Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1896-03-19

Suurl tnen ublu luHI no certlOrArl was
needed, that the indictment was made
in oyer and terminer
10 regard to the present case, Chief
Justice Lore declared that there was
no default by the attorney general or
she deputy attorney general. He was
turprised that there was no clause in
the precept for calling grand jurors
for the oyer and terminer. Mr.. Cooper
informed the Court that it had been the
practice to move indictments from
general sessions into over and terminer.
II, III. Ward made the closing argu-
ment in support of the motion to arrest
judgment. Judge Grubb stated that
the practice of the court had been that
precept was not complete until it
had been passed from tho last judge.
| The precept is sent from one Judge to
another. Judge Grubb recalled that
the Chief Justice had spoken to him
about summoning grand jury for oyer
and terminer.
Mr.. Ward held that the practice of
the court could not be upheld against
statute. He took the ground that
the grand jury was not properly sum
| moned to oyer and terminer and that
every act after the finding Of the in
dictment was not proper. He moved
| therefore that the court arrest judg-
ment. He admitted that the practice
had been to pass cases from general
sessions to court of oyer and terminer
without certiorari.
The defence in the Farnhurst case
made a move Monday that postponed
the conclusion of the case. This step fol-
lowed the refusal Of the motion to arrest
| judgment, which fell on account of an
evenly divided court. The point was
| that the State should next make a mo-
tion for judgment and that the Court
should decide whether or not it would
grant that motion; that should it not
grant the motion ii should fall Pend
ing consultation with the attorney
general on that matter, Deputy Attor-
ney General Cooper secured a continu-
ance until yesterday morning.
In spite of the bad weather there was
fair sprinkling of persons at the
Court House to hear the last words in
the Farnhurst case. On the bench
were Chief Justice Lore and his three
associates in oyer and terimner court,
judges Grubb, Marvil and Cullen The
prisoners, Daniel Brown and John j.
Swan, were brought into court and
after a short wait, the Court pro-
ceeded. The State was represented by
Deputy Attorney General Cooper, and
the prisoners counsel. Andrew @. Gray
and Herbrt II. Ward. were also present.
The question before the court was
whether or not it should grant the mo-
tion of defence for an arrest OF judg-
ment. Chief Justice Lore, who with
Judge Cullen, was in favor of granting
the motion, was the first to express
himself. He stated the ground OF the
motion to be that the bill was not
found by grand jury in the court of
oyer and terminer and was not duly
certified to the court of oyer and ter
miner. The question was whether
there was grand jury really consti
tuted that could find an indictment.
The Chief Justice took the ground
that the only foundation of term of
oyer and terminer is q precept issued
by order of the Court. He discussed the
precept issued for the present term Of
court, and declared that in the body
of it there was no order, no command d
to summon to tho court of oyer and
terminer grand jury. In regard to
the marginal note on the precept TO
summon grand jury he said that it
was simply memorandum of verbal
order given by him. That being the
case, there being no order Of the Court
for grand jury there was no grand
Jury for court of oyer and terminer.
The indictment was found in general
sessions and was not certified to oyer
and terminer. 1t was not legally in
oyer and terminer; so that the trial was
non coram iudice. In tho Judgment of
Judge Cullen and himself the trial
was utterly without warrant in law.
Speaking further, the Chief Justice
said that no fault was attached to the
attorney general, TO the sheriff, or TO
anyone of his three hrethren. 'The
fault is absolutely and exclusively my
own" he said. He declared that he
would not shirk any Of the RESPONSE
bility. They should have ordered it in
the body of the precept. The verbal
order gave no authority to the sheriff.
1t grew out of the Chief Justices de
sire to save the trouble of certifying
tho case. The sheriff's act in sum
moning the grand jurors to the court
Of oyer and terminer was nullity.
There was no grand Jury in over and
terminer and therefore no bill was
found in oyer and terminer- 1t was
not certified to oyer and terminer, and
therefore there was no trial before oyer
and terminer. The Chief Justice do
clared that he would never be willing
that Judgment should pass in such a
case. For himself and Judge Cullen
he said; eve think that the motion to
arrest judgment ought to be granted. -
Before reading the opinion against
the motion to arrest judgment. Judge
Grubb announced for Judge Marvil and
himself that they were on the prevail
ing side and that the motion would
fail. In the course of his reading,
Judge Grubb recited the circumstances
of the case before him, the indictment,
the conviction of manslaughter, the
motion for new trial and its>failure.
the present motion for an arrest oi
judgment, and its grounds. In regard
to the latter he stated as fact that
the grand jury was not of general ses.
sions hut of oyer and terminer He
spoke of the power of oyer and ter
miner, whose decision is final and moi
subject to appeal or writ of error, and
reviewed the practice of summoning
the grand jury. There was no enact
ment requiring the court to follow any
particular practice. Without any pre-
cept of the Court, the grand jury
, would be present in general sessions.
AS the general practice throughout the
State has been to have oyer and ter
miner at the same time as general ses
, sions, the Constitutional right of the
accused to have an impartial trial vii
not be affected. Statute and not thu
precGpt makes the grand jury.
, After reviewing the ground for thu
motion, Judge Grubb said that IL wa'
not necessary to consider whether thu
a nrarent WAS illegal or NOT in whole O