Opinion of the Court. ་ It is assigned for error, that the petit jury was illegally constituted, in that the court had no right to summon petit jurors on an open venire. The argument is, that the provisions of §4 of the act of June 23, 1874, are, on their face, exclusive; that the method prescribed by that section for obtaining jurors is the only one that can be employed; that only the probate judge and the clerk of the court can select the jurors, and make the jury list; that the grand and petit jurors for a term must be drawn by the marshal from a box containing names of persons thus selected, and constitute the regular grand and petit juries for the term; that if, during the term, any additional grand or petit jurors are necessary, they must be drawn by the marshal, in open court, from the same box; and that, if the two hundred names are all drawn out, for grand or petit jurors, at any time during the year, there can be no more indictments found, or any more civil or criminal jury trials had, in the court of the district, for the rest of the year, because it is provided in § 4 that the jurors drawn from the box shall be jurors only for the term, of which there are four in the year, and that the names drawn shall not be again placed in the box. until a new jury list is made, which is to be done annually in January. A result so disastrous to the administration of justice, so certain to impair, if not destroy, public and private rights, is not to be permitted, unless imperatively required. The act of June 23, 1874, does not prescribe the making of a new list by the probate judge and clerk except once a year, in January, or the making by them of an additional list, at any time during the year. But that act does not directly, or by implication or intendment, exclude the use of an open venire when the two hundred names are exhausted during the year. It provides that the jurors drawn and summoned shall constitute "the regular grand and petit juries for the term, for all cases." By other provisions of law, each of the District Courts of the Territory is required to hold four terms a year. There is no doubt that jurors must be drawn from the two hundred names, or those of them remaining in the box, so long as any remain. But the question is: What is to be done when those names are exhausted? If there is no method that can be re Opinion of the Court. sorted to to obtain jurors, in such event, the provisions in § 5 of the act of 1882, for challenges by the United States, with a view to indictments for the offences named in that section, will have proved suicidal, and resulted in destroying all oppor tunity to find or try such indictments. We are not referred to any statutory provision, in any act of Congress, or any act of the Territory, which forbids the use of an open venire when the two hundred names are exhausted. The argument is, that the provisions of § 5 of the act of 1882 cover the entire subject of obtaining jurors, and do not allow of any supplementary measures; and that such measures cannot be resorted to unless affirmative statute authority, directed to the very point, is to be found. The Supreme Court of Utah, in its opinion affirming the judgment in the present case, did not refer to any statute of Congress, or of the Territory, directly authorizing the open venire, but rested the power to issue it on the fact that such power was inherent in the court and was not forbidden by any statute in force in Utah; and held that it followed as an incident to the authority and duty of the District Court to hold its sessions and try by jury indictments for crimes. We concur in this view, so far as the resort to the open venire after the exhaustion of the two hundred names is concerned. Section 4 of the act of 1874 prescribes the rule to be observed, to the extent in which it prescribes any rule. It proceeds on the view that the jury list of two hundred names will be sufficient for ordinary purposes, or, as it expresses it, for "the regular grand and petit juries for the term;" and it provides what shall be done so long as there are any names left in the box. But it is silent as to what shall take place when the names are all exhausted. It does not forbid the ordinary and well known resort to an open venire. Moreover, § 5 of the act of 1882, in regard to prosecutions like the present one, prescribes what shall be a sufficient cause of challenge to a person "drawn or summoned as a juryman or talesman," and what questions may be put to "any person appearing or offered as a juror or talesman," thus recognizing a "talesman" as distinct from a "juryman or a "juror." The persons drawn from the box of two Opinion of the Court. hundred names are "jurors," and are so defined and called in §4 of the act of 1874. Congress, therefore, in using the word "talesman," had reference to a person not drawn from such box. The word "talesman" is not satisfied by referring it to the additional jurors which § 4 of the act of 1874 says may and shall be drawn from the box, if they "shall be necessary," during the term. They are not talesmen, in any proper sense, but are as much regular jurors as those first drawn from that box. The principle which authorized the action of the court in obtaining petit jurors, in this case, after the statutory measures had been exhausted, is sanctioned by authority. Bac. Ab., Juries, C.; 1 Chitt. Crim. Law, 518; 2 Hale P. C. 265, 266; United States v. Hill, 1 Brock. 156; Mackey v. The People, 2 Colorado, 13; Stone v. The People, 2 Scammon, 326; Straughan v. The State, 16 Ark. 37, 43; Wilburn v. The State, 21 Ark. 198, 201; Gibson v. The Commonwealth, 2 Virg. Cases, 111, 121; Shaffer v. The State, 1 How. (Miss.) 238, 241; Woodsides v. The State, 2 How. (Miss.) 655, 659; State v. Harris, Supreme Court of Iowa, September, 1884, 17 Chic. Legal News, 58. By $ 1868 Rev. Stat., the District Courts of the Territory have common law jurisdiction, and, under § 1874 of the Revised Statutes and § 1061 of the Compiled Laws of Utah of 1876, those courts have original jurisdiction in criminal cases. By 217 of the Criminal Procedure Act of Utah of February 22, 1878, all issues of fact in criminal cases must be tried by jury, and by § 7 the defendant in a criminal action is entitled to a speedy trial. A venire to summon jurors is a writ necessary to the exercise of the jurisdiction of the court and agreeable to the principles and usages of law, where it is not forbidden or excluded, and where the affirmative provisions of law have, so far as they extend, been first observed. In United States v. Hill (before cited), Chief Justice Marshall, speaking of the law as it then existed, says: "It has been justly observed, that no act of Congress directs grand juries, or defines their powers. By what authority, then, are they summoned, and whence do they derive their powers? The answer is, that the laws of the United States have erected courts which are invested with criminal jurisdiction. This jurisdiction they are bound to ex Statement of Facts. ercise, and it can only be exercised through the instrumentality of grand juries. They are, therefore, given by a necessary and indispensable implication. But, how far is this implication necessary and indispensable? The answer is obvious. Its necessity is co-extensive with that jurisdiction to which it is essential," page 159. The cases to which we are referred by the plaintiff in error were cases where express statute provisions had been disregarded or violated. If, in this case, an open venire had been issued before the two hundred names were exhausted, a different question would have been presented. The record shows no error, and The judgment is affirmed. HOPT v. UTAH. IN ERROR TO THE SUPREME COURT OF THE TERRITORY OF UTAH. Submitted January 28, 1885.-Decided April 20, 1885. Under the Utah Code of Criminal Procedure of 1878, a judgment upon a verdict of guilty of murder, the record of which states that the court charged the jury, and does not contain the charge in writing, nor show that with the defendant's consent it was given orally, is erroneous, and must be reversed on appeal. This was a writ of error to reverse a judgment rendered by the Supreme Court of the Territory of Utah, affirming, upon appeal from the District Court of the Third Judicial District of the Territory, a judgment and sentence of death upon a conviction of murder. The decisions of this court, after former trials of the case, are reported in 104 U. S. 631, and 110 U. S. 574. One of the errors assigned in the brief filed in behalf of the plaintiff in error was that the record did not comply with the statute of Utah requiring that the written charges of the court should form part of the record. Statement of Facts. In the copy of the record of the District Court contained in the record transmitted by the Supreme Court of the Territory to this court, the statement relating to the charge of the court to the jury, and the exceptions to the charge, were as follows: On May 5 the case was finally argued by the counsel for either party," and the court charged the jury; defendant's counsel except generally to the instructions given by the court on its own motion, and exception allowed; and a verdict of guilty of murder in the first degree was returned and entered." And on May 16, "the time allowed by law for filing the bill of exceptions herein having passed, the court, upon application of defendant's counsel, refuses to further extend the time. Defendant excepts." The record also showed that on May 10, after judgment and sentence, a notice of appeal was filed by the defendant with the clerk, and a copy of the notice served on the district attorney. Appended to the brief filed in this court in behalf of the United States was an affidavit, taken January 7, 1885, of the deputy clerk of the District Court, testifying that the counsel for the defendant at the trial in that court, who requested him to prepare the transcript of record on appeal to the Supreme Court of the Territory, requested him to omit the written charge given by the court to the jury at the trial, and told him that no point was to be made by the defendant upon the instructions given by the court to the jury; that the transcript prepared in accordance with that request was delivered by the clerk to the counsel, and by them filed with the clerk of the Supreme Court of the Territory; that by reason alone of that request the written charge was omitted from the record; and that no bill of exceptions was ever filed, or offered to be filed, or presented to the Judge of the District Court for settlement. Mr. R. N. Baskin, Mr. S. II. Snider, and Mr. W. G. Van Horne for plaintiff in error. Mr. Assistant Attorney-General Maury for defendant in error. |