The Jersey City news. (Jersey City [N.J.]) 1889-1906, 1889-03-13
The Indicted Freeholder
May Have to Stand
Trial for NAL
feaSance Yet.
THE SUPREME COURT MAY SAVE HIM.
Judge Lippincott Holds the Grand
Jury to Have Been Legally
Selected.

Judge Lippincott this morning de-
cided the points raised by Allan l..
McDermott in the case of Freebooter
Hennessey, indicted for forgery, that
the Grand Jury which indicted Hen
nessey was not drawn according to law.
The Judge holds that the Grand
Jury was properly drawn, and that
the Indictment must stand.
The principal points of Judge Lip
pincott's opinion are given as follows;
"There is a tendency in more modern
decisions to disregard those objections to
the irregularities and omissions in the
formation of Grand Juries which are not
fundamental and which do not prejudice
the defendant on the trial of the merits OF
the case. The Sheriff does not select the
Grand Jdry, and therefore no return or
caption of his could officially identify
them, or aid in their Identification. That
is matter for the court, and in this case
the record is complete upon that matter.
1.-THE only omission charged is that the
Sheriff has not certified the manner In
which he summoned the Grand Jurors or
duty was to summon them. The duty and
right of selection, with all that apper-
tanned to it, was taken from him in 1883.
He had no power to make a record OF the
selection and drawing that was done be-
fore his duties commenced.
His authority to summon had already
been made q matter of record by the clerk
of the court entering upon the minutes OF
the court the fact that the twenty-four
Grand Jurors had appeared and were
sworn in.
ssHe could not be required to certify
that he had summoned them as persons
qualified as Grand Jurors The qualifica.
tion, so far as that was a matter OF
record, had been entrusted to and per-
formed by another tribunal, and their
acts had become of record. He could not
be called upon in his return to set forth
his authority to summon them, for that
had already become a matter of record.
Ills only duty was to cause their appear
ance, and if there existed any duty as to a
return, it was merely to certify that he
had summoned them. The qualifications
of the Grand Jury, it's personnel, and his
authority to summon them, was already
matter of record, and by that record,
irrevocably fixed.
'.The defendant here has notsnor can he
be prejudiced in his right to maintain his
defence and have fair trial upon the
merits.
it now stands in relation to the Grand
Jury, it is only such an omission or lack
of form as can at any time be amended or
supplied by the Sheriff and made part of
the record with the fact If it be SO, that he
did summon the Grand Jury to attend the
present term of the courts of the county.
But this case is decided independently of
such amendment or connection.
ssThe conclusion reached by the Court is
that the present Grand Jury is a legal
Grand Jury and legally empannelled, and
that the presentment made against the
defendant is legal presentment.
ssThe motion to quash is therefore denied.
The defendant must plead to the indict-
ment."
When the Court had rendered the
decision on the motion, Mr.. McDer-
mott asked that his client be not COM
PEELED to plead, for he proposed to GER
tiorari the case to the Supreme Court
Immediately. The Court granted the
request. A decision will not be reached
by the Supreme Court before Novem-
ber next.
Mr.. McDerlnott will take the matter
to the Supreme Court on certiorari.