery. If one is not
the subject of forgery, neither is the other. In England, corporations are created by special acts of
parliament. Within those acts are found the measures of their powers. In this country, the general Statutes,
in connection with the articles of incorporation, which are public records, form the limitation of their
powers. Ths, the world deals with corporations with a knowledge of the extent of their powers, and
ignorance of the law forms no defense to the plea of ultra vires. f this appellant’s position be sound, all
contracts of corporations which are ultra vires are not the subject of forgery. Neither would bonds of
municipal corporations which are ultra vires form the foundation for a prosecution for forgery. The
determination of the powers of corporations, both private and municipal, is a question often involving the
most complex principles of legal jurisprudence; and, if ultra, vires contracts may not be forged, a rich field
for the successful practice of fraud is presented to the forger. JD State v. Kodes, 68 Mo. 150, 30 Am. Rep.
780. it is said that the fraudulent making of a false municipal certificate of indebtedness is forgery, though
the municipality had no power to issue such certificate; and this principle is in line with sound reason, and
fully commends it-self to our views. It is held that contracts made under an un-constitutional law are void.
Every man ie presumed to know the law, and appellant’s contention would free the criminal forging such a
contract. (Vilhacv. Sailroad Co., 53 Cal. 208.) In other words, it would be a good defense to a prosecution
for forgery that the law under which a genuine contract similar to the forged one might be made is
unconstitutional. Such a plea is too remote from the crime of which the accused Stands charged, and bis
liberty must be regained on more substantial grounds. Äs to what contracts are against public policy, or
ultra, vires, or void äs creations under unconstitutional Statutes, we think matters entirely foreign to a
prosecution for forgery. In the examination of such grave and abstruse questions, the criminal element of
the case would soon be lost to view,”
We find no error in the case. The judgment is affirmed.
Affirmed. PEMBERTON, C. J., and DE WITT, J., concur.
[as usual- these Supremes are on both sides of the issue; Hunt says here that the constitution did away with
the grand jury AND that the grand jury is a necessary, independent body to protect our liberties. Brett
seems to be a thief that was caught red- handed; and tried some games to get away with his crime. But the
supreme court here is using this thief to stick a fork in the grand jury. The 1921 code compiler quotes this
case- but only the part about doing away with the grand jury]
Revised Code of Montana- 1921. The Montana Supreme Court addresses the issue of indictment verses
information statutes in CODE FOUR, 1921, case citations.
The clause of this section, relating to prosecutions of criminal actions by information, did not execute itself,
and before it could be carried into effect, the exercise, jurisdiction, and limitations of the procedure, and the
rights of the state and accused, must be defined by the legislative department. State v. Ah Jim, 9 Mont. 167,
172; 23 Pac. 76.
[1895] 1895 Revised Code of Montana on Grand jury
1211/1414 [book page 1444] grand jury sections 1750-1764.: district judge in control of seven members.
Members can be challenged according to statute. Judge empanels seven, appoints foreman, sets rules and
charges the jury with a duty to follow statute. Panel is sworn to an oath, and seated. The judge controls all
evidence to the grand jury, and statute advises them that they “are not bound to hear evidence for the
defendant, but may do so,”…
1213/1414 indictment and information; several statutes directing inquiries by grand jurors; “Sec 1786. The
grand jury must inquire into the case of every person imprisoned in the jail of the county on a criminal
charge, and not indicted, or against whom an information has not been filed; into the condition and
management of the public prisons in the county, and into the willful and corrupt misconduct in office, of
public officers of every description, within the county. Free access to prisons and public records. The grand
jury can ask for advice from the judge, if not the judge is excluded. Statute controls whom may be present:
everyone but the county attorney and approved witnesses are excluded. Grand juries are secret and no
questions can be asked of the members. Members can be charged with contempt of the trial court.”
1214/1414 rules of pleading info/indictment sections 1810-1861 of 1895 RCM
1218/1414 arraignment
1220/1414 set aside indictment or information
1220/1414 demurrer
1222/1414 four pleas to indictment or information
1223/1414 info or indictment against judge; change of place of trial
[end of 1895 statutes]
[1907] Revised Code of Montana 1907 - grand jury in constitution only
Constitution of Montana
Section 8 Criminal offenses of which….[case law on grand jury as of 1907- exact copy of the 1889
constitution:]
Section. 8. Criminal offenses of which justice’s courts and municipal and other courts, inferior to the
district courts, have jurisdiction, shall, in all courts inferior to the district court, be prosecuted by complaint.
All crim- inal actions in the district court, except those on appeal, shall be prose- cuted by information,
after examination and commitment by a magistrate, or after leave granted by the court, or shall be
prosecuted by indictment without such examination or commitment, or without such leave of the court. A
grand jury shall consist of seven persons, of whom five must concur to find an indictment.
A grand jury shall only be drawn and summoned when the district judge shall, in his discretion, consider it
necessary, and shall so order.
Nine cases as of 1907 [pdf 85/1976]
-Ah Jim- 9 Mont. 167; did not execute itself
-King- 9 Mont. 450; judge correct
-Kingsley 10 Mont. 537; indictment pre-statehood; information post statehood (1889)
-Brett- 16 Mont. 360 information examination and commitment (1895)
-Bowser 21 Mont. 134 cite not given (ca 1898)
-Morris 22 Mont. 43 cite not given
-State v Spotted Hawk 22 Mont 43; 55 pac 1027 A defendant is not entitled to be committed by a
magistrate before he is informed against, and the information need not show on its face that it was filed by
leave of the court. (January 1899)
-State v Court 24 Mont. 35; 60 Pac 494 A contempt of court is not a criminal offense to be prosecuted as
laid down in this section.
-State v Judges 30 Mont 198; 76 Pac 11. [unknown- nothing written probably about 1904]
[As of 1907- no actual grand jury cases since Kingsley 1889 and Ah Jim 1890]
RCM 1907 Index [1890/1976]
“grand jury” not mentioned in index under ‘grand’ or ‘juries’; “indictments” not mentioned (1891/1976)
[end of 1907 Revised Code of Montana]
[1921] Revised Code of Montana- 1921. The Montana Supreme Court addresses the issue of
indictment verses information statutes in CODE FOUR, 1921, case citations.
The clause of this section, relating to prosecutions of criminal actions by information, did not execute itself,
and before it could be carried into effect, the exercise, jurisdiction, and limitations of the procedure, and the
rights of the state and accused, must be defined by the legislative department. State v. Ah Jim, 9 Mont. 167,
172; 23 Pac. 76.
The clause of this section relating to the grand jury executes itself, and in the absence of further legislation,
all offenses of the grade of felonies, or having their origin in the district court, must be inquired into under
the provisions of the Criminal Practice Act relative to indictments. State v. Ah Jim, 9 Mont. 167, 172; 23
Pac. 76.
In a prosecution for murder, the substantial rights of the accused were not prejudiced by the submission of
his case to the grand jury created by the constitution, and the clause of this section t the number of jurors
composing that body is not ex post facto. State v. Ah Jim, 9 Mont. 167, 172; 23 Pac. 76.
The provision of the constitution relating to prosecution by information is not self-executing, and in the
absence of legislation defining the procedure, a trial and conviction upon information is without process of
law. In re Durbon, 10 Mont. 147, 148, 25 Pac. 442. [PDF 76/2293, Pol C.1921 RCM].
A conviction in a court of the state for a felony committed in the territory prior to the adoption of the
constitution cannot be sustained where the prosecution was by information, as provided for by the
constitution and act of March 2, 1891, relating thereto, as the provision of the federal constitution
guaranteeing to the accused the right to be prosecuted through the intervention of the grand jury was, at the
time of the commission of the offense, the supreme law of the land, and the substitution by the state
constitution of prosecution by information in place of that by indictment, not being a matter affecting the
procedure, deprived the accused of a substantial right, and gave said act a retrospective operation. State v.
Kingsley, 10 Mont. 537, 545, 26 Pac. 1066. [PDF 76/2293, Pol C.1921 RCM].
One of the objects of the constitution was to do away, to a great extent, with the machinery and expense of
a grand jury, by substituting therefore prosecution by information. It is not necessary, in order to vest
power in the county attorney to file an information, that there shall be a preliminary examination and
commitment. He may act, after leave has been granted by the court, in a case where there may not have
been any charge or information before a committing magistrate. State v. Brett, 16 Mont. 360, 364. 40 Pac.
873; State v. Bowser, 21 [1898] Mont. 133, 135, 53 Pac. 179. [PDF 76/2293, Pol C.1921 RCM].
Under this section, either there must have been an examination and commitment, or leave of the court
procured, but both steps are not required. State v. Brett, 16 Mont. 360, 364. 40 Pac. 873.
[1928] Webster Dictionary 1928 page 1173 ‘jury’ (in part):”The essence of the jury - if we use the term
jury in its widest sense that can be given to it- seems to be this: a body of neighbors is summoned by some
public officer, to give upon oath a true answer to some question. The question may take different forms: it
may or may not be one which has arisen in the course of litigation; it may be a question of fact or a
question of law, or again what we should nowadays a question of mixed fact and law…”
Webster Dictionary 1928 ‘grand jury’ page 940 (in part): Law In England, the body of not less than twelve
and not more than twenty-three good and lawful men of a county who are returned by the sheriff to every
session of the peace and of the assizes, whose duty it is, in private session, to examine into accusations
against persons charged with crime, and if they see just cause, then to find bills of indictment against them,
to be presented to the court, and to act on such other public matters as may be brought before them, such as
inquires into misfeasance in office, prevalence of crime, public nuisances, etc.
[1933] Black’s Law Dictionary, Third Ed., 1933 (page 1040- in part): Grand jury. A jury of inquiry who
are summoned and returned by the sheriff to each session of the criminal courts, and whose duty is to
receive complaints and accusations in criminal cases, hear evidence adduced on the part of the state, and
find bills of indictment in cases where they are satisfied that a trial ought to be had. They are first sworn,
and instructed by the court. This is called a “grand jury” because it comprises of a greater number of jurors
than an ordinary trial jury, or “petit jury”. At common law, a grand jury consisted of not less than twelve
nor more than twenty-three men, and this is still the rule in many of the states, although in some the number
is fixed by statute. [several states listed; citations Bain 121 U.S. 1, 7 S; Gardiner 31 Misc. 364; Finlay 61
Ala 204; Duff 65 How Prac (NY) 365; English 31 Fla 340; Jones 169 Iowa, 281.
[2004]Black’s Law Dictionary, Eighth Ed., 2004. (page 719 - in part) grand jury - a body of (often 23)
people who are chosen to sit permanently for a least a month-- and sometimes a year-- and who, in ex parte
proceeding, decide whether to issue indictments. See Fed. R. Crim. P.6. if the grand jury decides that
evidence is strong enough to hold a suspect for trial, it returns a bill of indictment (a true bill) charging the
suspect with a specific crime. Also termed accusing jury, presenting jury, jury of indictment. CXf. Petit
jury under JURY.
[1864] Montana Organic Act May 26, 1864. Organic Act Section 9 (Judicial). [PDF 5 & 6/9; PDF 53 &
54/2293] And be it further enacted, That the judicial power of said ter-ritory shall be vested in a supreme
court, district courts, probate courts, and in justices of the peace. The supreme court shall consist of a chiefjustice and two associate justices, any two of whom shall constitute a quorum, and who shall hold a term at
the seat of government of said territory annually; and they shall hold their offices during a period of four
years, and until their successors shall be appointed and qualified. The said territory shall be divided into
three judicial districts, and a district court shall be held in each of said districts by one of the justices of the
supreme court at such times and places as may be prescribed by law; and the said judges shall, after their
appointments, respectively, reside in the district which shall be assigned them. The jurisdiction of the
several courts herein provided for, both appellate and original, and that of the probate courts and of the
justices of the peace, shall be limited by law: Provided, that justices of the peace shall not have jurisdiction
of any matter in controversy when the title of land be in dispute, or where the debt or sum claimed shall
exceed one hundred dollars; and the said supreme and district courts, respectively, shall possess chancery
as well as common-law jurisdiction. [clerks, writs, error, etc- no mention of grand jury, county court, or
courts of law in Organic Act].
[1866] March 5, 1866-Virginia City: First constitutional convention in Montana history, 2nd
territorial assembly; constitution written and approved by Convention; single document becomes “lost”.
1866- April 9, Helena: 2nd constitutional convention, 3rd Assembly; Second constitution is written,
approved by Assembly, and again becomes “lost”. No copy of either lost constitution exists; reconstruction
is done here by Humble O’Pinion. This is the first known attempt to reconstruct said first missing
constitution document:
[by Humble O’Pinion]: Article III- Judicial. All criminal prosecutions shall be made by indictment of a
grand jury, and in the name of the county in which the crime is to have occurred. The sheriff shall empanel
the grand jury by a venire of lawful men of said county. Once empanelled, the grand jury may utilize any
procedure necessary, according to their common knowledge and experience.
There shall be one supreme court within each county; to be held at the seat of the county. The court shall be
known as “the ________ county court.” The sheriff of said county shall empanel the court by a venire of
lawful men of his county. Once empanelled, the trial court may determine any procedure, law, fact or
punishment by their common knowledge and experience.
The county court shall be the court of first and last resort, and no tribunal may question their finding.
Jurisdiction. The Court shall exercise exclusive jurisdiction in all matters of Law and all matters of Equity
properly before it, in cases and causes arising within the said county. The moving party shall bond all suits
at equity initiated in the county court, in the amount of twice the value of the suit. If the moving party does
not prevail, the bond may be forfeited.
Rights of the accused: All persons have the right to be informed of the nature of the cause against him; to
be afforded recognizance if the Court is not in session; to have a speedy and fair trial; to be confronted by
his accuser; to bring witnesses and evidence in his own defense and to be brought before the grand jury or
county court at his demand.
Law not written. In any case where the Law is questioned, the decisions made shall be in compliance with
the common law of Montana, as told by the grand jury and county court. (End of Humble’s reconstructed
judicial portion of the constitution of 1866). ]
[1867] 1867 March 2, 1867: five important bills passed: 1. US senate bill s501, amending Montana Organic
Act of 1864. In this debate, the U.S. Senate condemns both Montana constitutional conventions of 1866
(Lost I & II), and offers an expanded probate court to the new territory, in lieu of any county court of
common law that may have recently been disposed of.
Statutes 2, 3, 4 and 5 are called “Reconstruction #1”, 14 Stat. 428-430 (government for Rebel States),
c.153; 3. 14 Stat 541 (public land-county court dispersal).
Under Senate Bill 501 (Montana Organic Act of 1864 amended- Act of March 2, 1867), sections 1
through 7, Senate journal of February 25, 1867, page 1816- after the text of the Organic Act (Section 1-5),
we find:
§ 6. And be it further enacted, That all acts passed at the two sessions of the so-called legislative assembly
of the territory of Montana, held in eighteen hundred and sixty-six, are hereby disapproved and declared
null and void, except such acts as the legislative assembly herein authorized to be elected, shall by special
act, in each ease, re-enact: Provided, however, That in all the claims of vested rights thereunder, the party
claiming the same shall not, by reason of anything in this section contained, be precluded from making and
testing said claim in the courts of said territory: And provided further, That no legislation or pretended
legislation in said terri-tory since the adjournment of the first legislative assembly shall be deemed valid
until the election of the legislative assembly herein provided for shall take place. [After last section (8)]
Approved March 2, 1867.
On the same day that s501 passed (March 2, 1867), the U.S. congress acknowledged the power and
validity of the local county court: [another] act of March 2, 1867, entitled ‘An Act for the relief of the
inhabitants of cities and towns upon the public lands,’ approved March 2, 1867 (14 Stat. 541): Whenever
any portion of the public lands of the United States have been or shall be settled upon and occupied as a
town site, and therefore not subject to an entry under the agricultural pre-emption laws, it shall be lawful, in
case such town shall be incorporated, for the corporate authorities thereof, and if not incorporated, for the
judge of the county court for the county in which such town may be situated, to enter at the proper landoffice and at the minimum price, the land so settled and occupied, in trust for the several use and benefit of
the occupants thereof, according to their respective interests, the execution of which trust, as to the disposal
of the lots in such town and the proceeds of the sales thereof, to be conducted under such rules and
regulations as may be prescribed by the legislative authority of the State or Territory in which the same
may be situated, &c.~
The public lands relief statute (14 Stat 541) is technically not a part of Reconstruction, because its subject
matter concerns the dispersal of public lands in the Territories, and says nothing about the 10 Rebel States.
Similarly, the amendatory Territory of Montana statute of March 2, 1867, would not be a part of
Reconstruction, because it says nothing about Rebel States. But all three acts were passed on the same day,
in 1867.
Probate expanded. 39th U.S. Congress, Senate Bill 501 (s501) introduced January 11, 1867; reported
January 24, 1867; recommitted February 13, 1867; reported February 14, 1867; approved March 2, 1867:
AN ACT amendatory of “An Act to provide a temporary Government for the Territory of Montana,” May
26, 1864 [Organic Act (1921 reprint) 57/2293; amended by s501, March 2, 1867].
§ 2. That the probate courts of the territory of Montana, in their respective counties, in addition to their
probate jurisdiction, are hereby authorized to hear and determine civil causes wherein the damage or debt
claimed does not exceed five hundred dollars, and such criminal cases arising under laws of the Territory as
do not require the intervention of a grand jury; Provided, that they shall not have jurisdiction of any matter
in controversy when the title or right to peaceable possession of land may be in dispute, or of chancery or
divorce cases; and in all cases an appeal may be taken from any order, judgement or decree of the probate
courts to the district court.
[ the words ‘hereby’ and ‘Provided’ added after original version]
[1868] FORTIETH CONGRESS. SESS II. CH 53. 1868 CHAP LIII- An Act to amend as Act entitles “An
Act for the Relief of the Inhabi-tants of Cities and Towns upon public Lands,” approved March two,
eighteen hundred and sixty-seven.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress
assembled, that the inhabitants of any town located on the public land of the United States may avail
themselves, if the town authorities elect to do so, of the provisions of the act of March two, eighteen
hundred and sixty-seven, entitled “An Act for the Relief of the Inhabitants of Cities and Towns upon public
Lands:” Provided, This act shall not prevent the issuance of patents to persons who have made, or may
make, entries and elect to proceed under existing laws: And provided further, That no tittle under said act
of March two, eighteen hundred and sixty-seven, shall be acquired to any valid mining claim or possession
held under the existing laws of Congress : Provided also, that in addition to the minimum price of the lands
included in any town site entered under the provisions of this act and “An Act for the Relief of the
Inhabitants of Cities and Towns upon public Lands,” approved March two, eighteen hundred and sixtyseven, there shall be paid by the parties availing themselves of the provisions of said acts all costs of
surveying and platting any such town site, and expenses incident thereto, incurred by the United States,
before any patent shall issue therefor.
APPROVED, June 8, 1868.[margin note] 1867 Ch. 177 Vol. XIV p.641 [ 641-might say 541, but sure
looks like 641]
source: my document 6-8-1868 ch 53 from LOC.
Organic Act amended- March 2, 1867, Under Senate Bill 501, sections 1 through 7, Senate journal
of February 25, 1867, page 1816- after the text of the Organic Act (Section 1-5), we find:
§ 6. And be it further enacted, That all acts passed at the two sessions of the so-called legislative assembly
of the territory of Montana, held in eighteen hundred and sixty-six, are hereby disapproved and declared
null and void, except such acts as the legislative assembly herein authorized to be elected, shall by special
act, in each ease, re-enact: Provided, however, That in all the claims of vested rights thereunder, the party
claiming the same shall not, by reason of anything in this section contained, be precluded from making and
testing said claim in the courts of said territory: And provided further, That no legislation or pretended
legislation in said terri-tory since the adjournment of the first legislative assembly shall be deemed valid
until the election of the legislative assembly herein provided for shall take place. [After last section (8)]
Approved March 2, 1867. On the same day that s501 passed (March 2, 1867), the U.S. congress
acknowledged the power and validity of the local county court: [another] act of March 2, 1867, entitled ‘An
Act for the relief of the inhabitants of cities and towns upon the public lands,’ approved March 2, 1867 (14
Stat. 541): Whenever any portion of the public lands of the United States have been or shall be settled upon
and occupied as a town site, and therefore not subject to an entry under the agricultural pre-emption laws, it
shall be lawful, in case such town shall be incorporated, for the corporate authorities thereof, and if not
incorporated, for the judge of the county court for the county in which such town may be situated, to enter
at the proper land-office and at the minimum price, the land so settled and occupied, in trust for the several
use and benefit of the occupants thereof, according to their respective interests, the execution of which
trust, as to the disposal of the lots in such town and the proceeds of the sales thereof, to be conducted under
such rules and regulations as may be prescribed by the legislative authority of the State or Territory in
which the same may be situated, &c.~
[1867] Reconstruction #1. Four U.S. statutes known as ‘Reconstruction Acts’: March 2, 1867, 14 Stat.
428-430, c.153; March 23, 1867, 15 Stat. 2-5, c.6; July 19, 1867, 15 Stat. 14-16, c.30; and March 11, 1868,
15 Stat. 41, c.25. The actual title of the initial legislation was “An act to provide for the more efficient
government of the Rebel States” and it was passed on March 2, 1867.The first Reconstruction statute (14
Stat 428-430) concerned 10 named Rebellion states (check this).
[1867] Public Lands Relief Act. The public lands relief act (14 Stat 541), also passed on March 2,
1867 just after the Reconstruction statutes- is technically not a part of Reconstruction. Its subject matter
concerns the dispersal of public lands by probate courts in the Territories, and says nothing about the 10
Rebel States. Similarly, the Senate bill amending the Montana Organic Act- Senate Bill 501- is the third
bill passed on March 2, 1867 concerning government in Montana. This would not be a part of
Reconstruction either, because the statute says nothing about Rebel States. All three acts were passed on
the same day- March 2nd,1867.
[s501]Amendment to Organic Act, probate expanded. 39th U.S. Congress, (s501) introduced January 11,
1867; reported January 24, 1867; recommitted February 13, 1867; reported February 14, 1867; approved
March 2, 1867]:
AN ACT amendatory of “An Act to provide a temporary Government for the Territory of Montana,” May
26, 1864 [Organic Act (1921 reprint) 57/2293; amended by s501, March 2, 1867]:
§ 2. That the probate courts of the territory of Montana, in their respective counties, in addition to their
probate jurisdiction, are hereby authorized to hear and determine civil causes wherein the damage or debt
claimed does not exceed five hundred dollars, and such criminal cases arising under laws of the Territory as
do not require the intervention of a grand jury; Provided, that they shall not have jurisdiction of any matter
in controversy when the title or right to peaceable possession of land may be in dispute, or of chancery or
divorce cases; and in all cases an appeal may be taken from any order, judgement or decree of the probate
courts to the district court. [ the words ‘hereby’ and ‘Provided’ added after original version]
[1868] Public Lands Relief Amended. FORTIETH CONGRESS. SESS II. CH 53. 1868 CHAP LIIIAn Act to amend as Act entitles “An Act for the Relief of the Inhabi-tants of Cities and Towns upon public
Lands,” approved March two, eighteen hundred and sixty-seven:
Be it enacted by the Senate and House of Representatives of the United States of America in Congress
assembled, that the inhabitants of any town located on the public land of the United States may avail
themselves, if the town authorities elect to do so, of the provisions of the act of March two, eighteen
hundred and sixty-seven, entitled “An Act for the Relief of the Inhabitants of Cities and Towns upon public
Lands:” Provided, This act shall not prevent the issuance of patents to persons who have made, or may
make, entries and elect to proceed under existing laws: And provided further, That no tittle under said act
of March two, eighteen hundred and sixty-seven, shall be acquired to any valid mining claim or possession
held under the existing laws of Congress : Provided also, that in addition to the minimum price of the lands
included in any town site entered under the provisions of this act and “An Act for the Relief of the
Inhabitants of Cities and Towns upon public Lands,” approved March two, eighteen hundred and sixtyseven, there shall be paid by the parties availing themselves of the provisions of said acts all costs of
surveying and platting any such town site, and expenses incident thereto, incurred by the United States,
before any patent shall issue therefor.
APPROVED, June 8, 1868.[margin note] 1867 Ch. 177 Vol. XIV p.641 [ 641-might say 541, but sure
looks like 641]
source: my document 6-8-1868 ch 53 from LOC.
[1868] US CONSTITUTION amended. AMENDMENT XIV July 9, 1868. The first clause of this
amendment is the most contested legislation in the US CONST, including amendments. Here’s why:
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are
citizens of the United States and of the State wherein they reside. No State shall make or enforce any law
which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive
any person of life, liberty, or property, without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.
[Humble O’Pinion says: the shenanigans occurring from 1864 through 1868 were designed to codify the
ancient concept of the grand jury for the purpose of killing it. The First step is to knock out the county court
by literal force and omission in the statutes. Secondly, the statute writers leave the grand jury in place but
offer no proper court to hear indictments, as seen above. Third, the statute writers offer a probate and
district court to fill the void. Fourth, the statute writers neutralize the grand jury in the constitution of 1889,
by making the grand jury an option of the district court. As you might expect, the option is never utilized]
[1884] constitution of Montana 1884- ARTICLE VI. Judicial Department.
Sec. 1. The Judicial powers of the State, as to matters of law and equity, except as in this Constitution
otherwise provided, shall be vested in a Supreme Court, in district courts, county courts, justices of the
peace, and such other courts as may be created by law for cities and incorporated towns. But the Legislative
Assembly may provide for the abolition of county courts and the transfer of their probate and other
jurisdiction to the district courts, and in such case may provide that such district courts shall be always open
for the transaction of business, except on legal holidays and non-judicial days.
1884 constitution of Montana, Section 23. The right of trial by jury shall remain inviolate in criminal cases;
but a jury in civil cases in all courts, or in criminal cases not of the grade of felony, may consist of less than
twelve men, as may be prescribed by law. And the Legislative Assembly may provide by law that, in civil
cases, any number, not less than two-thirds of a jury, may find a verdict, and that such verdict, when so
found, shall betaken and held to have the same force and effect as if all of such jury concurred therein.
Hereafter, a grand jury shall consist of twelve men, any nine of whom, concurring, may find an indictment;
Provided, The Legislative Assembly may change, regulate, or abolish the grand jury system
[the phrase “grand jury system” is used frequently by legislators. The word ‘system’ is added to designate
the grand jury and the county court, as seen above]
[1889] STATEHOOD- Montana accepted by U.S. congress.
Statehood approved by President Harrison November 4, 1889 New constitution:
Constitution of 1889 ARTICLE VIII JUDICIAL DEPARTMENTS.
Section 1. The judicial power of the state shall be vested in the senate sitting as a court of impeachment, in
a supreme court, district courts, jus- tices of the peace, and such other inferior courts as the legislative
assembly may establish in any incorporated city or town.
Section. 8. Criminal offenses of which justice’s courts and municipal and other courts, inferior to the
district courts, have jurisdiction, shall, in all courts inferior to the district court, be prosecuted by complaint.
All crim- inal actions in the district court, except those on appeal, shall be prose- cuted by information,
after examination and commitment by a magistrate, or after leave granted by the court, or shall be
prosecuted by indictment without such examination or commitment, or without such leave of the court. A
grand jury shall consist of seven persons, of whom five must concur to find an indictment.
A grand jury shall only be drawn and summoned when the district judge shall, in his discretion, consider it
necessary, and shall so order.
1889 CONSTITUTION OF MONTANA Ordinance II, 1 (in part) Be it Ordained: First. That perfect
toleration of religious sentiment shall be secured and that no inhabitant of the state of Montana shall ever
be molested in person or property, on account of his or her mode of religious worship. Second. That the
people inhabiting the said proposed state of Montana, do agree and declare that they forever disclaim all
right and title to the unappropriated public lands lying within the boundaries thereof, and to all lands lying
within said limits owned or held by any Indian or Indian tribes, and that until the title thereto shall have
been extinguished by the United States, the same shall be and remain subject to the disposition of the
United States, and said Indian lands shall remain under the absolute jurisdiction and control of the congress
of the United States, that the lands belonging to citizens of the United States, residing without the said state
of Montana, shall never be taxed a higher rate than the lands belonging to residents thereof; that no taxes
shall be imposed by the said state of Montana on lands or property therein belonging to, or which may
hereafter be purchased by the United States or reserved for its use. But nothing herein contained shall
preclude the said state of Montana from taxing as other lands are taxed any lands owned or held by any
Indian who has severed his tribal relations and has obtained from the United States or from any person a
title thereto by patent or other grant, save and except such lands as have been or may be granted to any
Indian or Indians under any act of congress containing a provision exempting the lands thus granted from
taxation, but said last named lands shall be exempt from taxation by said state of Mon-tana so long and to
such extent as such act of congress may prescribe.
- State V. Geddes, 22 Mont. 68,.concern commission be alleged indictment [false summary-see below]
[1904]- State ex rel. Clark v. District Court, 31 Mont. 428, 3 Ann. Cas. 841, 78 Pac. 769. (1904) grand jury
list
[1906]- State v Lu Sing, 34 Mont. 31, 9 Ann Cas. 344, 85 Pac 521 . information good at c.l., it is sufficient
[ca 1914] - State v.Vinn, 50 Mont. 27, 34, 144 Pac. 773. indictment verses information. (ca 1914)
[1915] Montana Digest of 1915- all cases heard before supreme court up to 1915 913 page pdf grand jury
368/913; indictment 398/913; 397/913 Grand jury and indictment; information. Cases cited:
1. Ah Jim (1890) change from indictment to information
2. Little Whirlwind 22 Mont. 425
3. Indictments- Kingsley 10 Mont. 537
4. grand jury- Pendry 9 Mont 67
5. in the name of the State- Berry 45 Mont. 582
6. wrong name- Berry 45 Mont. 582
7. Body of indictment- Young 5 Mont.
8. Signature on indictment- Layne 7 Mont.; Harding 6 Mont.
9. Indorsement - Marion 14 Mont 458
10. Authority to file- Bowser 21 Mont. 133
11. Leave of court- motion to quash info- Byrd 41 Mont. 585; Martin 29 Mont. 273.
12. info filed by Leave- Spotted hawk 27 Mont. 33
13. [pdf 399/913] power to revoke info- Cain 16 Mont. 561
14. demurrer to info properly overruled- Mansfield 19 Mont. 483
15. time to file Smith 12 Mont. 378
16. form of information Stickney 29 M. 523
17. verification of information- ex rel Nolan v Brantly- 20 Mont.173
18. info sworn on belief- Shafer 26 Mont. 11
19. common-law accusations- Young; Lu sing 34 Mont. 31
20. offense charged- Bloor 20 Mont. 574
21. language in accusation- Pemberton 39 Mont. 530; Foley 44 Mont. 311
22. accessory in crime charged in info- Geddes 22 Mont. 68
1947 Revised Code of Montana 94-6301 (11806) When grand jury may be drawn. A grand jury must only
be drawn and summoned when the district judge in his discretion considers a grand jury necessary and so
shall order. History en sec 1750, Pen C. 1895; re-en Sec 9110, Rev C 1907; Re-en Sec 11806 R.C.M. 1921
94-6302 (11807) Number of grand jury. - 7; 5 to indict, hist bannack stats, etc
94-6303 (11808) state or accused may challenge grand jury hist 1871
94-6304 (11890) challenge to panel. Hist 1871
94-6305 (11810) cause of challenge to juror Hist. 1871
94-6306 (11811) manner of challenges Hist. 1895
94-6307 (11807) court decides challenges Hist1895
94-6308 (11813) new jury if court allows challenge Hist 1871
94-6309 & 10 (11814 & 16) new juror if court allows challenge Hist 1871
94-6311 (11816) court appoints foreman Hist en sec 53 p297.Bannack Stats, etc. “Grand or petty jury as
officer within constitutional or statutory provisions in relation to oath or affirmation. 118ALR 1098.”
[the foregoing citation is improperly listed under the “foreman” statute, not the oath statute, which is next.]
94-6312 (11817) Oath of grand jurors. Hist. Bannack stats.
94-6313 (11818) Charge of the court. Court explains law and duty to grand jury
94-6316 (11821) Powers of grand jury. The grand jury must inquire, under direction of the court, into all
public offenses committed and triable by indictment within the county, and return to the court any
indictment found. History en sec 143 p 212, Cod Stat 1871, etc.
94-6318 (11823) grand jury to hear legal evidence, only. Hist. 1871
94-6319 (11824) grand jury not bound to hear evidence of defendant,” but may do so”. Hist 1871
94-6322 (11827) grand jury must inquire into every imprisoned person not indicted. Hist 1871
94-6324 (11829) judge must not be present unless invited Hist 1871
94-6328 to 35 Indictments, witnesses, clerk, warrants and bail
*
[1976] - Montana State Supreme Ct.: Matter of Secret Grand Jury Inquiry, 553 P.2d 987 (1976)
[not really a grand jury case-in house cleanup- the Supremes are laughing at the concept]
[1995] Montana Code Annotated: Grand Jury
Back Up One Level in Table of Contents
~
46-11-301. Summoning grand jury.
46-11-302. Challenges to grand jury or grand jurors.
46-11-303. Foreman.
46-11-304. Appointing special prosecutor.
46-11-305. and 46-11-306 reserved.
46-11-307. Closed hearing.
46-11-308. Who may be present.
46-11-309. reserved.
46-11-310. Duties of grand jurors.
46-11-311. Charge to grand jury.
46-11-312. Repealed.
46-11-313. Subpoena of witnesses.
46-11-314. Reception of evidence.
46-11-315. Advice and assistance to grand jury.
46-11-316. Recorded proceedings.
46-11-317. Secrecy of proceedings -- disclosure.
46-11-318. Discharge of grand jury.
46-11-319. Expenses of grand jury.
46-11-320. through 46-11-330 reserved.
46-11-331. Finding an indictment.
46-11-332. Presenting the indictment.
46-11-333. Repealed.
46-11-301. Summoning grand jury. (1) A grand jury may only be drawn and summoned when the district
judge, in his discretion, considers a grand jury to be in the public interest and orders the grand jury to be
drawn or summoned. The composition and drawing of a grand jury must be in accordance with the
provisions of Title 3, chapter 15, part 6.
(2) The district judge may direct the selection of one or more alternate jurors, who shall sit as regular jurors
before an indictment is found or a grand jury investigation is concluded. A member of the jury who
becomes unable to perform the juror’s duty may be replaced by an alternate.
History: En. 95-1401 by Sec. 1, Ch. 196, L. 1967; amd. Sec. 1, Ch. 3, L. 1973; R.C.M. 1947, 951401(part); amd. Sec. 101, Ch. 800, L. 1991.
46-11-302. Challenges to grand jury or grand jurors. (1) The prosecutor may challenge the panel of a grand
jury on the ground that the grand jury was not selected, drawn, or summoned according to law and may
challenge an individual juror on the ground that the juror is not legally qualified. Challenges must be made
before the administration of the oath of the jurors, may be oral or in writing, and must be tried and decided
by the court.
(2) At any time for cause shown, the district court may excuse or discharge a juror either temporarily or
permanently, and in the latter event, the court may impanel another person in place of the juror discharged.
(3) A motion to dismiss the indictment may be based on the ground that the grand jury was not selected,
drawn, or summoned according to law or that an individual juror was not legally qualified. An indictment
may not be dismissed on the ground that one or more members are not legally qualified if it appears from
the record kept pursuant to this part that eight or more jurors, after deducting those not legally qualified,
concurred in finding the indictment. History: En. 95-1402 by Sec. 1, Ch. 196, L. 1967; amd. Sec. 2, Ch. 3,
L. 1973; R.C.M. 1947, 95-1402; amd. Sec. 102, Ch. 800, L. 1991; amd. Sec. 15, Ch. 262, L. 1993.
46-11-303. Foreman. The district court shall appoint one of the jurors to be foreman. The foreman has the
power to administer oaths or affirmations and shall sign all indictments. The foreman or another juror
designated by the foreman shall keep a record of the number of jurors concurring in the finding of every
indictment and shall file the record with the clerk of court, but the record may not be made public except on
order of the district court.
History: En. 95-1403 by Sec. 1, Ch. 196, L. 1967; R.C.M. 1947, 95-1403; amd. Sec. 103, Ch. 800, L. 1991.
46-11-304. Appointing special prosecutor. When the county attorney or attorney general is the subject of a
grand jury investigation, the district court shall appoint a special prosecutor. If a special prosecutor is
appointed, the county attorney’s or attorney general’s office may not participate in an official capacity, but
staff members may appear as witnesses. History: En. Sec. 104, Ch. 800, L. 1991.
46-11-307. Closed hearing. Subject to any right to an open hearing in contempt proceedings, the court shall
order a hearing on matters affecting a grand jury proceeding to be closed. This requirement may not affect a
defendant’s discovery rights after the filing of the indictment.
History: En. Sec. 106, Ch. 800, L. 1991.
46-11-308. Who may be present. The prosecutor, witnesses, interpreters, and a stenographer or operator of
a recording device used for the purpose of taking the evidence may be present while the grand jury is in
session. No person other than the jurors may be present while the grand jury is deliberating or voting.
History: En. Sec. 111, Ch. 800, L. 1991.
46-11-310. Duties of grand jurors. The grand jury shall inquire into those matters as directed by the court
summoning the jury and shall inquire into other matters as presented by the prosecutor.
History: En. Sec. 107, Ch. 800, L. 1991.
46-11-311. Charge to grand jury. When a grand jury is impaneled and sworn, it must be charged by the
judge who summoned it. In making the charge, the district court shall instruct the jury as to its duties and
the matters that jurors may consider. The prosecutor may bring additional matters before the grand jury that
are consistent with the original charge or that are developed during the proceedings.
History: En. 95-1404 by Sec. 1, Ch. 196, L. 1967; R.C.M. 1947, 95-1404(a); amd. Sec. 105, Ch. 800, L.
1991.
46-11-313. Subpoena of witnesses. (1) A subpoena requiring the attendance of a witness before the grand
jury may be signed and issued by the county attorney, by the foreman of the grand jury, or by the judge of
the district court.
(2) The fees and mileage of witnesses subpoenaed pursuant to this section must be the same as those for
witnesses in criminal actions.
(3) All provisions relating to subpoenas in criminal actions apply to subpoenas issued pursuant to this
section, including the provisions of Title 46, chapter 15, part 1.
History: En. 95-1407 by Sec. 1, Ch. 196, L. 1967; amd. Sec. 16, Ch. 184, L. 1977; R.C.M. 1947, 95-1407;
amd. Sec. 108, Ch. 800, L. 1991.
46-11-314. Reception of evidence. In the investigation of a charge, the grand jury shall receive no other
evidence than that given by witnesses produced and sworn before it or that furnished by legal evidence or
the deposition of a witness.
History: En. 95-1408 by Sec. 1, Ch. 196, L. 1967; amd. Sec. 17, Ch. 184, L. 1977; R.C.M. 1947, 951408(1), (2); amd. Sec. 109, Ch. 800, L. 1991.
46-11-315. Advice and assistance to grand jury. (1) The grand jury may at all times ask the advice of the
judge. Unless advice is asked, the judge may not be present during the sessions of the grand jury.
(2) The prosecutor may at all times appear before the grand jury for the purpose of giving information or
advice relative to any matter cognizable by the grand jury and may interrogate witnesses before the grand
jury whenever the prosecutor finds it necessary.
(3) Subject to the approval of the district court, the county attorney may employ a special prosecutor,
investigators, interpreters, and experts at agreed-upon compensation to be first approved by the court.
History: En. 95-1406 by Sec. 1, Ch. 196, L. 1967; amd. Sec. 15, Ch. 184, L. 1977; R.C.M. 1947, 951406(1) thru (4); amd. Sec. 110, Ch. 800, L. 1991.
46-11-316. Recorded proceedings. (1) The grand jury shall either appoint a stenographer to take in
shorthand the testimony of witnesses or the testimony must be taken by a recording device, but the record
so made must include the testimony of all witnesses on that particular investigation.
(2) The stenographic reporter or operator of a recording device shall, within 30 days after an indictment has
been found, certify and file with the clerk of the district court the shorthand notes or the recordings made
and an original transcript of the notes or recordings.
(3) An unintentional failure of any recording to reproduce all or any portion of a proceeding may not affect
the validity of the prosecution.
History: En. 95-1406 by Sec. 1, Ch. 196, L. 1967; amd. Sec. 15, Ch. 184, L. 1977; R.C.M. 1947, 95
1406(5); amd. Sec. 112, Ch. 800, L. 1991.
46-11-317. Secrecy of proceedings -- disclosure. (1) Disclosure of matters occurring before the grand jury
other than its deliberations and the vote of any juror may be made to any prosecutor or investigator of this
state and prosecutors or investigators from any other state or the federal government for use in the
performance of the prosecutor’s or investigator’s duty.
(2) A grand juror, an interpreter, a stenographer, an operator of a recording device, a typist who transcribes
recorded testimony, or the prosecutor may not disclose matters occurring before the grand jury except as
otherwise permitted by Title 46. An obligation of secrecy may not be imposed on a person except in
accordance with this section. A knowing violation of this section may be punishable as contempt of court.
(3) Disclosure otherwise prohibited by this section of matters occurring before the grand jury may be made:
(a) if directed by the district court prior to or in combination with a judicial proceeding;
(b) when permitted by the district court at the request of the defendant, upon a showing that grounds may
exist for a motion to dismiss the indictment because of matters occurring before the grand jury; or
(c) when permitted by the district court, to a defendant pursuant to a proper discovery motion.
History: En. 95-1409 by Sec. 1, Ch. 196, L. 1967; R.C.M. 1947, 95-1409; amd. Sec. 113, Ch. 800, L. 1991.
46-11-317. Secrecy of proceedings -- disclosure. (1) Disclosure of matters occurring before the grand jury
other than its deliberations and the vote of any juror may be made to any prosecutor or investigator of this
state and prosecutors or investigators from any other state or the federal government for use in the
performance of the prosecutor’s or investigator’s duty.
(2) A grand juror, an interpreter, a stenographer, an operator of a recording device, a typist who transcribes
recorded testimony, or the prosecutor may not disclose matters occurring before the grand jury except as
otherwise permitted by Title 46. An obligation of secrecy may not be imposed on a person except in
accordance with this section. A knowing violation of this section may be punishable as contempt of court.
(3) Disclosure otherwise prohibited by this section of matters occurring before the grand jury may be made:
(a) if directed by the district court prior to or in combination with a judicial proceeding;
(b) when permitted by the district court at the request of the defendant, upon a showing that grounds may
exist for a motion to dismiss the indictment because of matters occurring before the grand jury; or
(c) when permitted by the district court, to a defendant pursuant to a proper discovery motion.
History: En. 95-1409 by Sec. 1, Ch. 196, L. 1967; R.C.M. 1947, 95-1409; amd. Sec. 113, Ch. 800, L. 1991.
46-11-318. Discharge of grand jury. When the grand jury certifies the completion of business before it and
the district court concurs, the grand jury must be discharged by the district court. History: En. 95-1404 by
Sec. 1, Ch. 196, L. 1967; R.C.M. 1947, 95-1404(part); amd. Sec. 114, Ch. 800, L. 1991.
46-11-319. Expenses of grand jury. (1) Except as provided in subsection (2), all expenses of the grand jury,
including expenses for special prosecutors, experts, investigators, and interpreters, if any, must be paid by
the treasurer of the county out of the general fund of the county upon warrants drawn by the county auditor
or by the clerk of the district court upon a written order of the judge of the district court of the county.
(2) If the county has a district court fund, all expenses of a grand jury must be paid out of that fund.
(3) Subject to the procedures established by law, the state shall reimburse the court for juror and witness
fees and witness expenses. The county shall deposit the amount reimbursed in its general fund unless the
county has a district court fund. If the county has a district court fund, the amount reimbursed must be
deposited in that fund.
History: En. 95-1405 by Sec. 1, Ch. 196, L. 1967; R.C.M. 1947, 95-1405(f); amd. Sec. 4, Ch. 66, L.
1985; amd. Sec. 12, Ch. 680, L. 1985; amd. Sec. 115, Ch. 800, L. 1991.
46-11-331. Finding an indictment. (1) The grand jury shall find an indictment when all the evidence before
it taken together would in its judgment warrant a conviction by a trial jury. An indictment may be found
only upon the concurrence of at least eight grand jurors.
(2) If a complaint or information is pending against the defendant and eight jurors do not concur in
finding an indictment, the foreman shall report the decision to the district court judge.
History: (1)En. 95-1408 by Sec. 1, Ch. 196, L. 1967; amd. Sec. 17, Ch. 184, L. 1977; Sec. 95-1408,
R.C.M. 1947; (2)En. 95-1410 by Sec. 1, Ch. 196, L. 1967; amd. Sec. 3, Ch. 3, L. 1973; Sec. 95-1410,
R.C.M. 1947; R.C.M. 1947, 95-1408(3), 95-1410(a); amd. Sec. 116, Ch. 800, L. 1991.
46-11-332. Presenting the indictment. (1) An indictment, when found by the grand jury, must be signed
by and presented by the foreman to the district court in the presence of the grand jury and must be filed
with the clerk. The district court shall then issue an arrest warrant or summons for the defendant.
(2) If a complaint or information is pending against the defendant and eight jurors do not concur in
finding an indictment, the foreman shall report the decision to the district court judge.
History: En. 95-1410 by Sec. 1, Ch. 196, L. 1967; amd. Sec. 3, Ch. 3, L. 1973; R.C.M. 1947, 951410(b); amd. Sec. 117, Ch. 800, L. 1991; amd. Sec. 16, Ch. 262, L. 1993.
MCA ContentsSearchPart Contents
46-11-333. Repealed. Sec. 263, Ch. 800, L. 1991.
History: En. 95-1410 by Sec. 1, Ch. 196, L. 1967; amd. Sec. 3, Ch. 3, L. 1973; R.C.M. 1947, 951410(c), (d).
~
Chapter 3. Summary INDEXPOSITIO - by Humble O’Pinion 2014:
Federal Takeover of Montana. Lincoln’s Federal mercenaries and carpetbaggers invaded the gold
fields of eastern Idaho in 1863, one year after gold was discovered near Bannack . The mission was to
eliminate the local political leadership by any means necessary, and then lay down the law for those
citizens that remained in the conquered territory.
The main obstacle to the new law was the miner’s tradition of ‘the grand jury and county court’, known
as “the grand jury system”. In the system the grand jury would make preliminary inquiries into all
substantial crimes, including crimes by government employees in their official capacity.
In this system the county court would be the venue for the trial of the accused person, if that person were
so identified by the grand jury. Therefore- the old system included a grand jury AND a county trial jury,
giving the accused two chances to make his defense.
Lincoln’s men had another idea for what should be called ‘law’, and who was to lay it down. Lincoln’s men
followed a new, national plan for all law- called “U.S. statute law”. Lincoln’s men murdered the local
political leadership around Bannack, including the sheriff and his deputies. After a couple dozen more
murders- the remaining citizens did not have the will to resist the Federal Takeover.
The Montana ‘common law procedure’ would not be allowed under the new statute law, unless no
applicable statute could be found. Even then, it would only be a matter of time before statutes would
regulate almost every possible aspect of human life. The grand jury system was eliminated piece by piece
and replaced with foreign statute law.
The proponents of statute law say that statute law is always supreme where it is observed, and common law
is always secondary. The theme is repeated in every version of the Montana code and every version of any
other code.
The Debate is no longer complicated: Lincoln’s men won the war in Montana in 1864. They say the law;
and the miner’s common law system is no longer valid.
The courts in Montana would have to be changed as well. The county court was not codified in
the new written law. Simply omit any references to it. Lincoln’s statute men removed the county court and
left Montanans with no court of law. Within a few years, they would offer a probate court with powers
beyond the realm of probate. People were undoubtedly aware of the Takeover, but apparently did not resist.
There are two references to the county court within territorial statute law, but they are far apart. The first
reference is in the substitution of the probate court for the county court in 1867. Geez, what “county court”
are they taking about in 1867?
The second mention of the county court in statute law is found in the threat to recreate the county court and
then abolish it, in 1884.
The writers of the 1884 constitution clearly meant that they wanted to abolish ‘probate courts’, and not the
ancient county courts that were already extinguished 20 years earlier. The real goal of the statute writers of
1884 was to give all judicial power to the district court. When that goal was accomplished, the district
court became the “King’s Bench”, where the judge has the powers of a king, just like old England.
The law writers deceived the voters of 1884 by claiming the probate court IS the county court, when that is
simply not the case. The mingling and blurring of terms is a constant tool of legislative and judicial
oppression.
The 1884 constitution was approved by the Montana voters, but rejected by the U.S. congress. The reason
for the rejection is based on these references to the county court, the grand jury and the
indictment process. While the average voter of 1884 probably believed that the new constitution was
offering to reestablish their ancient county court from 20 years earlier; the truth is exactly the opposite. The
1884 law writers meant to extinguish the county court, AND THEY SAY SO IN THE CONSTITUTION!
Read it for yourself. It is a constitution that is written in the negative.
The 1884 constitutional convention is tyranny run amok. The people are so poorly educated that they vote
to establish their own court, and abolish it at the same time. The enlightened attorneys-at-law from the East
must have chuckled warmly when the voters approved such a nonsensical document. The attorneys
probably determined that the voters would never catch on.
Five years after the approved/rejected constitution of 1884, the attorneys tried again. Only this time, the
new constitution would be far worse on the grand jury system than that of 1884, and again- THE PEOPLE
VOTED FOR THIS NEW PIECE OF TYRANNY.
Only this time the Federal conquerors heartily approved of Montana’s 4th constitution, which completely
eliminated the grand jury system, once and for all. Sure, the words are still printed in the books, but a
functional grand jury system does not exist after 1889. If the reader disagrees, show me one grand jury case
that made it to the Montana supreme court after statehood. And by the way, the Montana Supreme Court
has heard tens of thousands of cases.
During the constitutional debate of 1889 concerning “the grand jury system”- legislators suggested that
“the grand jury system” should be abolished. Why not just say ‘the grand juries should be abolished’? Why
do the legislators include the word ‘system’? Answer: they are referring to the grand jury AND the original
county court. They are NOT referring to the Federally created probate courts, tribunals they could abolish
with the stroke of a pen. The Federal conquerors could not simply abolish the grand jury system with the
stroke of a pen, because that system is so very well established and had been in place for at least 700 years.
It gets worse. The 1889 legislators suggested that the petty jury be abolished as well. The lords, lawyers,
legislators and liars simply do not trust you. But you must trust them.
NOTES:
Montana Supreme Court Reports Volume I [pdf644/759] Creighton v Hershfield (1872) case confirmed;
courts of Territory created by organic act, law and equity separate. A court has no jurisdiction in this
Territory to try common-law action as a suit in equity; and it can-not try an equitable action as an action at
common law. Chief Justice D.S. Wade: clear distinction between chancery and common law, both
conferred on district court; “In equity cases, where chancery jurisdiction is rightfully invoked, the judge,
sitting as chancellor”… [several other sources say the same thing- separating common law and chancery
and then combining them]
‘Territory’ defined in Webster, 1928 (summary): 1. Land, region or district; 2. Land or water belonging to,
or under the jurisdiction of the sovereign; 3. Land a distance from the seat of government, not sovereign,
but ruled as a dependency or subject area. “Two kinds of territories were clearly contrasted by Marshall CJ
in Loughborough v Blake, 5 Wheat at p.324, [1820] when he distinguishes between a part of society which
is in a state of infancy, advancing to manhood, looking forward to complete equality so soon as the state of
manhood shall be attained, as is the case of the Territories ***; or which has voluntarily relinquished the
right of representation and has adopted the whole body of Congress as its legitimate government, as is the
case with the District.”
‘Territory’ defined in Black’s Law dictionary, 1933 (summary-in part): a part of the country separated from
the rest, and subject to a particular jurisdiction.
‘Territory’ defined in Black’s Law dictionary, 1990 (summary-in part): a part of the country separated from
the rest, and subject to a particular jurisdiction. Geographical area under the jurisdiction of another country
or sovereign power.
‘Territory’ defined in Black’s Law dictionary, 2004 (summary-in part): A geographical area included
within a particular government’s jurisdiction; the portion of the earth’s surface that is in a state’s exclusive
possession and control.
‘Territory’ defined by Humble O’Pinion 2014: conquered land.
‘District’ defined in Webster 1928 “ LL. districtus district, fr. L. districtus, p.p. of distringere: cf. F.
district. SEE DISTRAIN. 1. Territory under a feudal lord’s jurisdiction. 2. A division of territory. 3. In
England, a division of church property. 4. Any portion of a territory undefined in extent
‘District’ defined by Humble O’Pinion 2014: a division of conquered land
DISTRAIN defined in Webster 1928: to force, distress, draw asunder, hinder, molest or punish severely
[sounds like the definition of the modern district court]