At April term, 1884, of the Third judicial district court of Utah territory, Rudger Clawson was indicted, under two counts, in the same indictment, one for polygamy, and the other for cohabiting with more than one woman. The first count was founded on section 5352 of the Revised Statutes of the United States, as amended by section 1 of the act of congress of March 22, 1882, (22 St. 30;) and the second on section 3 of that act. By section 4, counts for those offenses may be joined in the same indictment. The defendant was tried in October, 1884, and found guilty on both counts, as charged; and sentenced, on the first count, to pay a fine of $500, and to be imprisoned three years and six months; and, on the second count, to pay a further fine of $300, and to be imprisoned the further term of six months; and, further, to be confined till the fines be paid. From this judgment he appealed to the supreme court of the territory, which affirmed the judgment and sentence, and he has brought the case to this court by a writ of error.
The indictment was presented and filed in court, April 24, 1884. On the thirtieth of April, 1884, before plea, the defendant moved to set aside the indictment, on the ground that the grand jury was not legally constituted, in that qualified grand jurors, drawn and summoned, were illegally excluded from the grand jury, on the challenge of the prosecuting attorney. The motion was heard on an agreed statement of facts, which is set out in the bill of exceptions, and was overruled, and the defendant excepted to the decision. The first error here assigned is that that motion was improperly overruled.