by John Marshall Harlan

“ While a confession made to one authority should not go to the jury unless it appears to the court to have been voluntary, yet, as the plaintiff in error chose to let its admissibility rest upon the case made by the detective, without any intimation that it would be different if the policeman was examined. ”

“ But alterations which do not increase the punishment, nor change the ingredients of the offense or the ultimate facts necessary to establish guilt, but-leaving untouched the nature of the crime and the amount or degree of proof essential to conviction-only removes 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. ”

“ The Criminal Code of Utah does not authorize the trial by triers of grounds of challenges to be had apart from the court, and in the absence of the defendant. The specific provision made for the examination of witnesses 'on either side.' subject to the rules of evidence applicable to the trial of other issues, shows that the prosecuting attorney and the defendant were entitled of right to be present during the examination by the triers. ”

“ It appears that six jurors were separately challenged by the defendant for actual bias. The grounds of challenge in each case were denied by the district attorney. For each juror triers were appointed, who, being duly sworn, were, 'before proceeding to try the challenge,' instructed as required by section 252 of the Criminal Code; after which, in each case, the triers took the juror from the court-room into a different room and tried the grounds of challenge out of the presence as well of the court as of the defendant and his counsel. ”

“ Roscoe (p. 554) states the rule to be that 'in order to induce the court to call another officer, in whose custody the prisoner has been, it must appear either that some inducement has been used by, or some express reference made to, such officer.' Russell says: 'For the purpose of introducing a confession in evidence, it is unnecessary, in general, to do more than negative any promise or inducement held out by the person to whom the confession was made.' Vol. ”

“ The natural life, says Blackstone, 'cannot legally be disposed of or destroyed by and individual, neither by the person himself, nor by any other of his fellow creatures merely upon their own authority.' 1 Bl. ”

“ It was, perhaps, to this part of the case the court referred when, in the charge to the jury, it said that the prosecution 'has introduced a vast amount of circumstantial evidence.' Be this as it may, it was a material question before the jury whether the body examined by the surgeon was the same one that the father of the deceased had left at the depot, and therefore the body of the person for whose murder the defendant and Emerson were indicted. ”