Blue hen's chicken. [volume] (Wilmington, Del.) 1848-1854, 1851-06-20

CuSttAs
inc mainly, as they believe to this preludicel
md excitement, they could not procure any :
other persons to make afdavits OF this stale OF
pubic feeling, though such persons fully al y
mitled il in conversation. \
The court isada the same suggestion in reie- =
renee to the time OF making this motion; and
also as 10 the kind Of evidence 10 support IT.
In the case OF Sam. BuuIs A Harr. Rep os2'
ths court laid rule to show cause, and rsquir,
ed the aflidavts TO be supported, and alloweu
them 10 be traversed.
Mr.. Bayard objected 10 this, and said the
change of venue was always founded on alhda-
Wits, which might be reversed by correct aihda-
Wits, And the ailidgvls here filed were not I
merely Of opinion, but oil the iacls on whlch /,
shat opinion IS founded. Il
The Attorney Genelal insisted that the aifida-
Wis should be supported by proof at the bar
rs in Burr's case. 4
The court aij rule TO show cause why
suggestion should not be entered Oh the record
changing the venue to Kent eoualy, and said
that they did this, pursuing the course pointed 4
out 10 lie court of general sessions in Burr
case; but they would, on the hearing, inquire
into the time Of making this motion, and the
manner and kind Of evidence by which II was
to be supported. 1t seemed TO them that a rule
to show cause was the proper course sven It It
was heard on aifidavis, Tor lime would then be,
allowed for corfectof aifidavis to BIS filed.
At the meeting of lhs court in The afternoon,
the court said they were satisfied that both the
motion to quash the array, and that to change
the venue were out of order, until after the phi
soner had been arranged and pleaded. They
therefore would direct his afraignmnnt, unless
Lis counsel desired TO be heard in this qsesllon,
and il Sc, they would con6ne the argument 10
that point.
The defendants counsel did not think il Of any
consequence to the defence, and yielded the
point without further argument.
The Clerk then arragnod the prisoner In due
form, and he pleaded not guilty.
Mr.. Houston resumed the motion TO change
the venue to Kent county, and this matter was
fully argued by counsel on both sides.
The court said they would deliyer their opin-
ion on this question in the morning, and would
now hear what answer the State had to give 10
the motion made to quash the array OF Jurors,
on the ground that only 10 instead of 4s had
been summoned to attend this court.
After argument by the Attorney General, the
court said:--
The act Of 1911. (Dig. I43,) provides that
whenever the Judges shall issue precept tor
holding court Of Oyer. ihe Sheriff shall, ten
DAYS before such court, summon 81 grand Jul
rofs and 45 petit Jurors 10 serve at such court;
and provides that if an Indictment has bsen found
already the clause for sumponing grcnd Jurors
NAV be omitted from The precept.
The act Of ls49, 10 vol. A2l, requires the
ProhonotarS aud Clerk Of the Peace, wnen
snch precenl is issued, to draw from box tho
names Of 48 Jurors, to be summoned as petit
Jurorsi to attend the court of Oyer, and to deli
yer a list of the Jurors so drawn TO the Sheriff
to be summoned; provided that II the day as.
signed for holding such court OF Oyer shall be
at a time when there is a lett Jury In attend
ance upon the superior court, Then such Jury
shall constitute part Of tie panel Of the petit
Jurors, to be summoned 10 at end the court o
Oyer, and only so many shall be dawn IRON
the boxes as sh Ill halnecessary 10 complete til,
number of 40 persons. The prrcept Tor hold
ine the present court, directs the Sheriff to sum
mon as petit Jurors, who should have beer
made IN Of I8 drawn By the Clerk oil the Peace
and Pfothonoiary, and the 80 attending The su
perior court now in session; but these last a
we'll as the IS were required by the law and b,
tbs precept To be summoned to attend the couf
OF Oyer and Tefniner. 1t appears that thi
has not besn. done, and we have but Is juror
attending this court Tegu arly summoned
The array must therefore be quashed; but tn,
9th section Of The act of i849 seems to give ful
power 10 this court 10 provide 5 remedy, ant
we will hear the prisoners counsel on the ques
ton whether we may not now order new
panel to be drawn and returned forthwith TIL,
court then adjourned
SECOND DAY.
The court being opened and the prsone
placed at the bar,
The counsel for the prisoner were heard OF
the point which they were directed to argue
viz whelheralter quashing the array Of jurors
the court had not power to order another jurl
drawn and summoned forthwith.
Their argument was-that the court Of Oyer
is now district court, setting only by precepi
and having no terms. The other courts hav
terms assigned to them by law; and that the at
of ls49 which declares shat if from any caus
il should happen that the proper number Of Ji
rors should not be drawn, OF il from any caus
the panel of Jurors so drawn should be quashe
by the court, then it shall and may be Lawful
for the said court TO make such order as the
may deem expedient for the drawing and sum
monng the requisite number Of Jurors 10 serv
al ihcf term. That this provision must be con
structed as applying only to the superior cour
and court Of general sessions which have term
and could not be extended to apply to the cour
OF Oyer, which has no terms.
The court o. er-ruled this argument, and al
frmed their power under this act to order TIN
drawing and summoning Jurors forthwith, bu
they would always exercise that discretion il
reference 10 the case in hand, and in capita
case, when the prisoner has the right to hav
a copy of the panel Of jurors, and full time al
lowed to canvass tho Jurors, TO consult counsel
lne court WOulu uiWays give ine prisoner iu
time to prepare for his challenges.
The court then gavean opinion at great lengl
against the motion to change the venue to Ker
county; and ordered new Jury 10 be draw
and summoned, and the case 10 be tried on Wed
nesday, the 25th inst.
The court cautioned the Jury and the publ
against any differences to be drawn unfavorabl
TO the prisoner, because Of the delay occasione
by quashing the panel Of Jurors. 1t was III
duty ofcounsel on either side 10 have made hi
motion as soon as il was discovered that onl
l6 Jurors had been summoned, as this defe,
would have vitiated the whole proceedings eve
after trial.
In regard TO the error or mistake which ha
led to this delay, the cout had felt il their dut,
fully TO investi ate 1t, with view to place III
responsibility where it belonged, if any Gu
pabe neglect CT misconduct existed; and the
fully exculpated both the Clerk and Sheriff Z
any neglectful or careless discharge of duty
and ascribed il solely to an error Of iudgemer
forwarded on an intricate and obscure law; an
after careful consideration and advice, the cou