Wade, O. J.
This is a case of murder, and the defendant is under sentence of death. He asks to have the judgment against him-reversed for the following reasons, •viz.: First, that one of the grand jurors who composed the grand jury that found and returned the indictment against him was an alien; second, that the indictment was not signed by the district attorney of the second judicial district'; and, third, that the court erred in overruling his ■motion for a continuance.
•1. In support of the proposition that the indictment was found by a grand- jury not legally constituted, the defend[325]*325ant made and filed an affidavit setting forth that one Lambert Eliel, who was a member of said grand jury, was not, at the time he so acted as such, a citizen of the United States, and that the defendant did not have knowledge of this fact until after said indictment had been found and returned into court. The territory does not controvert this statement by the defendant, and, for the purposes of this case, it must be taken as admitted that the said Eliel, at the time of so serving on said grand jury and the finding and return of said indictment, was not a citizen of the United States, and that this fact was unknown to the defendant at that time.
A person who is not a citizen of the United States and has not declared his intention to become such cannot lawfully serve as a grand juror in this territory, if advantage of this disability is taken at the proper time. But our statute provides that any male person of lawful age, who is a citizen of the United States, or who has declared his intention to become such, who is a tax payer and a bona jule resident of the county, shall be competent to serve as a grand or trial juror. E. S. § 780, p. 571. The defendant does not question the validity of this statute.
It does not appear in the record, and there is no intimation or claim anywhere, that this grand juror had not declared his intention to become a citizen. The presumption is that the board of county commissioners, whose duty it is to select grand jurors, performed their duties according to law and selected grand jurors having the qualifications prescribed by the statute until the contrary is made to appear. Therefore, if a defendant proposes to attack the competency of a grand juror, he must cause his incompetency to appear. The record in this case is an admission that the grand juror, Eliel, had declared his intention to become a citizen, and therefore that he was a competent grand juror.
Aside from all this, it conclusively appears from the record that the defendant, in pursuance of the statute, was given an opportunity to object to said grand jury, and [326]*326thereupon waived all challenges to the panel and polls of said jury. The record recites “ that, at the impaneling of the grand jury aforesaid, the defendant was personally present in open court and ivas also then and there represented by counsel, and then and there waived all challenges to the panel and the polls of said grand jury.” Our statute provides that “ when a party has been held to answer for an offense, and is in custody of the officer, it shall be the 'duty of the judge presiding, before the grand jury is sworn, to direct the sheriff of the county to bring such person into court and there notify him of his rights in relation to the challenging of the jury, and, if necessary, to appoint counsel for him. If such person then fails to challenge the grand jury, or any member thereof, he shall be deemed to have waived all objection to the same.” It. S. § 121, , p. 305. ■
The defendant knew for what he was brought into court, for he answered and said that he waived all objections to the panel and to the polls of the grand jury. Having had this opportunity, and failing to exercise his right of challenge, the statute declares that he thereby waives all objections to the grand jury. If, after failing to exercise his right of challenge,— if after looking upon the grand jury and thereafter waiving all objections to the same, — -he thereby declares himself satisfied with the grand jury, and asserts his willingness that each and every member thereof should examine his case, and he thereby promises to abide the result of such examination; if, after looking upon the array of grand jurors and making no objection to any one of them, and he thereafter ascertains that one of the grand Jurors is not a citizen, or has not declared his intention to become such,— his after-acquired knowledge conclusively shows his neglect and laches in making the proper inquiries at the time the opportunity was given him of exercising his right.of challenge. At that time the very least amount of diligence and care would have prompted the inquiry of each of the jurors if they wore citizens of the United States, [327]*327or if they had each declared their intention to become such. And so, if the defendant was indicted by an incompetent grand jury, it was his own neglect that brought about this result; and having in effect declared before the grand jury was sworn that he was satisfied, with each member thereof, and content to have them investigate and pass upon the charge against him, so far as to say whether or not he should be formally accused of crime, it is now too late for him to object to said grand jury, and his right is gone.
2. The statute provides that “ each indictment must be signed by the attorney prosecuting.” R. S. § 156, p. 309. Objection is made to this indictment for that it was not signed by W. T. Pemberton, the district attorney for the second judicial district, or b}7 O. J. Walsh, the deputy district attorney for that district, but that it was signed by “Robert B. Smith, special district attorney for second judicial district, Montana territory, appointed by the court to prosecute in the above-styled cause,” and therefore that said indictment is yoid.
The authority of Robert B. Smith in the premises came from an order and appointment by the court, as follows:
“In the District Court of Montana Territory, County of Beaverhead.
“ Territory of Montana v. Thomas M. Harding.
“ ORDER OF COURT.
“ At a regular term of the district court of Beaverhead county, Montana territory, it appearing to the court that W. Y. Pemberton is absent from the county of Beaverhead, and that there is no qualified or acting prosecuting attorney for the territory now present at court, it is therefore ordered by the court that Robert B. Smith, Esq., be, and he is hereby, appointed to represent the territory in the above-entitled cause, and to prosecute the same both before the grand jury and on the trial thereof.”
The statute also provides that the district attorneys for each district shall be public prosecutors in their respective districts, and shall sign all bills of indictment that may be [328]*328found- by the grand jury. E. S. § 57, p. 414. It is further-provided that the indictment shall be sufficient if it can be understood therefrom that the indictment was found by the grand jury of the county in which the court is held; that the defendant is named or described in the indictment as'a person whose name is unknown to the grand jury; that the offense was committed within the jurisdiction of the court, or triable therein; that the offense charged is clearly set forth in plain and concise language, without repetition; and that the offense charged is stated with such a degree of certainty that the court may pronounce judgment upon conviction, according to the right of the case. E. S.
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Wade, O. J.
This is a case of murder, and the defendant is under sentence of death. He asks to have the judgment against him-reversed for the following reasons, •viz.: First, that one of the grand jurors who composed the grand jury that found and returned the indictment against him was an alien; second, that the indictment was not signed by the district attorney of the second judicial district'; and, third, that the court erred in overruling his ■motion for a continuance.
•1. In support of the proposition that the indictment was found by a grand- jury not legally constituted, the defend[325]*325ant made and filed an affidavit setting forth that one Lambert Eliel, who was a member of said grand jury, was not, at the time he so acted as such, a citizen of the United States, and that the defendant did not have knowledge of this fact until after said indictment had been found and returned into court. The territory does not controvert this statement by the defendant, and, for the purposes of this case, it must be taken as admitted that the said Eliel, at the time of so serving on said grand jury and the finding and return of said indictment, was not a citizen of the United States, and that this fact was unknown to the defendant at that time.
A person who is not a citizen of the United States and has not declared his intention to become such cannot lawfully serve as a grand juror in this territory, if advantage of this disability is taken at the proper time. But our statute provides that any male person of lawful age, who is a citizen of the United States, or who has declared his intention to become such, who is a tax payer and a bona jule resident of the county, shall be competent to serve as a grand or trial juror. E. S. § 780, p. 571. The defendant does not question the validity of this statute.
It does not appear in the record, and there is no intimation or claim anywhere, that this grand juror had not declared his intention to become a citizen. The presumption is that the board of county commissioners, whose duty it is to select grand jurors, performed their duties according to law and selected grand jurors having the qualifications prescribed by the statute until the contrary is made to appear. Therefore, if a defendant proposes to attack the competency of a grand juror, he must cause his incompetency to appear. The record in this case is an admission that the grand juror, Eliel, had declared his intention to become a citizen, and therefore that he was a competent grand juror.
Aside from all this, it conclusively appears from the record that the defendant, in pursuance of the statute, was given an opportunity to object to said grand jury, and [326]*326thereupon waived all challenges to the panel and polls of said jury. The record recites “ that, at the impaneling of the grand jury aforesaid, the defendant was personally present in open court and ivas also then and there represented by counsel, and then and there waived all challenges to the panel and the polls of said grand jury.” Our statute provides that “ when a party has been held to answer for an offense, and is in custody of the officer, it shall be the 'duty of the judge presiding, before the grand jury is sworn, to direct the sheriff of the county to bring such person into court and there notify him of his rights in relation to the challenging of the jury, and, if necessary, to appoint counsel for him. If such person then fails to challenge the grand jury, or any member thereof, he shall be deemed to have waived all objection to the same.” It. S. § 121, , p. 305. ■
The defendant knew for what he was brought into court, for he answered and said that he waived all objections to the panel and to the polls of the grand jury. Having had this opportunity, and failing to exercise his right of challenge, the statute declares that he thereby waives all objections to the grand jury. If, after failing to exercise his right of challenge,— if after looking upon the grand jury and thereafter waiving all objections to the same, — -he thereby declares himself satisfied with the grand jury, and asserts his willingness that each and every member thereof should examine his case, and he thereby promises to abide the result of such examination; if, after looking upon the array of grand jurors and making no objection to any one of them, and he thereafter ascertains that one of the grand Jurors is not a citizen, or has not declared his intention to become such,— his after-acquired knowledge conclusively shows his neglect and laches in making the proper inquiries at the time the opportunity was given him of exercising his right.of challenge. At that time the very least amount of diligence and care would have prompted the inquiry of each of the jurors if they wore citizens of the United States, [327]*327or if they had each declared their intention to become such. And so, if the defendant was indicted by an incompetent grand jury, it was his own neglect that brought about this result; and having in effect declared before the grand jury was sworn that he was satisfied, with each member thereof, and content to have them investigate and pass upon the charge against him, so far as to say whether or not he should be formally accused of crime, it is now too late for him to object to said grand jury, and his right is gone.
2. The statute provides that “ each indictment must be signed by the attorney prosecuting.” R. S. § 156, p. 309. Objection is made to this indictment for that it was not signed by W. T. Pemberton, the district attorney for the second judicial district, or b}7 O. J. Walsh, the deputy district attorney for that district, but that it was signed by “Robert B. Smith, special district attorney for second judicial district, Montana territory, appointed by the court to prosecute in the above-styled cause,” and therefore that said indictment is yoid.
The authority of Robert B. Smith in the premises came from an order and appointment by the court, as follows:
“In the District Court of Montana Territory, County of Beaverhead.
“ Territory of Montana v. Thomas M. Harding.
“ ORDER OF COURT.
“ At a regular term of the district court of Beaverhead county, Montana territory, it appearing to the court that W. Y. Pemberton is absent from the county of Beaverhead, and that there is no qualified or acting prosecuting attorney for the territory now present at court, it is therefore ordered by the court that Robert B. Smith, Esq., be, and he is hereby, appointed to represent the territory in the above-entitled cause, and to prosecute the same both before the grand jury and on the trial thereof.”
The statute also provides that the district attorneys for each district shall be public prosecutors in their respective districts, and shall sign all bills of indictment that may be [328]*328found- by the grand jury. E. S. § 57, p. 414. It is further-provided that the indictment shall be sufficient if it can be understood therefrom that the indictment was found by the grand jury of the county in which the court is held; that the defendant is named or described in the indictment as'a person whose name is unknown to the grand jury; that the offense was committed within the jurisdiction of the court, or triable therein; that the offense charged is clearly set forth in plain and concise language, without repetition; and that the offense charged is stated with such a degree of certainty that the court may pronounce judgment upon conviction, according to the right of the case. E. S. § 170, p. 311. The statute also provides that the indictment shall be set aside by the court in which the defendant is arraigned, upon his motion, in either of the following cases : When it is not found indorsed or has not .been presented as prescribed by this act (Criminal Practice Act); where the names of the material witnesses examined by the grand jury are not inserted at the foot of the indictment, or indorsed, thereon; when any person has been permitted to be present during the session of the grand jury while the charge embraced in the indictment was under consideration, except those allowed by law. Id. § 305, p. 315.
The expression of these particulars would seem to be the exclusion of all others; and if the indictment contains what the statute requires, and is not obnoxious to any of the particulars above named, then it cannot be attacked by a motion to quash, or, if it is, such a motion ought to be overruled. The failure of the district attorney to sign an indictment would not, therefore, seem to be a fatal omission; but be this as it may, the indictment in this case was signed by Eobert B. Smith, the attorney prosecuting, deriving his authority so to do from the foregoing order of court; and this presents the inquiiy whether the court possessed the power and authority to make such an order. There seems to have been no objection to the appointment of Smith. The necessity for such an appointment appears in the order. [329]*329The recitals therein a.re like the findings or judgment of a court, and cannot be attacked by a mere affidavit after the fact. If the district attorney had been present, or if his attendance upon court could have been procured, the fact ought to have been made known pending the appointment of Smith. This seems to have been the situation: The district attorney was absent from the county, and there was no one present qualified to act as prosecutor for the territory. Thereupon the court appointed Robert B. Smith to represent the territory and to prosecute this cause.
No doubt it is the duty of the district attorney to attend court, to sign indictments, and to prosecute for the territory. But if he fails to do his duty; if he absents himself from the county, or is present, but disqualified from acting either from sickness or for any other reason, must the wheels of justice stop and the administration of the criminal law be suspended ? Is the court powerless if one of its officers fails to perform his duty? We think not. We believe that if a court, having general common law jurisdiction, is established by law, and a judge is lawfully elected or appointed to preside over such a court, such judge has the inherent right and authority to do every act proper and necessary to set such court in motion and to bring causes to trial and judgment. He may provide grand and trial jurors, and have them summoned into court; he may issue process for witnesses; he may appoint an executive officer to serve processes and orders; he may appoint a clerk to authenticate such acts with his seal of court and to keep the records; and he may appoint a prosecutor to represent the territory or commonwealth in criminal causes, to sign indictments, and to prosecute before a trial jury. All these powers necessarily flow from the establishment of a court of general jurisdiction according to law, and the lawful appointment or election of a judge to preside over such court. The legislature must have had these powers in contemplation; and also the fact that criminal cases might arise in which the public prosecutor might, for some reason, be dis[330]*330qualified or disabled; for in tbe making and enactment of the criminal practice act, in many sections it is expressly provided, not that the district attorney shall sign indictments, but that the “attorney prosecuting” shall sign them. Why authorize the “ attorney prosecuting ” to sign' indictments if, in all cases, indictments must be signed by the district attorney? Suppose it. became necessary to indict the district attorney. He could not be removed or compelled to resign because he had been bound over to await the action of the grand jury. Must the indictment and prosecution against him fail because he refuses to sign the indictment and prosecute himself? In such a case, or in the absence of the district attorney, the court is clothed with power to meet the emergency and to appoint a prosecuting officer, who, for the time being, becomes the “attorney prosecuting,” and thereby authorized to sign indictments. By the organic act of .the territory, the district courts are given common law and general criminal jurisdiction. This jurisdiction they are bound to exercise. They are bound to try and to determine criminal causes, and this can only be done through the instrumentality of grand juries, indictments, and attorneys prosecuting for the territory.
In the case of Clawson v. United States, 114 U. S. 487, the supreme court of the United States says: “A venire to summon jurors is a writ necessary to the exercise of the jurisdiction of the court, and agreeable to the principles and usages of law, where it is not forbidden or excluded, and where the affirmative provisions of law have, so far as they extend, been first observed. In the case of United States v. Hill, 1 Brock. 156, Chief Justice Marshall, speaking of the law as it then existed, says: ‘It has been justly observed that no act of congress directs grand juries or defines their powers. By what authority, then, are they summoned, and whence do they derive their powers? The answer is that the laws of the United States have erected courts which are invested with criminal jurisdiction. This jurisdiction they are bound to exercise, and it can only bo exercised through [331]*331the instrumentality of juries. They are, therefore, given by a necessary and indispensable implication. But how far is this implication necessary and indispensable ? The answer is obvious. Its necessity is co-extensive with that jurisdiction to which it is essential.’ ”
If a court, having general criminal jurisdiction which it is bound to exercise, and is charged with the duty of trying criminal causes, which duty can only be performed or jurisdiction exercised through the instrumentalities of grand juries, and the law failing to provide such instrumental.ty, has, by necessary and indispensable implication, authority to provide and summon grand juries, then, in such a case and by a similar implication when the necessity arises, and the district attorney is absent or disqualified and the law fails to provide for such an emergency, the court has the power to appoint an attorney to prosecute and to represent the territory, so that the jurisdiction conferred, and which is bound to be exercised, may not fail. This power comes from the law which has created our district courts and invested them with general criminal jurisdiction, which they are bound to exercise and which can only be done through . the instrumentality of prosecuting attorneys. This implied power can only be exercised in cases of necessity and in cases for which the law has failed to provide; and then it is co-extensive with the jurisdiction to which it is essential. If the district attorney had been present and not disqualified, no necessity would have arisen to call into exorcise this implied power of the court; but in his absence and in the absence of any one authorized to prosecute for the territory, and the law failing to provide for such a case, it was the exercise of lawful authority for the court to appoint a suitable person to represent the territory and prosecute the action, who, for the time being and for the case in hand, became the “ attorney prosecuting.”
3. After the indictment had been returned, the defendant arraigned, and his plea entered, he made a motion for a continuance until the next term, because of the absence of ma[332]*332terial witnesses whose testimony, or what was expected to be proved by such witnesses, was set forth in affidavits made by the defendant, accompanying said motion. Thereupon the prosecution admitted that if said witnesses were present they would testify as set forth in said affidavits, whereupon said motion for a continuance was overruled, the cause went to trial, and said affidavits were read in evidence to the jury, on behalf of the defendant, as and for the testimony of said absent witnesses. Under those circumstances the defendant says that the overruling of his motion for a continuance was error, and his counsel in their brief maintain that the defendant was entitled to the personal attendance of his witnesses to be examined orally in court, and to confront thern with those called to impeach their evidence. This branch of the case is precisely parallel to that of Territory v. Perkins, 2 Mont. 470, decided by this court more than ten years ago, and to which decisions in the district courts since then have conformed. We see no reason for disturbing or modifying that decision in any respect, and confirm it.
The accused has the right to confront his accusers, but it does not follow therefrom that the witnesses for the defendant have the right to confront the witnesses for the prosecution. It is safe to say that a defendant will make a much better case for himself in his affidavit for a continuance than he.could with his witnesses in court; and if, notwithstanding what he says he can prove in his affidavit, the territory is willing to go to trial, and to admit that his witnesses would, if present, testify as he sets forth, no injury could be done to the defendant. If his witnesses were not myths, if they really had being and existence, he would generally gain more than he would lose, by not exhibiting them before the jury. It is easy enough for a defendant to set forth in an affidavit the names of witnesses who are absent from the territory, and in a foreign country, as in this case,— and the higher the crime the further away the witnesses are generally declared to be, — and if such shadowy showing can compel the continuance of criminal cases, then [333]*333there can be no more criminal trials in this territory. The defendant should be given a reasonable opportunity to prepare for trial, and to procure the attendance of his witnesses, if the court is satisfied that he has any witnesses, and that his application for a continuance is not a sham. The trial court should exercise a sound and legal discretion in this regard. No guilty man is ever ready for trial. Every continuance of his cause brings him so much nearer to an acquittal. The trial court must judge whether his application for continuance is made merely for delay, or in good faith, to the end that justice may be done; and unless there is an abuse of legal discretion in this regard, appellate courts will not interfere.
We do not think the rule in the Perieins Case could ever work an injustice or hardship to a defendant, and generally in its operation it would give him a very great advantage. If his witnesses are out of the territory, or in a foreign country, he could not compel their attendance upon his trial, and he wrould be obliged to take their depositions, which he would have the right to do, but which when taken would be no better than the testimony set forth in his affidavit for a continuance. If the affidavit should state the truth, the deposition would, in effect, be just like it, and one would be no more beneficial than the other to the defendant.
A different rule prevails in Texas and some other states; but in those states they have no statute similar to our own, under which the Perldns Case was decided.
The defendant had a fair and impartial trial under the statutes and decisions of this territory. After a full consideration, the trial court refused a new trial, and, finding no error in the record, the judgment is hereby affirmed.
Judgment affirmed.
MoLeary, J., concurs.