The Vigilantes of Montana: 1864 Revisited

California Supreme Court Decision

After the deliberation, Chief Justice David Terry delivered the unanimous opinion of the court, which is quoted in detail not only because it is an eloquent defense of our legal heritage, but also because its content is so pertinent to the issues of justice involved in a consideration of the life of Henry Plummer.

One of the dearest rights guaranteed by our free Constitution is that of trial by jury.... A trial before a prejudiced jury, or one composed of men who had already prejudged the case, is a mere mockery of justice.... The very meaning of the word trial, which is an "examination by a test," shows that the triers are to act not upon previously formed opinions, but upon inquiry, first instituted and carried on before them. Moreover, if each juror forms his opinion before taking his seat, the case is, in reality, predetermined by persons who, at the time of making their decision, are not jurors. So that the wholesome restraint of the oath administered to the jurors -- the solemn proceedings of the Court -- the opportunity to observe the demeanor of the witnesses -- the thorough public sifting and scrutiny of the evidence -- the explanations of counsel -- the instructions of the judge, and the deliberations of the jury, enlightened by private discussion after they have retired -- are so many useless forms, and the parties have only the appearance of jury trial, without any of its benefits.... There are certain legal safeguards which must be preserved immaculate; the purity of the stream of justice is involved in it. One of these safeguards is that the jury shall be impartial and unbiased, their minds free from prejudgment. I must say that he who gives his consent to serve on a jury, when he must know that his mind is utterly disqualified from doing justice between the prisoner and the State, is guilty of gross misconduct. To convict one under such circumstances, is to perpetrate an offence little short of murder itself.

Can it be insisted that the juror was impartial; that he possessed that moral perception, that sense of justice, that integrity of character which would qualify him to pass upon the life of a fellow-citizen? The affidavit of Pulse stated that Getchell, soon after the killing with which defendant was charged, declared that "the people ought to take Plummer out of jail and hang him," and on other occasions expressed a belief that he was guilty of murder. In addition to the affidavits, witnesses were examined both by the accused and the prosecution, as to the facts alleged. The testimony of the witnesses corroborate the statement in the affidavits, and, we think, clearly establish that such a declaration was made by the juror.

The remark of Denny, as stated by Southwick, was that "Plummer ought to be hung, and if he was at the Bay he would be hung before night." Smith and Fraser both testify to hearing him say that Plummer ought to be hung. This conscientious juror does not seem to have troubled himself to inquire whether the defendant was guilty or not; with him, it appears that the accusation was sufficient; in the language of witness Smith, "He appeared to be down on all men situated as Plummer was."

It is clear that neither of these jurors was competent to sit upon the trial of defendant, if indeed they were competent to sit in any case involving the life or liberty of a citizen. A man who could so far forget his duty as a citizen, and his allegiance to the Constitution as to openly advocate taking the life of a citizen without the form of law, and deprive him of the chance of a jury trial, would not be likely to stop at any means to secure, under the forms of a legal trial, a result which he had publicly declared ought to be accomplished by an open violation of the law.

Judgment reversed, and a new trial ordered.