National Republican., 1883-07-19
PLEAS THAT DIDN'T PLEASE.
Judge Wylie 0verrules Those Filed in the
Kellogg Star Route Case
He Holds that the Grand Jury was Prop
erIy and Legally Constituted,
The German-American Bank and the Ex-Detoctive
Gases Affected by the Opinion.
A Motion 10 Qunsh the Kellogg Indict-
ment to BE Argued To-day.

Wylie announced his decision i'll the case OF
the pleas filed by ex-senator kellogg for re-
ceiving money while Il senator for services in
relation to Il contract with the United States.
and of c. L. Prentiss, late cashier of the Cor
man American bank, for cmbczzlement. The
plcns wore based on the manner of filling
vacancies on the grand jury. There were
urcsent Mr. Kcr and Mr.. Merrick, counsel for
the government, Nathaniel Wilson, counsel
for Mr.. Kellogg, aud Gen. Mussey, counsel for
MIR. Prcntiss. In the case of Mr.. Kellogg
Judge Wylie said eleven pleas had been fled
which had been met on the part of the goY-
crumant by demurrer.
As the facts set out in the plea arc deter
mnablc by the record itself it was not ncccs-
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 SUI
icgnt in fact are questions, therefore. deter
miuablc by the court. 1t was practically of
10 consequence whether the questions 70 be
determined are questions of law or of fact or
in what shape the questions may be raised.
Before going more particularly into the con-
sidprNtion of the questions raised, he referred
tO q comparison between the act of June l6,
1SS2, and the act as it appears in 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 per-
lnittinE the clerk to throw ont names of jurors
drawn who were disabled " from serving.
The word disabled might comprehend
disqualified, but the court would hardly nc"
Ccpt such an assumption. 1T would limit the
meaning of the word to physical disquali iicd-
tions. When the act of 1862 was passed there
was circuit court and an independent Grim
inal court i'll the district. He commented on
the method then followed Of filling the jury
hoN, the register of the city of Washington,
and the clerk of the levy court who selected
the names being empowered very properlyt to
throw out tho names of men dead, rcmovod,
or disabled. When the organization Of the
courts was changed, and the selection of the
jurors was given to n board appointed ~ tho
court the clerk of the court was given the
power TO throw of the names. 1t was not
clear in the courts 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
Judge Wyle then reviewed the pleas, and
ovcrrulcd the first, alleging that no present
mcnt had been made to the court. The
second, alleging that persons without proper
Authority had gone before the jury, was also
overruled, us Mr.. Kerr had been granted
permission as special counsel, and the record
should be corrected.
The third plea was substantially the same
as the second and was denied. The fourth
plea alleged that the grand jurors were not
served with notice of their selection five
DAYS before their term Of service began.
Judge Wylie said this was not correct, as the
returns showed that they We're served with
notice; but if they had not been SO served
it would he iminatcral if the jury was prop
c.ly drawn and the right men appeared in
response to the notice. If there was any
neglect in serving the notice it did not
alvc. the qualification of the jury.
The next plea was that the mar
sHal had not returned to the court before
the opening Of the March term copies of the
jurors dlawn with statcmcnt when and
where they We're served with copies OF the
notices served. 1t was II fact that the mar
sNal had npt returned copies OF each notice,
but had substantially complied with the law
in returning n compondiOus statement, show
ing on ono piece Of paper how and where each
Juror was served. The co urt said in tins case
that an error on the part of the marshal in
the manner of making his return to court
could not offset the qualifications of tn
Jurors. As to the plea that after the compile
tion Of the grand jury panel and the appoint
mcnt of the foreman, Harrison H. Dodge was
excused from service on the ground that he
was IA government officer. Judge Wylie said
that the fact that Mr.. Dodge was II govern
mcnt officer was uot disqualification it
simply entitled him to the privilege of eX-
emption. Having been excused tccause he
was exempt, the court thought there was no
error in that
The plea attacking the organization of the
grand jury was the next taken up. The
question was whether men We're excused
from service by the court. lie said that the
court had authority to provide for the vacan-
cies by drafts from the box. 1t was not to be
denied that at times there had been different
opiniOns on that subject, under the statutes.
lie read section S62 revised statutes, au-
thorizinS the court, when Jurors drawn did
not attend to order that others be summoned
in their places. For every practical purpose,
the Jurors in question did not attend. They
were excused from attendance. They were
OF n n lpunl in attendance the
court. lie thought the vacancy thus created
could bctrcatcd AS u non-attcndanco and iillcd
as n non-attendancc. The court, in this case,
ordered the marshal to supply the vacancies by
drawing from the box. Instead of going out
npon the public thorOughlNrcs the marshal
went to the box which contained the names
of men possessing legal qualifications. The
question was whether il was fatal TO the panel
that the names were drawn from the box.
lho Judge quoted a number of authorities,
and said that when grand Jurors were eN-
cused the presumption was that there was
good ground for their being excused, and tho
vacancies were to be filled as if they had not
been in attendance. When the clerk was or
dcred to draw the names from the box he was
directed only to use one of the methods pro-
yidcd by the law, and there was no violation
of tho law, The next plea raised the ques
tiom ms to how vacancy was to be filled
caused by the eXcusng Of juror after the
Jury was organized. The facts alleged in the
cuscd, and the vacancy was filled by the mar.
shals summOning a talcsman, In this
case, tho court, after reading the Sec
tion of the revised statutes rent
ing TO such cases. said the law was
exactly followed. As TO the plea which al
legged in the cases of certain jurors excused
that tho reasons for excusing them did not
appear of record, Judge Wylle said the cour
had jurisdiction of this whole matter, beinl
empowered 10 excuse jurors for certain roa
sons. He held that the fact that these reason
were not spread on the record was Of no con
sequence Referring TO the general act o
juno 80, 1879, relating TO the selection of iu
Tors by u commission on which both politica
parties were rcpresented the court said tha
that law was clearly inappropriate to the dis
trict. As to the number necessary TO com
pose u grand jury, the court said that unde
the common law there wasno settled number
the sheriff being empowered to summon an,
number from thirteen to twenty-thrce. Ii
this district the law provided that twenty
three persons were necessary to constitute
Grand Jury. When the grand jury was OBJ
tanned, however, there was another statut
which came into force making sixteen u quo
Ium to DO business, and of the sixteen twelv
were enough TO find an indictment. 1t nigh
L., iyuC tbot thn Indictment mi bn fnult,