The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1897-10-21

Inc uDdletHeHI CdSeS' WINCH HdNS W.
cupied the attention Of the Ohio county
criminal court for some time, We're again
the attraction yesterday morning and
afternoon. Contrary to expectations
there was not the large turnout Of spec
tators to hear the closing arguments in
the case,
AT the morning session, Mr., Howard
opened for the saloon men, slxty-six in
number, who attack the legality of the
late grand jury. He attacked the legall-
" OF the grand jury, first, because of the
excuse of one of the sixteen by an Off
Ger of the court not the Judge, This, he
claimed, was O fatal defect. Then the
pleas were taken up in detail. He said
that the states claim that the first plea
is bad for its dupl!city 10 erroneous.
There Is but one averment, one matter
Of defense in the opening plea. He
claimed his use OF the term list OF grand
Jurors" IN describing the list Of eiigtbies
Is correct. Proceeding, tho speaker took
up the other pleas, dwelling particularly
on those relating to the parts taken in the
utuWAib Va hAAG bAshAAN JbA J W - ~ r@'ANA
fat and Charles II. HennlnG, which, he
claimed, made the grand jury illegal and
defective, The other pleas were dis
cussed briefly, and in conclusion Mr..
Howard said:
after all, the one big question In this
proceeding is. and It will rise above all
efforts of counsel to hide 1t, or to obscure
its magnitude; was Il a legal Jury; can
II find legal indictment; and II they
cannot these defendants cannot be tried.
Let the officers Of the court learn to fol-
low more strictly the form OF the law.
Let them begin new proceedings, and
chen we Will meet the issues involved"
GENERAL CALDWELL SPEAKS.
At the conclusion Of Mr.. Towards adj
dress, eN-Attorney General Alfred Cald-
WELL who rs associated with the state,
began the closing argument in the case.
Like Mr.. Meyer, he went over the ground
regarding the requirements in plea in
abatement, and showed the plea must be
certain as to every intent, positive and
direct, and not conclusions Of law on
mere allegations. They must be parttc-
ular IN their averments, and pleading
bad In part Is bad altogether The
speaker cited from the excellent authors
", Bishop on Criminal Law and Pro-
ceedure" This work has been extolled
by the opposing counsel, but the speaker
showed they had not followed the rules
laid down In that work. A West Vir-
ginIa authority was cited, showing that
in the affidavit to the plea 1t must be
pointed out on what Is alleged on mere
information and belief and what Is al
legged on purely personal knowledge.
At 1890 o'clock court adjourned until
~ -, ,,,har Canar>1l Caldwell resumed
his argument.
In the afternoon, before proceeding
into further discussion, General Cald-
well called attention to the board asser-
tons made by opposing counsel last
Friday. Well defined doctrines were as
sailed, and peculiar deductions made by
counsel. II he rad meant that mere
informal plea In abatement WAS Justified
by the authority, Minor, who was quoted
Il was entirely unwarranted. The plea
in abatement is not equivalent to plea
of not guilty; hasn't anything to do with
the guilt OF these men. General Cald-
well submitted the work of Minor In sup
port of his contentious. Other authot-
des were also submitted.
There Is an entire lack of applicability.
There is no one Of the pleas that would
affect a subsequent indictment; there is
not matter that would prevent sec
ond indictment. AS to knowledge Of the
state as to what went on In county
offices, the state could not have had
knowledge.
II was breath-taking assertion by
the state that pleas of abatement must
not be supported by affidavit. In all re-
visions OF the West Virginia G de there
was no change in the law on this point,
wet opposing counsel makes the asser-
zion that no affidavits are necessary.
Opposing counsel went farther than even
this astounding proposition and cited
case in Thirty-third West Virginia, to
show that only one affidavit IS necessary.
II had been said the pleas were VERT
fed, but the trouble was the plaintiffs
did not reach the facts. He defled the
plaintiff to show one single authority In
support of the plea in abatement on
merely information and belief.
An objection had been made to the list
of grand Jurors. He would speak OF this
later.
General Caldwell next took up the
matter of the preparation Of the grand
Jury list, and said the county court
could delegate this work to the clerk,
and Il Is the act Of the county court, The
plaintiffs give SHY construction TO this
part of the Code.
The statute law was next taken up,
Chapter 157 OF the Code, being the text
One and all OF the pleas are bad in law
and form. This is evident from peru
sal of the etatute law. The course Of
criminal Justice Is not to be stopped by
mere lnformalty. The legislators Of the
state were not 80 blind to leave matters
in such shape, and provided for cases Of
in1ity among court officers. Chapter Q
WINS quoted; II applies to the list OF free
holders. Tho third section provides for
grand Jurors
Here are two lists. You are asked to
dlHtort language. The plain, palpable
meaning is n list Of grand jurors, Not a
list OF eliglblea. That can only be made
under the third section. That list Is
handed to the sheriff and becomes list
OF grand Jurors.
Section two was further argued. II Is
not list OF grand jurors. II Is a list
from whom grand Jurors may be select
cd mado up Of 100 TO 100 persons. Yet
the plaintiffs attempt to call these grand
Jurors. Following UP on the same Sec
zion II was taken by the speaker that II
was not intended that ton members Of
the county court themselves shall write
the ltst; the clerk can do the work.
Taking up the third section, General
C,aldwell spoke Of the drawing OF the
grand jury The selections made by tho
circuit and county court clerks become
tho list OF grand Jurors. 1t Ia not In
tended that they shall stand over the box
md manuAlly do tho work They shall
"cauS0' II 90 BE- done. The county clerk
may have tho work done by the circuit
clerk.
Judging from argument Of plaintiffs
one would Judge there ia 40 further law
..tattpo a., tgro nj iuFt0n 4bun anett1f,H .