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NOTE: You may notice textual errors throughout this document, many of which have been left intact from the original text. Should you want to investigate the integrity of the original report, please refer to the original two printed volumes containing the official report of the proceedings and debates.
TWENTIETH DAY.
SATURDAY, March 23, 1895.
The Convention was called to order at 2 o'clock p. m. by President Smith.
The roll was called by the secretary and the following named members were found in attendance:
Allen
Anderson
Barnes
Bowdle
Boyer
Brandley
Button
Buys
Call
Cannon
Chidester
Christianson
Clark
Corfman
Crane
Creer
Cushing
Driver
Eichnor
Eldredge
Emery
Engberg
Evans, Weber
Evans, Utah
Farr
Francis
Gibbs
Goodwin
Green
Hammond
Hart
Haynes
Halliday
Heybourne
Hill
Howard
Hughes
Hyde
Ivins
James
Johnson
Jolley
Kiesel
Keith
Kearns
Kerr
Kimball, Salt Lake
Kimball, Weber
Lambert
Larson, L.
Larson, C. P
Lemmon
Lewis
Low, William
Low, Peter
Low, Cache
Lund
Maeser
Mackintosh
Maloney
Maughan
McFarland
Morris
Moritz
Murdock, Beaver
Nebeker
Page
Peters
Peterson, Grand
Peterson, Sanpete
Pierce
Preston
Raleigh
Richards
Ricks
Roberts
Robertson
Robinson, Kane
Robison, Wayne
Ryan
Sharp
Shurtliff
Snow
Spencer
Squires
Stover
Symons
Thatcher
Thompson
Thoreson
Thorne
Thurman
Van Horne
Varian
Wells
Whitney
Williams
Mr. President.
Mr. SHARP. Mr. President, I am called away and desire to be excused on Monday and Tuesday.
The request was granted.
Mr. McFARLAND. Mr. President, I would like to be excused until Monday.
The request was granted.
Prayer was offered by Lieutenant Christian Erricson, of the Salvation Army.
The committee on legislative, by request of chairman Van Horne, was excused from attendance
at the session.
The journal of the nineteenth day's session was read and approved.
Presentation of petitions and memorials.
Mr. KEARNS. Mr. President, I have here a petition with 1043 signers, from the laboring men of
Summit County, requesting at the hands of this Convention due consideration to underground
labor.
The petition was read and referred to the committee on labor and arbitration.
Mr. ROBERTS. Mr. President, I have
{298 - REPORTS}
a petition from a number of gentlemen
of this city, and also labor unions and societies, numerously signed_from 1,000 to 1,500 names, I
do not know the exact number; I ask that it be read.
The petition was read and referred to the committee on schedule, future amendments and miscellaneous,
Reports of committees.
Mr. VARIAN. Mr. President, I suggest that under the rules the report of the committee on
executive should be read and under the rules will be printed. There is no use in reading it unless
it is called for.
The committee on rules reported as follows:
The committee on rules herewith report and recommend that standing rule 20 be amended by striking out all after debate in line 7 of the printed rule.
Mr. VARIAN. I move the adoption of that, Mr. President; the purpose is to clean away the doubt and uncertainty that seems to have pervaded the minds of the Convention ever since the rules were adopted, as to the power of the committee of the whole to arise At any time. It must have been considered that that rule as it now reads, and originally read, limited the committee of the whole to such time as the Convention should previously direct. By striking all that out, you will observe that the rule will remain so that it can plainly be understood that the committee may arise at any time.
The report was adopted.
The committee on executive reported as follows:
MR. PRESIDENT:
Your committee on executive report herewith an article entitled executive, for insertion in the Constitution.
Files Nos. 21 and 31, which were referred to the committee, are herewith returned.
C. S. VARIAN,
Chairman.
The PRESIDENT. It goes on to the calendar to the committee of the whole.
The committee on schedule and future amendments and miscellaneous reported as follows:
MR. PRESIDENT:
Your committee on schedule, future amendments and miscellaneous report that we have considered file No. 86, relating to the sale of cigarettes, and return it herewith and recommend that it be filed. Also file No. 138, relating to fish and game, and recommend that it be referred to the committee on legislative.
RICKS,
Chairman.
The report was adopted.
The committe on accounts and expenses reported as follows:
Convention Hall, March 23, 1895.
The committee on accounts and expenses beg to report as follows: There has been expended by this Convention up to and including Friday, March 22nd, 1895, $12,342.77; leaving a balance at that time of $17,657.23. By bills which have been handed to us we discover that officers of this Convention have incurred liabilities of which we knew nothing until such bills were presented to us.
We believe that officers of this Convention should submit to this committee an estimate of any intended expense and before incurring said expense should receive the sanction of this committee.
In order that our duty may be made plain, we desire instructions upon this point. We also desire to know from what source that committee are to obtain the funds wherewith to purchase stamps for the use of the secretary. The secretary of the Territory has not yet the appropriation.
A. C. LUND,
Chairman.
Mr. CANNON. Mr. President, I move that the report be received and filed and officers be instructed in accordance with the expressed desire of this committee and that the balance of the report be not acted upon.
Mr. KERR. Mr. President, I would like to ask what the balance of the report refers to?
Mr. CANNON. The balance is an inquiry as to what they are going to do to get the funds. We
don't know what we are going to do ourselves.
Mr. ELDREDGE. Let the powers that be decide that.
Mr. THORESON. Mr. President, I
{299 - PROPOSITIONS}
would like to ask a question_if it
means that when any member of this Convention is at any expense he must hand his bills to the
committee for consideration by the committee?
Mr. CANNON. Answering the gentleman, I would say the committee asks that officers be
instructed to not incur any indebtedness, without consulting the committee. I move that this
instruction be given to all officers.
The motion was agreed to.
Introduction of ordinances and propositions for insertion in the Constitution.
Mr. BOWDLE. Mr. President, I move you that we suspend the rules and read all propositions the
first and second time by their title and let them be referred to the appropriate committee.
The motion was agreed to.
Mr. GOODWIN. Here is a proposition for the establishment of the metric system. I present it by
request, with a letter from a very competent man for the use of the committee. I endorse a part of
it. The rest I have under consideration.
Said proposition (file No. 144), was read a first and second time and referred to the committee on
mauufactures and commerce.
Mr. Van Horne introduced a proposition on prohibition (file No. 143), which was read a first and
second time and referred to the committee on manufactures and commerce.
Mr. KIMBALL (Salt Lake). Mr. President, there was a memorial to that effect submitted to some
other committee. Why scatter it? If it goes to the committee on manufactures and commerce, the
other should go to the same place.
Mr. Howard introduced a proposition (file No. 145), relative to raising revenue for certain
purposes, which was read a first and second time and referred to the committee on revenue,
taxation and public debt.
Mr. HOWARD. Mr. President, I would like to say in regard to this resolution that there is a
growing tendency among the people of our coming State to create indebtedness, and there is also
a tendency against bonds to pay that indebtedness. This proposition is to put it into the hands of
the people to vote a special tax for special purposes and for that reason, I would like it read. It is
short.
Proposition was read as follows:
The property taxpayers of this State, or of any county thereof, may at special elections, called for that purpose, or at any general election, by receiving at least ninety days' notice thereof, in such manner as may be provided by law, vote a property tax, not exceeding one quarter of one per cent. in addition to general taxes, on the assessed valuation of property in this State or county, wherein such election may be held for the purpose of raising revenue to pay off any just indebtedness of this State or county, or for making any reasonable improvement therein.
Mr. Howard introduced a proposition relative to the purity of water for domestic purposes (file No. 146), which was read as follows:
The Legislature shall provide by law to protect the purity of the waters of this State that are used for domestic purposes.
The proposition was read a second time by its title and referred to the committee on legislative.
Mr. Kearns introduced a proposition relating to length of day's work (file No. 147), which was
read as follows:
That eight hours shall constitute a day's work on all works or undertakings carried on or aided by the State or municipal governments, and that the Legislature shall provide laws for the the health and safety of employes in factories and mines, expressly providing that eight hours' labor shall constitute a day's work in mines.
The proposition was read a second time by its title and referred to the committee on labor and arbitration.
Mr. Buys introduced a proposition relating to the manufacture, sale, and disposal of imitations of
dairy products
{300}
(file No. 148), which was read a first and second time by its title and
referred to the committee on schedule and future amendments and miscellaneous.
Mr. Low, of Cache, introduced a proposition relating to stock and contagious diseases (file No.
149), which was read a first and second time by its title and referred to the committee on water
rights, irrigation and agriculture.
Mr. Low, of Cache, introduced a proposition relating to right of way for drainage and other
purposes (file No. 150).
Mr. THURMAN. Mr. President, by consent, if it can be obtained, I would like to move that that
last proposition be referred to the committee of the whole to be considered in connection with the
article on preamble and bill of rights. I see it refers directly to the same subject that is treated by
that.
The PRESIDENT. It will have to be done by a suspension of the rules.
Mr. THURMAN. Yes; I ask that it be read for information.
The proposition was read as follows:
When private property shall be taken for any public use a compensation shall be made therefor. When such compensation is not made to the State, it shall be ascertained by a jury of not less than three commissioners appointed by a court of record or shall be prescribed by law. Private roads may be opened in the manner to be prescribed by law, but in every case the necessity of the road and the amount of all damages to be sustained by the opening thereof shall be first determined by a jury of freeholders, and such amount, together with the expenses of the proceedings, shall be paid by the person to be benefitted. General laws may be passed permitting the owners or occupants of agricultural lands to contract and maintain for the drainage thereof, necessary drains, ditches, and dikes upon the lands of others under proper restrictions and with such compensation, but no special laws shall be enacted for such purposes.
Mr. LOW (Cache). I will say for the information of the gentleman from Utah County that the subject matter contained in this proposition now sent up refers to section 24 of the preamble and bill of rights.
Mr. PRESIDENT. Does the gentleman move to suspend the rules and have this go to the committee of the whole to be considered in connection with the preamble and declaration of
rights?
Mr. THURMAN. Yes, sir.
The motion was agreed to.
Mr. Jolley introduced a proposition providing for the regulation of water (file No. 151), which
was read a first and second time by its title and referred to the committee on water rights,
irrigation and agriculture.
Mr. Jolley introduced a proposition for the taxation of professional men (file No. 152).
Mr. THURMAN. Mr. President, I move to lay that on the table. [Laughter.]
Mr. RICHARDS. I ask to have the proposition read for information. The proposition was read as
follows:
The Legislature may, by law, provide for the taxation of any or all professional men. [Laughter.]
Mr. LOW (Cache). I move that the proposition be referred to the committee on revenue, taxation and public debt.
Mr. GOODWIN. I move that that be referred back with a request that details and specifications
be furnished.
The proposition was referred to the committee on revenue, taxation and public debt.
Mr. Raleigh introduced a proposition relative to the liquor habit (file No. 154), which was read as
follows:
The Legislature shall provide for the establishment of hospitals for victims of the liquor habit, where they can be scientifically treated. It shall also provide for the organization of medical boards of examination, whose duty shall be to examine into the condition of common drunkards and decide whether or not they shall become public charges.
The proposition was read a second time by its title.
{301 - MOTIONS}
Mr. FRANCIS. Mr. President, I move that that go to the legislative committee.
The motion was agreed to.
Mr. Raleigh introduced a proposition on inebriety ( file No. 155).
Mr. EICHNOR. Mr. President, I am not chairman of the committee on ordinances, but I am a member of the committee on ordinances. I think those propositions should belong to the committee on schedule and future amendments; they are dealing with the liquor traffic and
prohibition, and as for one of the committee on ordinance, I am not anxious to get mixed up on
the question.
The PRESIDENT. You move this be referred to the committee on schedule and future
amendments and miscellaneous?
Mr. EICHNOR. Yes, sir.
Mr. ROBERTS. Mr. President, as the gentleman from Salt Lake just now remarked, all the
propositions touching the question of prohibition have so far been referred to the committee on
schedule and miscellaneous, but I cannot say, sir, that this is a question that touches prohibition. I
am rather of the opinion that the gentleman who introduced it has concluded that there was going
to be no prohibition, and was going to take care of the drunkards; and as we will have all we can
do to manage the question of prohibition, I am willing, sir, that the business of looking after the
victims of the supposed intemperance which shall prevail in Utah shall go to some other
committee than the committee on schedule and miscellaneous. I am willing that resolution should
go to any committee on earth but the committee on schedule and miscellaneous. [Laughter.]
Mr. EICHNOR. You are a member of that committee, are you not, Mr. Roberts?
Mr. ROBERTS. Yes, sir.
The proposition was referred to the committee on schedule and future amendments and
miscellaneous.
The PRESIDENT. Gentlemen, this is the last chance, as the chair understands it, for the
introduction of these propositions for the Constitution. If there are any of them anywhere, bring
them forward.
Mr. JAMES. Mr. President, there are two articles found in the committee on corporations, one is
the forestry, and the committee has concluded that it properly belongs to the committee on water
rights, irrigation and agriculture; we return that article (file No. 92). Also an article on public
institutions, which we conclude does not belong to the committee on corporations, and conclude
that it belongs properly to the committee on public buildings and state institutions not
educational. (File No. 53.)
Mr. SQUIRES. I move that they be referred to the appropriate committees. The motion was
agreed to.
Motions and resolutions.
Mr. WELLS. I move, Mr. President, now, that we go into committee of the whole.
Mr. THURMAN. I wish you would withhold that one moment. I move that when this Convention adjourns that it adjourn until 10 o'clock Monday morning.
Mr. GOODWIN. Mr. President, the trains do not get here until 10 o'clock, especially on Monday morning. There are gentlemen from Provo and Draper and farther north and farther south. If the gentleman will make it 10:30 every one can be here.
Mr. THURMAN. I will accept that suggestion.
Mr. VARIAN. Mr. President, I understand there is to be a resolution changing the standing rule
of the Convention in that particular referred to the committee on rules. I have endeavored to get a
meeting of that committee, but I am satisfied its members want to ascertain the views of the
chairmen and
{302}
members of the most important committees, with a view to learning how it
will interfere with the work they have in hand. I think that ought to be ascertained, and we will
endeavor to ascertain it during the afternoon. If the important committees are practically through,
the committee on rules will report this resolution.
The PRESIDENT. The request of the gentleman is then to defer the consideration of this until
later in the day?
Mr. VARIAN. I am simply making an explanation, because I take this as a spirit of criticism
upon the delay of the committee on rules in reporting that. I say I have endeavored to get a
meeting this morning, but was unable to do it; and also suggest that we think that we ought to
consult with the chairmen of the most important committees to ascertain how far along they have
gotten with the work. There is no use meeting at 10 o'clock if we are going to delay the
committee work.
Mr. THURMAN. Mr. President, two or three days ago this resolution was proposed here and
referred at once to the committee on rules; it seems to me that it is very important that that matter
be settled. I supposed the committee would act at once, or act yesterday, at least they have not
done it, and I offer this now to facilitate the business of this Convention.
We are getting along very slowly. We have not two paragraphs of the bill of rights. That is the
condition we are in here, and here we are proposing to meet at 2 o'clock in the afternoon. The
committees will have to meet at night, gentlemen, if we do this work. We will have to work night
and day. If we set apart the forenoon for committee work, why, we will not do work at night; that
is the idea, and we will be here at the rate we are going now for five years. That is the fact about
it; I have figured it out.
Mr. VARIAN. Mr. President, the gentleman from Utah seems to have an idea that he knows exactly how this whole thing ought to be done, and that everybody ought to move at his beck and call. The spirit of criticism pervading his remarks is, to say the least, uncalled for. If he will consult with his colleague from Weber County, he will ascertain that the reason the committee on rules have not considered this matter is because he failed to attend the meeting this morning. The report reached the committee on rules at six o'clock or half past five night before last. The meeting was called for this morning. On yesterday the chairman of the committee on executive was compelled to devote all his time to the business of that committee. Now, I submit, gentlemen of the Convention, if your standing committees are for such reasons as these, a delay of two days,
are to be subjected to this hostile criticism and this sort of animadversion, you had better dispose
of them at once and take it right into your own hands, and determine these questions without the
committees. There has certainly been nothing indicated heretofore that any committee was
unwilling or failed in any particular in acting as promptly as the circumstances would permit, and
I submit that now, I do not know whether you are going to speed this matter by calling a meeting
of this Convention for 10 o'clock every day. If your committee on legislative; on revenue and
taxation; on judiciary; the two committees on corporations; your committees on
apportionment_if all or any of these great committees are engaged in difficulties and are
wrestling with propositions which must be settled in the committee, it is idle to talk of speeding
the action of this Convention by compelling them to leave the committee rooms and come here. I
simply submit that your committee on rules might have at least an opportunity to determine that
question after consultation with the members of these respective committees.
{303}
Mr. THURMAN. Mr. President, I see no reason for the gentleman from Salt Lake becoming
nettled over this proposition. I made no allusion whatever to him, but I did not know but what
now it is necessary to say that the committee on rules might have acted a little sooner than they
have acted. In fact, they have not acted at all.
Mr. VARIAN. Will the gentleman state when?
Mr. THURMAN. Yesterday or today. It was a mere proposition relating to changing the hour of
the meeting of this Convention.
Mr. VARIAN. If the gentleman will pardon me, I explained that I, for one, of the committee on
rules was engaged in the executive committee all yesterday morning.
Mr. THURMAN. Very well, now.
Mr. EVANS (Weber). I was engaged in the committee on taxation.
Mr. THURMAN. Permit me, Mr. President, to say, I meant no unfair allusion to the gentlemen,
nor the committee; neither does this motion affect that question at all. I ask that next Monday
morning we meet at 10 o'clock, or as suggested by Judge Goodwin, at 10:30; now, if the house
does not want to meet then, let them vote it down. I think myself we ought to meet then and go
on with the work.
Mr. JAMES. Mr. President, before you put this motion, I want to say just one word. That is this, that the committee on incorporations anticipated no such resolution as this being made and they have an appointment for a meeting at 11 o'clock on Monday morning, and it is really important that the committee should meet and go to work at that hour. Their work is not ready to report to the Convention and it will take some little time to get ready. It cannot be got ready in that time and if the committee cannot meet the work will simply have lie idle. I do not know whether other committees are in the same fix, but I offer this apology to the Convention. This matter can not be advanced any further. As Mr. Thurman well knows, the time had been taken up on other committees and we want to settle upon a report which shall finally come into this Convention.
Mr. SQUIRES.. Mr. President, I move that the resolution lie upon the table. The ayes and noes being called for, the resolution was tabled by the following vote:
AYES_45.
Bowdle
Brandley
Button
Buys
Cannon
Chidester
Christianson
Clark
Crane
Cushing
Driver
Eichnor
Eldredge
Evans, Weber
Evans, Utah
Francis
Gibbs
Goodwin
Green
Haynes
James
Jolley
Keith
Kearns
Kimball, Weber
Lambert
Larsen, L.
Larsen, C. P.
Lund
Mackintosh
Moritz
Murdock, Beaver
Page
Peterson, Grand
Peterson, Sanpete
Raleigh
Ryan
Sharp
Shurtliff
Squires
Symons
Thompson
Van Horne
Varian
Williams.
NOES_44.
Adams
Anderson
Barnes
Boyer
Call
Corfman
Creer
Cunningham
Emery
Engberg
Farr
Hammond
Halliday
Heybourne
Hill
Lewis
Low, Peter
Low, Cache
Maeser
Maloney
Maughan
Nebeker
Peters
Preston
Richards
Roberts
Robertson
Robinson, Kane
Robison, Wayne
Snow
{304}
Howard
Hyde
Johnson
Kiesel
Kerr
Kimball, Salt Lake
Lemmon
Spencer
Stover
Thoreson
Thorne
Thurman
Wells
Whitney.
Mr. Howard offered the following:
Resolved, that all members of the Convention absenting themselves from any regular meeting of the Convention without being excused on account of sickness, or an order of some competent court, shall be fined two dollars for each meeting he misses, to be taken out of the pay already due him.
Mr. HOWARD. I move that resolution be adopted.
Mr. BUTTON. Mr. President, I move to make it four dollars.
Mr. BARNES. Mr. President, it strikes me a little different; it should read, excused on account
of sickness.
Mr. GOODWIN. Mr. President, that is only amending it a little. It is going to be very severe if
any one member is going to be fined four dollars for the absence of all the other members.
Mr. VARIAN. Mr. President, I do not see any necessity for a resolution of that kind. There may
be something underlying it that would indicate there is some purpose on the part of the mover of
that resolution. What reason is there now for the adoption of such a resolution? It seems to
assume in advance that every member of this Convention should be under a system of discipline
or tutelage. It is not usual in legislative bodies to fine them for absence, certainly not except in
very extreme cases where there is some question of contempt or disposition of that kind
manifested. Why should this Convention now determine in advance these questions and make a
general rule that shall apply in all cases, that if a man should fail to attend the sessions of the
Convention that it shall be the duty of the president to impose a fine upon him requiring the
action of the Convention to do away with that?
Why shouldn't it be left as it is, subject to the disposition of the Convention if it shall find it
necessary to discipline its members? It seems to me also that it would practically become a
standing rule of the Convention; it ought not to be considered in this way. I move to indefinitely
postpone it.
The motion of Mr. Varian was agreed to.
Mr. WELLS. Mr. President, I move that the Convention resolve itself into the committee of the
whole for the consideration of the preamble and declaration of rights.
The motion was agreed to.
The Convention then resolved itself into committee of the whole for consideration of the preamble and declaration of rights, with Mr. Squires in the chair.
COMMITTEE OF THE WHOLE.
The CHAIRMAN. Gentlemen, the business before the committee will be section 11 of the
preamble and declaration of rights.
The clerk read section 11 as follows:
Sec. 11. All courts shall be open and every person, for an injury done to him in his person, property, or reputation, shall have remedy by due course of law, and right of justice shall be administered without sale, denial or delay.
Mr. WHITNEY. Mr. Chairman, I move an amendment in line four of that section by striking out the words, and right and justice, and substituting the word which so that it will read, shall have remedy by due course of law, which shall be administered without sale, denial or delay.
It is to be presumed that the law is right and just, and if it be not it must be administered anyhow,
as long as it is in force and I think that it is surplusage_the word which would be sufficient
without the other.
Mr. ANDERSON. Mr. Chairman, I will make an amendment to the amendment by adding after
delay, and no
{305 - BILL OF RIGHTS}
person shall be barred from prosecuting or
defending before any tribunal in this State by himself or counsel any civil cause to which he is a
party.
The CHAIRMAN. Why not pass upon this amendment of Mr. Whitney's which is a very easy
thing to settle?
Mr. VAN HORNE. Mr. Chairman, I move to amend the amendment of Mr. Whitney by striking
out the word sale and by inserting before the word delay the word unnecessary.
Mr. WHITNEY. Mr. Chairman, I think my amendment should be put first because the other does
not touch it.
The CHAIRMAN. There are two separate amendments to the same section. I think we ought to
pass upon one of them first.
Mr. EVANS (Weber). Mr. Chairman, I am in favor of the section as it now stands; it is very
usual in many of the constitutions. I don't think any of the amendments proposed ought to be
made.
Mr. MALONEY. Mr. Chairman, I think the section should stand as reported by the committee. It is in nearly every constitution and declaration of rights in the country. It is a provision that has come to us with the approval of the ages. I hope it will pass just as the committee has reported it.
Mr. EICHNOR. Mr. Chairman, I am in favor of the amendment offered by Mr. Van Horne. I think the word sale is unnecessary. Sale indicates that judges can be bought or the court can be bought, or one of Judge Goodwin's juries can be bought. I think the words unnecessary delay, are of great importance with regard to the courts.
The amendment offered by Mr. Van Horne was agreed to.
The amendment offered by Mr. Whitney was agreed to.
Mr. ANDERSON. Mr. Chairman, I think the amendment that I offered should prevail, because I
think that this is a constitutional right that should be guaranteed to every citizen if he so
desires. At the end of the section to add_and no person shall be barred from prosecuting or
defending before any tribunal in this State by himself or counsel any civil cause to which he is a
party.''
Mr. VARIAN. Mr. Chairman, I call attention to the fact that by confining that to civil causes,
possibly by implication it might be held to prevent his appearance in criminal cases. It is just as
important and necessary to include it here.
Mr. JAMES. Mr. Chairman, another section does provide that he shall appear in criminal cases.
Mr. ANDERSON. The next section provides for criminal cases.
Mr. EICHNOR. Mr. Chairman, I am opposed to the amendment, not because I happen to be an
attorney, but if every man would try that in one of the higher courts he would discover what a
mistake he had made after the verdict is against him. There is a saying among lawyers that any
man who pleads his own case has a fool for a client. Now, this would work no injury to any
lawyer, it would work great benefit. Gentlemen, if you want legislation in the Constitution for the
benefit of the laymen you are making a mistake. If you are working in the interest of lawyers it
will inure to our benefit, because if a person goes into a higher court as his own lawyer he will
get his case so tangled up that he will have to call in a lawyer or several to have it unraveled.
Mr. CANNON. Mr. Chairman, I favor the amendment offered by Mr. Anderson. There is nothing
compulsory about this. If a man isn't a lawyer he isn't compelled to go in and present his own
case, and if after a few experiments laymen find that they cannot defend their own cases there is
not much danger that they will attempt it. I don't know, however, why the gentleman should be
anxious that we should not give them the privilege of doing so if they want it.
{306}
Mr. EICHNOR. Mr. Cannon, I shall vote aye.
Mr. CANNON. I am glad the gentleman is convinced that aye is a proper proposition. I think that
everyone should have the right to appear and defend his property as well as to defend his person.
Mr. RYAN. Mr. Chairman, is not it a fact that any layman has the same privilege or has the privilege intended to be granted already?
Mr. CREER. Not in courts of record.
Mr. CANNON. I don't know whether that is true or not, but if it be true, this would simply
perpetuate that right. It would not harm anyone.
The amendment of Mr. Anderson was agreed to by the following vote on division:
Ayes, 48; noes, 33.
Section 12 was read by the clerk as follows:
Section 12. 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 against him, to have a copy thereof, to testify in his own behalf, to meet the witnesses against him face to face, to have compulsory process to compel the attendance of witnesses in his own behalf, to have a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed, and the right to appeal in all cases; and in no instance shall any accused person, before final judgment, be compelled to advance money or fees to secure the rights herein guaranteed [*note*]. The accused shall not be compelled to give evidence against himself; no wife shall be compelled to testify against her husband, and no husband against his wife, nor shall any person be twice put in jeopardy for the same offense.
Mr. VAN HORNE. Mr. Chairman, I move to insert after the words face to face the following: Except where evidence by deposition may be authorized by law.
Mr. Evans, of Weber, proposed to amend the section by striking out the following words, and in
no instance shall any accused person before final judgment be compelled to advance money or
fees to secure the rights herein guaranteed.
The CHAIRMAN. There is no conflict between those two amendments, gentlemen.
Mr. EVANS (Weber). At the proper time I would like to make a remark about that.
The CHAIRMAN. Gentlemen, we will consider the amendment of Mr. Van Horne, of Salt Lake.
Mr. WHITNEY. Mr. Chairman, I wish to offer an amendment, which may be deemed an
amendment to Mr. Van Horne's amendment. I wish to move in lines 5 and 6 to substitute for the
phrase, to meet the witnesses against him face to face, the words, to be confronted by the
witnesses against him.
Mr. VAN HORNE. I have no objection to that.
The CHAIRMAN. That will not conflict with Mr. Van Horne's amendment at all, because his
follows the words, face to face.
Mr. ANDERSON. Mr. Chairman, I hope this amendment will not prevail. I think it strikes out one of the greatest safeguards that there is to a citizen. Now if a person or a witness had the
opportunity of having his deposition taken in some far off county, or some far off state, why a
witness under these conditions is likely to testify to anything. I think that the accused should have
the right of having the witness confront him and then the jury can tell whether he is telling the
truth or not. I think that if we would authorize the taking of depositions, it would take away one
of the greatest safeguards that there is that is guaranteed by our Constitution; therefore, I oppose
it and hope it will not pass.
Mr. CHIDESTER. Mr. Chairman, I am also opposed to the amendment as offered for the reason
that if I have a proper understanding of it, it will permit prosecutions, or the Legislature to
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authorize the prosecution in criminal cases to take depositions of witnesses who are not present,
who may be absent in some other state or absent in some other county, and if that loophole was
thrown open, I do not see that there would be any safety for any man to have a trial and have a
fair defense. I do not believe that a man could have a fair defense unless his witnesses were
compelled to be in attendance where he could have the chance to cross-examine. It might be
argued that he would have a chance to propound questions and in that way get his testimony from
these witnesses, but if I understand it, this proposes now to make that compulsory, and I do not
think that it should be so. I think that the witnesses should be compelled to be in court and there
testify before him, that he should have the right to confront them and to cross-examine them, and
there would be many men who would not be able to go through this process of having the
depositions taken in some other country. They might not have means and they might not have
any friends, yet they would be entitled to a fair trial and in my opinion the only way to have a fair
trial is to have the witnesses face to face with the defendant and allow him to have a chance to
cross-examine.
Mr. Spencer was, by request, excused from further attendance at the session.
Mr. VARIAN. Mr. Chairman, it seems to me this amendment is getting on very dangerous
grounds. The provisions of this section are substantially those in every constitution, I believe.
They have received judicial interpretation and construction for many years, as I understand it,
this, so far as the particular matter is concerned, has received construction. Where a preliminary
examination has been held of a man charged with a serious offense_I mean a grand jury offense,
calling for a trial in a court of record, and the witnesses shall have been examined face to face, in
the language of this article, with the defendant, and the testimony has been taken down and he
has had an opportunity of cross-examination and it has been read over and corrected with such
other safeguards as may be imposed by legislation_in such a case, when the trial shall come on, if
one be had, and the witness shall be dead or has gone beyond reach of the process of the state, the
courts have held that under such circumstances the constitutional guarantee has been complied
with, and the deposition may be read. They have gone no further. Nowhere I believe is it held or
permitted that the state may take a deposition of a witness in the sense used by the gentleman in
the discussion here.
That is sending abroad to another territory and taking a deposition in a criminal case for the prosecution. Now, it is proposed to interpolate something new here involving something that puts us all at sea; again, requiring, as of necessity it will, other judicial construction, and interpretation particularly as it is framed. I quite agree with the gentleman from Sevier that the language will
certainly carry the understanding that it was intended by this Constitution to give the State the
right to take the deposition of the kind he has alluded to. So far as the other depositions are
concerned, the constitutional guarantee is complied with in the class of cases have mentioned,
because the defendant has met the witnesses face to face. He has had the opportunity of cross-
examination, and it is only because of the extreme necessity of the case that the deposition is
allowed to be read. Such has been the interpretation of the courts, but as I remember the
amendment, it is to insert Except where deposition shall be authorized by law. Clearly that
would indicate an authority in the Legislature to authorize the taking of other depositions and
certainly we do not intend to do that. Why not leave it as
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it is? Why not leave it within the
ancient landmarks, so that every lawyer and every layman may know just what this does mean?
Judicial decision after decision, all in one line, particularly have determined the meaning of this
language as the committee have reported it here. Why should we stray away and put something in
there that will tend to bring about and will doubtless bring about this confusion and conflict in
interpretation?
The motion was rejected.
The CHAIRMAN. The question comes on the amendment offered by Mr. Evans, of Weber.
Mr. EVANS (Weber). Mr. Chairman and gentlemen of the committee, I desire to explain the
reason why I should like to have that language stricken out. I have no other objection to the
section. I fully agree with the vote just taken, that the matter should not have been inserted which
was proposed by the gentleman from Salt Lake; these are ancient landmarks and should not be
disturbed, because they go directly to the protection of the individual liberty and protection of the
citizen, but we cannot go too far in the interest of the men charged with crime. We give, by this
section, the right to the accused to defend in person or by counsel. We give him the right to
demand the cause of the accusation against him and to have a copy of it. We give him the right to
meet his witnesses face to face. We give him compulsory process to compel the attendance of
witnesses. We give him the right of a speedy and public trial by an impartial jury of the county or
the district, and we also give him the right of appeal. Now, for all these purposes and all these
rights which we vouch to the person charged with crime, we say in the section as it now stands,
And in no instance shall any accused person, before final judgment, be compelled to advance
money or fees to secure the rights herein guaranteed.
That is to say, that if a person be charged with crime, who is worth a million dollars, he has the
right to be defended by counsel at the expense of the State. He could not be required to advance
one dollar for the employment of an attorney, but under this section, as it now stands, the
millionaire charged with crime could demand of the State the right to have counsel appointed to
defend him.
Mr. GOODWIN. May I ask you a question?
Mr. EVANS (Weber). You may.
Mr. GOODWIN. Would not the counsel so appointed be sure to hang the man and wouldn't it be
all right?
Mr. ELDREDGE. Mr. Evans, may I ask you a question? What about the poor fellow that has no
money?
Mr. EVANS (Weber). That is usually provided by the Legislature. We have such provision now.
Every state has such provision and I believe that was the intention of this language; I think the
committee intended that when it inserted that. I do not believe it gathered fully the meaning and
force of the language. It is a very unusual thing in constitutions, but a very usual thing in the
statutory laws.
Mr. VARIAN. I would ask the gentleman if it would not accomplish the purpose to insert the
words to officers, after the words fees, so that it should remain that he would not be compelled
to advance fees to the officers of the court for the sake of getting justice done?
Mr. EVANS (Weber). That is all right and the statutes usually provide for that. I do not believe a
man ought to be compelled to pay fees for a clerk when he comes to secure his subpoena. I think
that is one of the rights which ought to be accorded the defendant, and and I believe all these
rights named here ought to be accorded except the right which I have named. It goes entirely too
far. It simply leaves an avenue open by which the person charged with
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crime may reach
his hands into the public treasury and take from it large sums of money for his defense when it is
unnecessary that it should be done_when he himself is able to pay it. Now, when a person
charged with a crime is unable to secure counsel, it is according to the spirit and genius of our
institutions that he should have one; by striking out this language he would not be deprived of
that right, Legislatures have always provided for it, but to make it constitutional, then it would be
incumbent upon the part of the Legislature_the language itself is mandatory_to do these things.
That is, that the defendant shall not be compelled to advance one dollar until judgment has been
pronounced. Then if the defendant happened to be convicted, the State might make a law by
which judgment might follow as of course for costs, and the treasury might be reimbursed; but if
he should happen to be acquitted, there would be no opportunity at all to reimburse the State,
because no judgment for costs would follow. I think the language ought to go in its entirety or
else be amended in such a way as the gentleman from Salt Lake, Mr. Varian, suggests.
Mr, VARIAN. Mr. Chairman, I desire to offer an amendment to the amendment, to strike out the
language contained in Mr. Evans' amendment, and insert the following in lieu thereof: it would
commence after cases, in line 12, and end with a period in line 15 after the word guaranteed,
and in no instance shall any accused person be compelled to pay the expenses of his prosecution
to secure the rights herein guaranteed. I purposely leave out, before final judgment.
Mr. EVANS (Weber). Wouldn't that include fines?
Mr. VARIAN. I will allude to that in a moment. I purposely leave out the words before final judgment, because in my opinion the costs of an appeal or a new trial ought not to be exacted from a man charged with crime. As matters stand today here in this Territory, if a man wants a writ of habeas corpus, he has to pay for it under the rules of the court. It is exacted from him; I
think it is five dollars, I am not quite sure about that, but he has to pay for the suing out of a writ
of habeas corpus_that writ of right. On appeals from justices' courts, where there is, perhaps,
more likelihood of injustice being done, through inadvertance and ignorance, than in courts of
record, he has to pay for his appeal; when he gets up to the district court he has to put up five
dollars more within a time specified or his appeal is dismissed. If he demands a change of venue
in the justice's court, he has to pay for it. That is the way they administer the law. Although I
don't believe it is the law, but it is so administered. He has to pay frequently, perhaps, for a jury.
Therefore, I would eliminate so far as my judgment goes, the words, before final judgment.
Now, coming to the suggestion of the gentleman from Weber, Mr. Evans, I do not think the
language I offer would bear the construction suggested. I don't believe it covers the fines with the
attendant imposition of costs provided generally by law after the conviction. The language is to
secure the rights herein guaranteed [*note*].''
Mr. THURMAN. Will you read that as you have it amended?
Mr. VARIAN. And in no instance shall any accused person be compelled to pay the expenses of
his prosecution to secure the rights herein guaranteed. That is to secure the trial by jury, to
secure the being confronted with the witnesses_in other words, to secure a fair and impartial trial
or to secure an appeal provided for. After he has exhausted his remedy, after these rights
provided for in this section and guaranteed also have been secured for him, that is another
question. I believe the Legislature would have power then to
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impose punishment by way
of fines, and add to it also an imposition of the costs by way of fines. But the object and purpose
of this is to permit a man to have these rights that are secured to him by the Constitution of some
avail. It is of no effect or avail to tell a man who has not a dollar, You can appeal if you want to,
but you must put up ten dollars for these costs and when you get to the other court you have got
to pay the clerk so much. If this court has no jurisdiction, you can have your writ of habeas
corpus, but you must pay so much for it. His answer is, I haven't it, and so it ends. I would
like to see the language changed, and the reason I offer to strike it all out is because I cannot
reach it in any other way because of Mr. Evans' motion. I cannot move to strike out the words,
before final judgment, and I also desire to meet the suggestion he makes. I would like to see
language equivalent to this incorporated in this article.
Mr. EVANS (Weber). I just want to ask Mr. Varian a question or two. Have you studied your
amendment carefully, Mr. Varian? I think it has not remedied the difficulty if I read it right. It
simply leaves out the words, before final judgment?
Mr. VARIAN. Yes.
Mr. EVANS (Weber). And inserts the word expenses. Would not that include his expenses for
witnesses and counsel and such things as that? I would like to make this suggestion, Mr. Varian,
and see how you like it. Follow section 12, now, with me, and I will read it and see if I bring it
within your idea, And in no instance shall any accused person before final judgment be
compelled to advance money or fees to the officers of the State to secure the rights herein
guaranteed.
Mr. VARIAN. That would be very satisfactory to me, if you would leave out, before final judgment. I have no objection to the way you put it. It is, I believe, equivalent to my idea.
Mr. EVANS (Weber). I will leave that out; I intended to do it.
Mr. VARIAN. If you will draft that amendment and withdraw this, I will withdraw mine.
Mr. EVANS (Weber). Then, Mr. Chairman, I propose after the word fees to strike out the words
before final judgment.
The CHAIRMAN. Do I understand these other two propositions are withdrawn then?
Mr. EVANS ( Weber). Withdraw both of them.
Mr. VARIAN. Withdraw both of them, if there is no objection.
Mr. EVANS ( Weber). In line 13 strike out the words before final judgment, and after the word
fees, in line 14, insert to the officers of the State.
Mr. VARIAN. I second that amendment.
Mr. VAN HORNE. I would suggest, any officer of the State.
Mr. EVANS (Weber). Officers of the State, seems to cover it completely. That would cut off
then all the objection that there has been made to it,
Mr. MALONEY. Mr. Chairman, both of those amendments I think should be rejected. I don't
think from their language, either one of them will better the section. The committee on preamble
and declaration of rights knew what they were doing when they made the report. They were
fifteen good men_men who knew their business and this article now is copied word for word
from the declaration of rights of the state of Washington.
I call the gentlemen's attention to the latter part of the section of the declaration of rights of the
state of Washington, and in no instance shall any accused person, before final judgment, be
compelled to advance money or fees to secure the rights herein guaranteed. Now, the object of
that was and the idea was to prevent
{311}
poor men who were convicted in the superior court,
the right to appeal. Mr. Varian says they can appeal; the court says, All right, but before you
appeal, you must put up your money. I have known cases in this Territory where a defendant
was convicted and had to pay seven hundred dollars for reporter's fees. As it happened he had the
money. In a great many instances they have not the money at all to advance. Why, the idea that
the gentleman from Weber advances that this would screen the man from paying his attorney is
simply ridiculous; the committee never dreamed of such an idea as that.
I do not want to take up your time, gentlemen; I hope both these amendments will be voted down and that we will sustain the committee's report. It comes from Washington and other states,
which have this same language in their declaration of rights.
Mr. VARIAN. What is the object of putting in before final judgment there? Would not that by
implication shut a man off if he is convicted in the district court from the operation of this clause
if he desires to appeal to the supreme court?
Mr. MALONEY. It is not then a final judgment. He is not required to advance money to officers
for service, nor money to the reporter for translating his shorthand notes, but, if, after final
judgment in the supreme court he is convicted, then he must.
Mr. VARIAN. That is the question that I differ with the committee on. That is the way I
understand it, if the Convention want to put it that way, that is all right. I understand it. I want the
word stricken out as far as I am concerned.
Mr. MALONEY. The idea is, this committee reported exactly that which they thought we ought
to have as a declaration of rights.
Mr. Hyde, by his request, was excused.
Mr. VAN HORNE. Mr. Chairman, I would suggest that if there is any doubt what final
judgment means, by inserting the words, in a court of last resort, after the word judgments, it
would cover the whole thing.
Mr. VARIAN. There are two questions involved here. I would ask the chair to submit to the
Convention, first striking out the words, before final judgment.
The CHAIRMAN. Gentlemen, the question is on the motion to strike out the words, before final
judgment, from this section.
The question was taken and on a division there were ayes, 34; noes, 39, so the amendment was
rejected.
Mr. VARIAN. Mr. Chairman, of course I cannot tell from this vote what the sense of the
Convention is concerning the other proposition, which has been withdrawn, and it is in that view
that I shall re-offer it. I move to strike out that language, commencing at the word cases, in line
12, and ending with the word guaranteed. in line 15, and insert, and in no instance shall any
accused person be compelled to pay the expenses of his prosecution to procure the rights herein
guaranteed.
The question being taken on the amendment, it was rejected.
Mr. Whitney offered the following amendment: In line 5 and 6 ill lieu of the words, to meet the
witnesses against him face to face, insert to be confronted by the witnesses against him.
Mr. WELLS. Mr. Chairman, I move to amend the amendment, to make the word by read
with in conformity to the Constitution of the United States, to be confronted with the
witnesses against him.
Mr. WHITNEY. I don't see that it improves it. The question being taken on the motion of Mr.
Wells, the amendment was rejected.
The amendment of Mr. Whitney was agreed to.
Mr. Van Horne offered the following amendment: Insert after the word,
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committed, in
line 12, the words unless the venue be changed for cause as may be provided by law.
Mr. VAN HORNE. Mr. Chairman, the reason for my proposed amendment in that case was that I
had known of cases where the constitution had a similar provision to this and one addition, that
after three terms of court, and without a trial being had, a man was discharged because the
sentiment was so strong on the case that they couldn't find an impartial jury in the county or
district, in which the offense was alleged to have been committed, and under that kind of law the
criminal went free. I don't think there could be any possible harm in it. It simply provides by
enactment here that the Legislature may in certain cases provide for a change of venue.
Mr. THURMAN. Mr. Chairman, I don't understand that is necessary in the Constitution. We are
speaking here of rights that the accused party has. He has a right of trial in the district and he
should have it if he wants it. The cases of change of venue are cases where he may be entitled to
that as provided by law. I don't think that it has a proper effect in a bill of rights, and for that
reason I am opposed to it.
The question being taken on the motion of Mr. Van Horne, the amendment was rejected.
Mr. Low, of Cache, was, by his request, excused.
Mr. ANDERSON. Mr. Chairman, I would offer the following amendment, after the word
behalf, in line 8, produce all proofs that may be favorable to him. The reason I present this
amendment is as an additional protection to a citizen, as I have read a number of instances where
innocent persons have suffered and been convicted for the reason that they were not allowed to
bring proofs that were favorable to themselves and could have cleared them, on account of some
technicality of the court or an error in presenting the case to the court.
The amendment was rejected.
Mr. Kimball, of Weber, was, by his request, excused.
Mr. BOYER. Mr. Chairman, in order to avoid the great expense that is now attached to the Territory of Utah in furnishing witnesses to the accused party to the very great number that are ofttimes brought into court for the purpose of accumulating or bringing into court evidence which very often is cumulative, I desire a provision in this same section we have been talking upon, to substitute in line 14 and after the word fees, the words, other than as provided by law.
Now, the object of this amendment is to have the Legislature provide in some manner whereby
there may be some protection to the State as to the procuring of so many witnesses that ofttimes
are imposed upon the community in furnishing the witnesses for the accused party. They may
make provision then that by proper affidavit and upon proper presentation witnesses may be
furnished and also that they may not be of such a cumulative character as ofttimes have been
imposed upon the courts and the taxed community to pay for. I think that amendment will
overcome the objections of Mr. Evans, from Weber, as mentioned here on this particular score. I
believe that will cover the objection that I have to this section, as it now stands. It is in the
interest of economy.
Mr. VARIAN. I would like to ask if that does not neutralize the entire matter that we have been
discussing?
The amendment of Mr. Boyer was rejected.
Messrs. Williams and Francis were, by their request, excused.
Mr. HILL. Mr. Chairman, I move that the committee rise and report progress.
Mr. VARIAN. If the gentlemen will cast their eyes over the house they will see that nearly one-
half are gone. Gentlemen
{313}
who live out of town want to go and have gone.
The motion of Mr. Hill was rejected.
Section 13 of the preamble and declaration of rights was then read as follows:
Section 13. Offenses heretofore required to be prosecuted by indictments shall be prosecuted by information, after examination and commitment by a magistrate, or by indictment, with or without such examination or with commitment. The grand jury may consist of any number of members, of not less than five nor more than fifteen, as the judge of the court may order. A grand jury may be drawn and summoned whenever in the opinion of the judge of the district, public interest demands one.
Mr. WELLS. Mr. Chairman, I only wish to say before the committee begin firing at this section that it is almost the same as in the states of Michigan, Wisconsin, Washington, Colorado and California, and in all those states I am informed that this system has worked extremely well.
Mr. Bowdle offered the following as a, substitute for section 13:
No person shall be held to answer in a criminal case except on information after examination and commitment by a magistrate or on an indictment with or without examination and commitment. The grand jury shall consist of seven members and shall be drawn and summoned only when in the opinion of the judge of the district, public interest demands one.
Mr. EVANS (Weber). .1 think the only difference is in the number of grand jurors.
Mr. BOWDLE. Practically that is true. The only objection that I have to the first part of the
section is offenses heretofore required to be prosecuted by indictment, that is taken from the
California revised or new constitution, and undoubtedly they had in mind their old constitution.
Now, we have no organic existence as a State until this Constitution is adopted and we are
admitted, and we are not looking back to a time when, as a state, we were prosecuting crimes in a
different way, and it seems to me that it is preferable in that respect. It does not change the
substance a particle, but it reads here, offenses heretofore required to be prosecuted by
indictment. Heretofore prosecuted where? Not in the State of Utah.
Mr. EICHNOR. In the Territory.
Mr. BOWDLE. That is the only point I have. The other is that it fixes the number of grand jurors
at seven. I think that we ought to fix the number of grand jurors. The original section is from five
to fifteen, leaving it in the breast of the court to say what the number shall be. I think it is giving
him sufficient power when we allow him to say when it shall be called, and we will say how
many the jury shall consist of.
Mr. MALONEY. Mr. Chairman, the provision as contained here is in the constitution of the state
of Washington. They meant under the territorial system. Section 25 of the Washington
constitution provided that offenses heretofore required to be prosecuted by indictment, and so
on_so that the committee is right and this ought to be adopted as it is.
Mr. CREER. Mr. Chairman, the only objection I have to this section is that it provides that all
criminal cases be required to be prosecuted by indictment. There are criminal cases below
felonies where they were not required to be prosecuted by indictment, and I think the language as
it is now is better, offenses heretofore required to be prosecuted by indictment, showing there
are some offenses heretofore not required to be prosecuted by indictment, and I prefer the section
as it is now to the substitute offered to that by the gentleman. I am free to admit, however, that
the juries should be fixed at seven.
Mr. EICHNOR. Mr. Chairman, is Mr. Evans' amendment before the house?
The CHAIRMAN. No, sir.
{314}
Mr. EICHNOR. Well, I am opposed to the substitute the way it stands at present.
The substitute offered by Mr. Bowdle was rejected.
Mr. EVANS (Weber). Mr. Chairman, I desire to submit an amendment and move its adoption. I will state it very briefly; it is only a change in a word. Under the section as it now stands, before the prosecution could be had by information, there would have to be an examination and a commitment. I think if the defendant waives an examination that the State or the county ought not to be compelled to hold the examination before an information can be filed and my amendment simply reaches that point; also that if the defendant waives an examination, he is then committed and an information can be filed. The amendment I offer is as follows: Amend section 13 in line 3, between the words examination and by inserting the words, unless
waived, so that the first sentence of said section will read as follows: Offenses heretofore
required to be prosecuted by indictment shall be prosecuted by information after examination,
unless waived, and commitment by a magistrate, by indictment with or without such examination
and commitment,
Mr. VARIAN. Mr. Chairman, I trust that amendment will not prevail. There are many times
when the defendant is very ready to waive examination. He does not want the examination to be
had. He is willing to go right before the grand jury. He is willing to take his chances on the
witnesses dying, being scattered, and getting out of the Territory; there are many times when the
prosecutor in the interest of the State, feels it his duty to examine the evidence and have it opened
up. This makes it one-sided. If the defendant chooses to waive it, no matter what the interests of
the State might be, the examination could not be had. Why not leave that to the law? As the law
stands, with this clause in it, if he waives the examination and the State consented it would not
necessarily follow that the State would have to examine the witnesses. I believe that you can
waive that right.
Mr. EVANS ( Weber). Doesn't it under this provision, now require examination and
commitment?
Mr. VARIAN. Possibly so.
Mr. EVANS (Weber). I just simply want to say that a case was recently decided in, Idaho where
there was a waiver and the person was proceeded against by information and the supreme court
discharged him because the commitment was improper.
Mr. VARIAN. I am free to admit, that upon your suggestion, it occurs to me now that that would
be so, but still I am not willing_I shall not be, as one at least, to put this power in the hands of the
defendant.
Mr. EVANS (Weber). I don't intend to put any power in his hands. The State can do it. But it is
not required; it can examine if it wants to.
Mr. VARIAN. If the amendment included, with the consent of the State, it would obviate my
objection.
Mr. THURMAN. I was going to suggest to add to the words proposed by the gentleman from
Weber, and also by both parties.
Mr. VARIAN. I suggest that the gentleman just add with the consent of the State, it will be
much more concise and will be better worded.
Mr. THURMAN. It is the best thing.
Mr. VARIAN. Does the gentleman make that as an amendment?
Mr. EVANS (Weber). I offer that as an amendment.
Mr. THURMAN. I second it.
Mr. VAN HORNE. Mr. Chairman, it strikes me the same object would be had by striking out the
words, examination and and just put in the words, commitment by magistrate.
Mr. EVANS (Weber . The magistrate
{315}
might refuse to give an examination, then.
The CHAIRMAN. The question is on the amendment offered by the gentleman from Weber as
amended.
Mr. THURMAN. Unless waived by the accused with the consent of the State.
Mr. WHITNEY. It is proposed to put all that between examination and and?
Mr. VARIAN. No; after commitment.
Mr. EVANS (Weber). Let it go after the word magistrate.
Mr. THURMAN. You will have to add to the word, magistrate, unless examination is waived
by the accused with the consent of the State.
The CHAIRMAN. The article as proposed to be amended would read as follows:
Offenses heretofore required to be prosecuted by an indictment shall be prosecuted by information after examination and commitment by a magistrate, unless the examination be waived by the accused with the consent of the State.
Mr. VAN HORNE. What is the rest of the amendment?
Mr. VARIAN. That is all.
Mr. BUYS. Mr. Chairman, it seems to me that this would waive the commitment which I don't
think we wish to waive. It seems to me it should be after information or the words unless the
examination be waived, as suggested by the gentleman from Utah.
Mr. WELLS. Mr. Chairman, I would like to ask some of these legal gentlemen a question,
whether or not, if an examination is waived, is it not the same as an examination? Why these
words are necessary at all?
Mr. EVANS (Weber). This, as it now stands, requires an examination. If there wasn't an
examination it would be error to take proceedings against the accused by information.
The amendment was agreed to.
Mr. EICHNOR. Mr. Chairman, I move to amend section 13 by striking ing out, after the word commitment and insert in lieu thereof, the grand jury shall consist of seven persons, of whom five must concur on indictment, but no grand jury shall be drawn and examined unless in the opinion of the judge of the district, public interest demands one.
The amendment was agreed to.
On motion of Mr. Evans, of Weber, the committee arose.
The committee then arose and reported to the Convention as follows:
Your committee of the whole, after examining and carefully considering the preamble and bill of
rights, report progress.
The Convention then at 4:43 p. m. adjourned.
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