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

] suits of which | have given you, my
/ attention was directed to certain pro-
visions in Chap. 80 and Chap. 1853 OF
| the Code, apparently applicable here.
| See. As, Chap. 30. contains the pro-
vision: "And no indictment or pre-
| sentiment for q violation of the reve-
| nue. laws shall be dismissed without
/ trial" And Sec. 81, Chap, 15S. is:
| mo exception shall be allowed for
/ any defect or want of form in any pre-
/ sentiment or Indictment founded on any
provision Of Chaps. 80 or ISL, but the
/ Court shall give Judgment thereon ac-
4 cording to the very right of the case
| The portion Of Sec. As. Chap 80 cited,
/ taken in connection with the fact that
\ Chap 50 is to be construed as re-
medal probably goes no farther than
/ to indicate that all possible construc-
/ lions and intendments will be given by
/ the courts to carry out its provisions
\ rather than to extend and encourage
| favorable consideration of technical
4 matters of objection to proceedings for
! its violation.
/ Sec. q of Chap. 15S does, however,
seem to me to be intended to deprive
the defendants in indictments for vio-
lations of Chap. 80 of all dilatory and
1 technical matters of defense.
! The phrase, mo exception shall be
! allowed for any defect in any indict-
ment," is very broad. 1t is compre-
/ hensive enough to include all matters
! the defendants seek to set up to these
indictments by their pleas in abate-
ment. And if so, the pleas should be
! rejected, no matter how perfect they
/ may be.
| This is a provision of the old Eng
! fish statutes relating to gaming, and
4 was incorporated by Virginia into her
! statutes. 1t has not only been re-
tanned but extended in Virginia so as
to include violations of the revenue
! laws; and in this shape we find it in
our statutes. The chapters of the Code
relating to revenue is 80 and that re-
lating to gaming is ISL of the Code,
and it is to these that Sec. q of Chap.
| 1853 refers.
Practical application of this Sec. 81
has been made in Virginia, so far as
/ can learn, only to cases of violation
| Of the law against gaming. In this
| State it has been referred to in a num-
Der OF cases of violG ton Of the revenue
laws that have gone to the supreme
! ton or discussion, even of the extent
! Of its applicability, further than it can
not save from demurrer an indictment
which may be literally true and yet the
accused guilty Of no offense State VS..
Bruce, 26 w. Va. 157.
In State VS.. Bruce, Judge Synder says
of this Sec. q that it was taken from
a similar statute in Virginia, and that:
cit was there construed to exclude de-
fences which do not put in issue the
truth Of the charges against the defend
I ant" Citing Atkinson's case, Va. 513
If the scope of this section is to ex-
clude defenses that do not put in issue
the truth of the charge in the indict-
ment it then applies to and excludes
| the pleas in abatement filed in these
/ cases. There is no contention that
these pleas put in issue any charge in
the indictments. In Atkinson's case
judge Brockenbrough says after giving
a resume of the statute
eve are of the opinion that from the
whole scope of these two sections tsec.
! 20 and 81, oh. 1881 it was the appar-
ent intention of the legislature TO eX-
! clude every defense in a gaming case
which does not put in issue the truth
Of the charge"
This decision was made anent plea
Of misnomer which on the above
ground was ruled bad.
/ (Foegy's case, 6 Leigh 63S. On de-
murrer oVerruled, leave must be got 10
Withdraw it or judgement follows)
The next and last case so far as
can find in which this matter came up
is Com. VS.. Lawrence, So Va. 573. This
was a gambling or gaming case, too.
| In this case the court was asked first
tn cuash the Indictment, because the
record did not set forth the oath and
aDpointment Of the foreman; and, sec
ond. to permit plea in abatement that
the indictment was not found upon the
evidence Of two Of the grand jurors,
nor upon the testimony OF witnesses
sworn and sent to the grand jury
! whose names must be written at the
foot.
On this last point the court held the
record was perfect, having the names
Of the witnesses written at It's foot, but
said Il It had been otherwise in this
case. under this prosecution, the plea
set M no valid defense, being matter
Of form. the statute providing, as does
our statute, that mo exception shall
be allowed IOF any te4eCC VI H6Ah VI
form in any indictment" etc.
The court says there was no error
in oyerruling the motion to quash and
The plea in abatement because Of the
existence Of this statute. If Irregular
itias exist in the constitution Of the
grand jury, would not that render any
Indictment found by it technically de-
fective? Is it not reasonable and fair
to construe the statute when 1t says
amy defect in the Indictment as mean
ing and including defects arising from
irragularly constituted grand juries?
The statute is broad and 10 be literally
and remediaIIy construed, and so far as
its construction has been attempted
this view seems to be decidedly favor
ed.
/ think the demurrer pust be sustain
cd to all these pleas, first, because not
technically we'll pleaded. and, second, II
technically good the statute excludes
them.
The pleas in abatement in this case
with the matters they set up and the
number thereof are very analogous TO
the pleas in State vs.. Ambrose, 3 Fed.
2S3. / did not get hold of this case
till my own opinion was jotted down.
1t is by Justice Swayne, of the Supreme