Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1897-10-15
k1I1,IxsIIi3

even in the face of such staty.e Where
there was an important irregularity the
courts held that the prisoner is entitled
to grand jury Without STAIN
Mr.. Hoyard cited the Baltimore case,
which greatly resembles the one here,
AND submitted that the decision ought
70 have weight.
| What have We here?" asked Mr..
Howard. "The first step required is to
| select list, and the persons to select it
| are designated by the statute; they
| never did it. 1t seems a waste of time
| to go further. This cannot be treated
| as slight irregularity. The next step:
not TO have more than one hundred and
| fifty names. There were two hundred
and forty-eight. Next, the County
Court is to see as to the placing of the
names in the custody of the Circuit
| Clerk. Then the Circuit Clerk is to
| keep the box in his custody without be-
| ing opened except according to law.
This was violated. The County Clerk
is required to be summoned, but the
Circuit Clerk did the drawing, contrary
| to law. Then sixteen men were sum-
| was violation of the statute proyis-
ions. Can it be possible all these are
mere Irregularities? There is a recent
consideration of these questions before
the Supreme Court in the case of the
State VS.. Eastman Two of the judges
were in line with the decision | have
cited, Judges Dent and English They
| take square ground against any appli-
n nf hn Infa 1y1
Mr.. Howard then summarized the
| departures from law as follows
"First-It is required by the stat
| utes that the list be selected. 1t is not
done by an individual. 1t is the work
of a corporate body, in fact. of the
Court. Not one of the sixteen men
were drawn by the Court. Not one of
| the sixteen men were drawn by the
order of the Court or by the Clerk of
! the County Court.
'Second-The list from which the
recent grand jury was taken contained
24S names, whereas the law says there
shall be but 150
THE third step is, the County Court,
as a court, is required to write each
| name upon a separate slip of paper
and folded SO the name cannot be seen,
and then handed to the clerk. In
this they failed.
! "Fourth-The Clerk of the Circuit
Court shall keep the box safely, and it
shall not be opened except by order
of the Court. That provision is de-
parted from.
"The next step is, the Clerk of the
County Court shall be summoned to
draw the names. He did appear, and
| this seems to have been the only in
stance in which the law was complied
with; but he did not do the drawing.
Another departure.
THE final proceeding was the sum-
| mining of sixteen men, but some of
| them were excused.
Thus we see that up to the time
| these sixteen men sat there in the jury
| box there had been violations in every
step, except in the summoning of the
Clerk of the County Court, and he did
not do what the law requires
Here Mr.. Smith called the attention
of Mr.. Howard to the Act of 1882,
guarding against the old common law
custom Of having the Sheriff pick up
a grand jury, and Mr.. Howard said
THE Legislature had full concep-
ton of the situation, or else the law
would not have been so positive"
Then, noting the case Of State ".
Eastman, he said
THE faults there were not so seri-
oue as those we have here Two of
| the judges of the Supreme Court of
this State hold that even slight de-
partures from the law are defective as
to the organization of the grand jury,
and I submit, in conclusion, that the
thing fatal in this case is that the
proper list. We submit that these
pleas ought to be sustained, that the
States demurrer should be overruled,
| and that the indictments should be
Quashed"
In conclusion, Mr.. Howard said the
one fatal defect in the whole proceed
! ing is the fact that there was no grand
| jury list prepared by the County Court
according to law, and therefore there
could be no legally constituted grand
jury. In addition, there had been VIC
! lations Of the statute all along the
| line. The pleas in abatement, he said,
ought to be sustained.
| Mr.. Howard offered the same pleas
in the cases of the other saloonists as
those already presented in the case OF
State v. John Arthur
! Mr.. Meyer, for the State, who was
assisted by Messrs. Nesbitt and Som
merville. declined to answer the ar
gument until the pleas had been sub
mitted in writing in every indictment,
and this demand was allowed by the
Court, the defense being given until
tomorrow morning, at which time the
pleas will be ready.