The Roanoke times. [volume] (Roanoke, Va.) 1890-1895, 1894-04-19

The case of tho commonwealth VS..
Thomas S. Kennerly, charged with the
seduction OF Miss Hattie p. Smith, was
again called In the Hastings Court yes
terday morning. The courtroom, as on
the previous day, was we'll filled with
expectant listeners, and the counsel
were In their places promptly at 10
o'clock.
Judge N. Il. Hairston, Of counsel for
Mr.. Kennerly, moved that the indict-
ment be quashed, on the ground that
the grand jury making the indictment
had not been summoned or selected
according to law; that it WAS a special
grand jury; that at the January term Of
the court. when the indictment was
made, there were two grand juries. one
regular grand jury, which had been
discharged, and the other, the one by
which the accused was indicted, a spe-
clal grand jury, the names of which had
not been selected according to the re-
quirements OF the law, which provides
that the members Of q grand jury shall
be selected from list of forty-eight
names, to be prepared by the court at
the August term of each year. He then
presented special plea in the name Of
the defendant.
| Judge Woods overruled this motion
| and stated that he did not think tho
statute capable of the construction
| placed upon it by the counsel for tho
| defense.
Judge Heirston then moved to ouash
she Indictment upon the grounds that
tho record of the January term OF the
HustiDgs Court, at which tho indict-
ment had.been made, was not signed by
the judge, as is required by law; that
| Judge Woods did not sign the record un-
VI April II, aud that no order OF ad-
| journment had been entered and that
the law stated that tho record OF the
court for each day should be signed by
the presiding judge, and that, as this
| record had not boon signed, there was
no indictment against Thomas S. Ken.
nerly and that the paper signed by the
jury was not an Indictment
wealth's Attorney Hardaway
In reply stated that no admitted
tn this omission was o judicial
@ that the Indictment was nullity,
Blu The claimed that it was clerical or
mechanical error, and not judicial
error. He furthermore claimed that as
the order summoning the grand Jury
had been signed, the fact Of omission
OF the court to sign the order Of ad iourn-
ment and the record of the whole term
did not effect the Indictment, and
furthermore that a record OF the court
could not be attacked by either oral
testimony or affidavit and that the
record as 1T now exists, signed, stood
for itself.
The court ended the discussion by
saying that the way the discussion was
going the question would occupy all
day, and he would save time by or
dering special grand jury and settle
the whole matter with another indict-
ment.
The new special grand jury who won't
into the case anew at $50 o'clock was
composed of j. f. Wingfeld, foreman;
b. A. Jones, w. A. Caldwell, w. e.
Andrews, M. 81. Earman and G. b.
| Thomas.
All the witnesses for the common
wealth who could be found were sum-
moned and large number Of them wore
examined by the jury. at G o'clock the
examination OF witnesses had not been
concluded and court adjourned until 10
o'clock this morning.
1t is thought that the Indictment
against Mr.. Kennerly will be made by
noon and that the case will be called for
the third time during this term in the
afternoon.
1t has been stated that all the wit
nesses for tho defendant who do not
reside in Roanoke left the city to-day,
there being no legal way to compel them
to remain after the case had been given
to new grand jury. In view of this
fact it is doubtful II the case will be
tried during the April term.