The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1876-04-05

dilaory plea and 1t Is general rule that must DO
c c",e the accuracy u snS Sc pss
tain 70 every intent 4 Chit PL, AS, ASS; Bishop
on CT; Pro, sec a2i; o'connel vs. r. II Cl ana
Fin, 1855; State vs. Bryant, 10 Yarger, 527 State vs.
Newer, Z Blackf, 3o7; State w. Brooks, 8 Ala, /;
Hardin State, q Indiana, 34z)
LISTS VALID.
There II abundant that portion Of the plea
alleging that the annual list OF grand jurors not
wholly selected from the petit jury lists made out by
that she jurors selected at the proper time and
place. We must assume, a. there are no allegations
TO the contrary. that the Board, composed OF the
Mayor and other officers, met on the nrst Monday OF
September 1875 At tho ONCE OF the Commissioner OF
Jurors and organized as required BY law that Taylor
there and produced them all the petit jury lists
then in his Office, and that they selected mainly
from such lists not less than 600 nor more
sor~e - ,arors II Il NOT alleged how
persons came TO be selected whose names were
not upon the petit jury list nor how many we're thus
suppose that the number was not more than two or
three No authority be found holding that in such
case the whole list IL irregular and null that none
Of the persons IL could be drawn Tor grand jurors
few names without fraud or design were, as
VIC may assume BY accident or oversight. also put
law requires dity TO DO drawn and sum-
moned to attend court This precise number
vantage to the persons who may be presented for in
dictment Tho sole object OF rquiring this number -
70 secure the attendance At court OF sunclcnt num-
be drawn no harm would be done any accused person.
provided q sufficient number OF qualified jurors were
drawn and empanelled. No person who may be COM
planned against before the Grand Jury can have any
part the selection from the Atty OF those who are
to constitute the Grand Jury. That duty Of
selection devolves upon the Court II may
select sufficient number and discharge the rest.
and It may determine In It's own way what mode shall
be 70 make the selection IRON the my and Tor
what any Of the nny may be discharged ex
cused Hence the fact that some OF the my may
not have been upon the petit jury list made by Taylor,
SO long as there is complaint that all the persons
actually and cmpanellcd were upon that list
shows OF which tho defendant could take ad
The People, 81 How Pr r., l4o Friery's Case,
Keyes, "A; vanhook Va State II Texas, 2d2)
DIpEcrIvE PLEA
to Irregularities In the mode Of selecting drawing
grand Jurors committed without fraud design,
qualified jurors But the portion OF the plea
considering is defective for another reason II does
give the names OF tho persons who are alleged 10
have been selected and drawn and who wore not upon
the petit jury lists This always required in plea Of
abatement when defects or such character alleged
Suppose the plea had been that number OF the
Jurors actually ompanellcd were not qualified
or that they had not been sworn, plea setting
up such matters for the purpose Of quashing the
indictment would have 70 specify the names. In
O'Conneli Regina Soupra, plea abatement that
certain Of tho witnesses upon whose evidence the in
dictment was found were not sworn, held bad
upon general demurrer among other reasons because
the OF the witnesses not given in the plea
In this the should have been given $50 that
II the District Attorney had chosen to join issue Of
fact upon the plea he would have known precisely
what allegations he would have to meet
DUNLOP COMMISSIONER DE FACTO.
But moro allegation Of the one that
TAYLOR, who Commissioner OF Jurors was
prevented by duress from attending upon
for the October term. But here again the allegations
Of tho plea arc very moagre and deficient 1t is ad-
County Clerk may assumed to have been present. as
he required TO draw the petit jury at the same
time, and probably also to certify tho drawing OF tho
Grand jury We must assume that the drawing was at
his Office; that the other officers required be present
were there; that the ballots were prepared, com.
pared and deposited in the Grand Jury box by
some one acting as Commissioner OF Jurors and
claiming the right to act as such; that his
action was recognized BY the officers who witnessed
and were required TO witness the drawing; that the
jurors drawn certified the Sheriff by the proper
officer, and were summoned by him; that they ap-
the Court as the Grand Jury without any objection
from any ono All these facts must DO assumed as
Of them are denied, some or them admitted and
all required by the statute The plea does not disclose
how the jury drawn, nor by whom There is no
allegation IN II that the drawing was not made by
as ssionsr and there is no allegation that Tay
lor acted such ut any time. The allegation him
is simply that he was Commissioner during that year,
which allegation Is fully satisfied by constituting il
mean that he dc jure Commits opcr Consist
emily with that allegation therefore, applying rule
OF strict construction applicable TO plea We
NAV hold upon all the facts above alluded to that
some other person claimed the o1co and acting
at least as do iacto Commissioner, and that he was
recognized such by all the officers who had relations
with HIM or his work. The maxim onnid prGsumantur
rite Il soeweHr aeta probetwr contrara
may DO invoked against the loose aega-
tions OF irreguarity and error contained in the plea
to for the conclusion we have reached that the jury
n not drawn BY q de jure Commissioner at lcast
drawn by . de facto Commissioner. A jury drawn by
q do iacto Commissioner would be regular as one
drawn by de jure Commissioner Q.eech's case, Q
Howells State Trials 35S; Wilcox va Smith, Wcnd
23l People va Cook, New York, 67l The case OF
o'Connell vs. Regina, supra shows how strictly
such pleas are construed. There the plea was
evidence OF four Witnesses and that the said witnesses
were not sworn, and the plea was held bad, among
other reasons, because there no averment in the
plea that the bin was not found upon the evidence Of
other witnesses who were sworn besides those who
alleged to have been examined without being
have been authorized by law give their evidence
upon affirmation instead Of upon oath. 80 there
Syermens IN sn pea mat tho Jury was not drawn
the right 10 act as Commissioner OF Jurors
In Leech's case plea IN abatement that the grand
who were noe sheris, held bad because the Court
might infer that the persons named acted dc facto
shori0s and were recognized as such We therefore
sustained
THE CHARGE WAS xuRprR
IL is claimed that the defendant could not be con-
count on the ground that that count was void,
for dupcity in setting up two dis
Ssse That count 'nS
burglary in The third degree FORM show thar
q complete offence was committed, and then charged
OF the burglary, committed the murder charged There
but one offence charsed-that OF killing while
engaged In the commission OF felony laws OF 1873
chapter 644l An indictment under that provision oil
the statute must describe the felony and SUBJ
stantay facts showing that tho accused engaged
In tho commission thereof II certainly can do no
harm TO the accused, and could not misIead
him as TO the charge he was called upon
TO answer, that the offence was described
more fuy or minntciy than necessary. II is obvious
that only offence designed be charged In the
count and no could read II without knowing that
the charge murder while engaged In the commis.
sion OF the felony described.
conPLETE BURGLARY
IL Is further claimed that the first Is detective
In charging that the killing committed after tho
complete offence OF burglary had been committed, and
not while the accused was engaged In the
Of The burglary. The count does not bear this con.
struction IL describes q complete burglary and
then alleges that the accused committed the muir
der while engaged In the burglary not after hc had
committed H. II burglar break into dwelling house
bureariously with the intent to steal the offence is
doubtless completed before he leaves the building but
he may DO said 10 10 engaged the commission OF the
crime until he leaves the building with his plumber
and " while there engaged in securing his plumber or
In any Of the acts Immediately connected with his
crime, ne kiis any one resisting him, he guilty OF
murder under The statute