Page:Dakota Territory Reports.djvu/85

 Enacting criminal procedure, is one of the "rightful subjects of legislation " in this Territory, and if Congress in- tended to establish a rule which would control Territorial legislation, it seems to us that it would, as it has often done heretofore, have made its provisions in the statute above referred to — in express terms — applicable thereto.

We are, therefore, of opinion, that this law of Congress does not, and never was intended to operate within the territories, and that it has no bearing upon the question at issue.

From the above reasoning and authorities, we hold that the Statute of 1862-3, under which the said challenge was made, was then and there in force, that the refusal to grant the challenge asked for, took from the defendant one of the greatest safeguards guaranteed by law, and hence the judgment in this case must be arrested.

In this opinion the court expressly declines to decide, or give any intimation as to the effect of the past proceedings upon a future prosecution. It orders the defendant into custody to answer to any indictment which may be found, reserving all questions arising upon any new indictment for future adjudication.

, : I dissent from the opinion filed by Mr. Justice Kidder, and from the judgment which the majority of the court have thought it proper to render in this case.

They declare they have discovered one error, " decisive in the case," and for this alone they arrest the judgment, reverse the entire proceedings, and hold the accused to await a new indictment. And, it must be borne in mind, this solitary error has relation to nothing that occurred during the progress of the trial before the jury (a trial that lasted over twenty days) — to nothing in regard to the formation of the petit jury itself— to nothing in the admission or rejection of evidence— nor to anything in the body of the charge to the jury, or in the responses of the court to the fifteen complicated and voluminous requests, or propositions of law, offered by the counsel for the defense.