Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1897-11-13

ny MdttSl AOI SUNS ~ ASo AAASAAe1 1870
| precluding inquiry into it, he should
| make the allegation in the extreme
degree certain; that is, in every par
ticular. For it is just that he who
would ward off investigation by a
technicality should be required him
self to stand very technically erect s
I'D. see. 324).
Bishop further says, ed. sec, 327:
"In pleas in abatement it is neces-
sary to employ the extreme certainty, .
and quotes with approval Gould on
pleadings, sec, 81, where that author
says: Certainty to certain intent
in every particular requires the utmost
fullness and particularly of state
ment, as well as the highest attainable
accuracy and precision, leaving on the
one hand nothing to-be supplied by
! intendment or construction, and on the
other no supposable special answer I'M
obviated."
The principles laid down in the text
books are fully sustained in the cases
decided.
People VS.. Findley. Mich, 234; Bel
den VS.. Laing, s Mich, SOB; Hayman
VS.. Covell, 36 Mich, 159; People VS..
Lander, 80 Mich, 109-114; Burnham VS..
Howard, 81 Me-, 572; Perry VS.. railroad,
II Me-, $50; Severy VS.. Nye, So Me-,
Psi; State VS.. Eeselton, 81 Me-, 500;
I Posky VS.. West, Is Miss, III; Ellis
VS.. Ellis, 4 R. l., lis; State VS.. Dug
gan, Is r. l., Ais; Fowler VS.. Arnold,
% Ills, 2S4; Nixon VS.. ms. Co., At
Ills, 444; Feasler VS.. Schiever. 68
! Ills, 1922; Haywood VS.. Chestney, 10
Wend., 495; State VS.. Emery So VT,
"a; State VS.. Ward, go VT, 142; Mum
dunn VS.. Joy, So N. H., 141-312; Lyons
VS.. Rafferty,, 80 Mimi, 527; State VS..
Ward 67 Mich, $40; State VS.. Ward,
63 Mich, 1885, State VS.. Reeves, 10
| So. r., 903-5; State VS.. Lawrence, Sc
Va, 573; Horton VS.. Towns, Leigh,
57-8. Here Judge Tucker says, the
utmost eXactness in these pleas
of abatement is necessary. Har~
vey VS.. Insurance Co., 81 w.
Va, $50; Woodell VS.. w. Va. Imp Co.,
SO w. Va, 80; Quarter VS.. ms. Co.,
| 10 w. Va, 521; State VS.. Baker, 33 W.
Va, 324.
Counsel for defendants, while conced-
ing that the cid common law rules gov
erning pleading in abatement are ex-
| tremely critical and technical, claim
nevertheless that such extreme rules
| should not be applied i crimial cases,
and cite in support the claim State VS..
Fleming Sc NICE, 142. In this case it is
said: 1.-THE strictest technical accuracy,
such as has sometimes been acquired in
| pleading dilatory pleas in civil suits,
should not be exacted in criminal cases.
| If the plea states valid ground of de-
| Tense in language too clear to misunder-
stood, and is free from duplicity Moth
ing more should be required
| From the language used it will be
seen that according to this case very
great precision and accuracy are requir-
! ed. Language too clear TO be misun-
| derstood" is statement exacting the
very highest precision of expression and
! may well put this case in the class of
| cases already cited, showing the high
degree Of technical accuracy required in
pleas of abatement.
That the rules Of pleading in abate-
ment do apply in criminal cases and
| have been applied in such cases, refer
| ence is made TO the cases cited herein
| in support of the text. Twelve of the
| thirty cases cited were criminal cases,
| in which the strict letter of pleading in
abatement was recognized and APPROX
! cd.
For insance, in People VS.. Lander, 81
Mich, p. 114, it is said:
when dilatory pleas are resorted to,
We must apply to them these long estab-
lished conons OF construction 10 test
their suffic.enC-- Tor the purpose of atat-
ing the prosecution which tie expert
ence Of courus through a long series Of
years has found neeessry 10 protect
ia;lors from unnecessary de,ay and ex-
pense. These .uics are necessarily
strict and technical and party inter
posing such diIatory plea invites the
most rigid scrutiny Of Us suficiency TN
de- the established rules Of pleading.
It is laid down in works on pleading
and supported by abundance of author
ity that a plea in abatement must be
| certain to every intent, and the greatest
| accuracy and precision are required N
framing it..
The Supreme Court in State VS..
Emery. SO VT, 81, and in State VS.. Ward,
! 60 VT. 142, say the common law rules OF
nIeading in abatement have not been re-
| Taxed in Vermont.
In State VS.. Duggan, Is r. L., Ais, the
| Supreme Court says The certainty re-
| quired of pleas in abatement is extreme.
| In the language of the old books they
| must be certain to a certain intent in
every particular. They must leave on
| the one hand nothing to be supplied by
| intentment or construction, and on the
other no supposable special answer I'M
| Obviated."
| Continuing, the same judge further
says: pleas in abatement for mere de-
| fects in the constitution OF the grand
| jury are generally interposed for delay
| and are not favored. The defendant, if
! innocent, can defend himself as easily
under this indictment as under another
! for the same offenSe."
| In State vs. Baker, SO w. Va, 1924
! the Supreme Court of our own state cri-
tically analyzed the plea filed in that
case adm ended its criticisms by saying:
"A plea in abatement should be certain;
| not inferential."
Modern legislation has been in line
too, with the holdings of the courts.
| In many states now the right to file
| pleas in abatement settling up irregu-
larities the organization of the grand
juries is taken away by positive statute
/! Miss 20, So. S42, S. c., Kan, Ind. and
| ~ Y, outside of our own state, think
l can say the tendency of the courts in
criminal cases is to exact the most com
| plete compliance with the rigid rules OF
abatement pleading, while legislation
| oOeS evon further and tends to the sun.