Evening star. [volume] (Washington, D.C.) 1854-1972, 1883-07-18

AND The PLEAS IN THE CASES OF KELLOGG, PREM
TIss, COOMEs AND MILLER ovERRULED.
Judge Wyie this morning announced his decis-
ion in the case OF the pleas filed and argued before
him In the case OF Ex-senator VIM. Pitt Kellogg
indicted for receiving money while United States
Senator for services In relation to contract with
the United States and of c. 4. Prentiss, late CASH
Ter of the German-American National Bank, in
dtcted for embeZZlement The pleas both involved
the manner OF filling vacancies on the grand jury.
Mr.. Ker, Of special counsel Tor the government;
logg; Gen. Mussey, counsel for Prentiss; Mr.. Mer-
rlck and other counsel were present.
The Decision.
Judge Wylie said that in the case OF the United
States against VIM. Pitt Kellogg, the defendant
had n.ed eleven pleas in abatement These pleas
had been met on the part of the government by a
demurrer As the facts set out in the plea are de-
sary that there should be any issue OF fact made
up for the consideration Of the jury. Whether the
pleas are SUFFICIENT in law or suf1cient in fact are
questions, therefore, determinable by the court.
whether the questions to be determined are qnes-
tons OF law or Of TACT or in what share the ques
larry into the consideration OF the questions
Raised he ref"Fred to comparison between the
the Revised Statutes OF the District OF Columbia
relating to the manner of filling the grand jury.
he Commented on the language OF the law permit
ting the clerk to throw out names OF Jurors drawn
who were "diSabled" from serving
t'THE WORD DISABLED"
might comprehend disqualified, but the court
would hardly accept such an assumption. 1t
would limit the meaning OF the word to physical
dlSqualif1cations When the act Of 1862 was passed
there was Circuit Court and an Independent
Criminal Court in the District He commented on
the method then followed OF filing the jury box,
the register of the city of Washington, and the
clerk OF the Levy Court who selected the names,
being empowered very properly to throw out the
names OF men dead, removed. or disabled. When
the organization OF the courts was changed, and
the selection OF the Jurors was given to board
appointed by the court the clerk OF the court was
not clear In the court mind that the Legislature
Intended to transfer to the clerk OF the court the
power that had been invested in the board of
officials that formerly was entrusted with the
duty OF selecting jury.
THE KELLOGG PLEAS REVIEWED.
Judge Wylie then took up the various pleas,
speedily disposing of the first (alleging that no
presentment was made to the cour), which
plea he did not consider we'll founded In reply to
the second (alleging that Mr. Ker without proper
room), Judge Wylie said the court hal given per-
mission to Mr. Ker to go before the grand jury as
Mir. Wilson having stated that the record showed
no such authority, Judge Wyie said II that Was
so the record should be corrected, and he would
assume that 1t was corrected.
The third plea was substantially the same as
the second and was denied The fourth plea al,
legged that the grand jurors were not served with
OF service began. Ju ,ge Wylie Said this was not
correct, as the returns showed that they were
served it would be immaterial if the jury was
properly drawn and the right man appeared In re-
sponse to the notice: II there was any neglect in
serving the notice it did not affect the Qualf1ca-
Ton OF the jury. The next plea Was that the mar
shall had not returned to the court before the
opening OF the March term copies of the jurors
n. a hpv
were served, With copies of the notices serve l.
II was fact that the marshal had not returned
piied with the law In retu nng a cOmDendiouS
statement, showing on one piece OF paper how and
this case that an error on The part OF the marshal
In the manner OF making hisreturn to court could
not Offset the qualifications Of the jurors. AS to
the plea that after the completion OF the grand
jury panel aud the appointment of the foreman,
HARRISON Fl. Dodge Was excused from service on
Ine ground that ne was government officer,
Judge Wyl1e said that the fact that Mr.. Dodge
was a government officer was not a disqualIca-
ton; it simply entitled him to the privilege of ex
exempt, the court thought there was no error in
that
THE GRAND JURY PROPERLY ORGANIZED.
Judge Wylte then came to the plea attacking
the organization OF the grand Jury, because the
places OF men excused were filled by drawing
names from the box. The question was whether
when men were excused from service by the court
the court had authority to provide for the vacan-
denied that at times there had been different
opinions on that subject, under the statutes. He
read section s62, r. s.. authorizing the court,
others be summoned In their places For every
practical purpose, the jurors in question did not
astend: a Ihey were excused from attendance.
upon the court. He thought the vacancy thus
created could be treated as a non-attend tnce and
ordered the marshal to supply the vacancies by
drawing from the box. Instead OF going out upon
the public thoroughfares the marshal went to the
box which contained the names OF men possessing
legal qualifications The question was whether it
was fatal to the panel that the names were drawn
thorities, and said that when grand Jurors s. were
excused the presumption was that there W IS good
ground for their being excused. and the vacancies
were 10 0e nlled as II they had not been In atten
dance. When the clerk was ordered to draw the
names from the box he was directed only to
law, and there was no violation OF the law. The
next plea raised the question as to how a vacancy
was to be f1l,ed caused by the excusiNg OF juror
In the plea were that Juror Dodge was thus ex-
cused, and the vacancy was filled by the mar.
shara l: summonl1g sunni talesman. In this case, the
court, after reading the section OF the Revised
Statutes relating to such cases. said the law was
exactly followed: AS to the plea which alleged in
sons for excusing them did not appear OF record,
Judge Wylie said the court had Jurisdiction of this
,urors ang to fSss
the fact that these reasons were not
spread on the record was OF no consequence.
referring TO the general act Of June 30th 1879.
latlng to the selection OF jurors by q commission
on which both political parties were represented,
the court said that that law was clearly inapprO-
pirate TO the District As to the number neces-
sary to compose grand jury, the court said that
under the common law there was no settled num-
Der, the sheriff being empowered to summon any
nninher from IL to 23 In this District the law
provided that % persons were necessary to con-
stltute grand jury. When the grand jury was
obtained, however, there was another statute
which came into force m aklng Is a quorum to do
business, and OF the 16 12 were enough to ind an
Indictment 1t might be true that the indie tment
might be faulty under the Revised Statutes for the
District OF Columbia, and yet valid under the gen.
eral statutes.uDdar provisions broad enough to
cover the whole United States.
THE KELLOGG PLEAS OvERRULED.
He oVerruled, therefore, the pleas in the Kellogg
THE PLEA IN THE COOMEs CASE OvERRULED.
Judge Wyle referred to the case OF ex-Detective
John W. Coomes, saying that q plea In abatement
was made because, twas alleged, one of the grand
jurors was q constable The question was whether
the office OF constable was such as to dfsQualify
tts holder from service ON the grand jury. He
quoted the section exempting executive officers
ana Salaried employees Of the gOgernment and Ger.
tain others from service on jufie& The court said
constable had nothing to do win the executive
functions Of the government, and was neither dis
qualified nor exempt. He denied the plea.
THE MILLER CASE
Referring to the motion to quash in the case OF