The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1897-11-13

mean TO refer TO the list OF not less than
one hundred or more than one hundred
and fifty free-holdeTs mentioned in sec
2. OF CHI. l57, or he may refer 10 the
grand Jurors to be drawn by ballot in
sec. 3, OF that chapter
1t Is not absolutely certain to what
he does refer in this regard. And there
must be certainty TO every intent
leaving nothing to intendment Inference
or argument, 1t Is certain, however,
that the pleader IS In error In his as
sumption that grand Jurors are TO be
drawn from u list of grand Jurors pre-
pared, as he has varlously alleged, or
that a valid grand Jury can be so
drawn.
Again, as Ohio county has Its board
OF commissioners "a special tribunaD,
and clerk OF the county court to tran
sact the business that In other counties
OF the state Is done by county courts, 1t
Is error to use in these pleas county
court OF Ohio county, instead OF board
OF commissioners OF Ohio county.
When you speak of the county court
OF Ohio county, where a constitutional
tribunal exists in lieu of the county
court and where there Is no county
court the query arises what court do
You mean2Such query Is proof of
vagueness and lack OF certainty in the
plea that is fatal 70 1t as plea in
abatement.
This objection, that is, the use OF
the phrase county court OF Ohio coun-
~, also, obtains to plea 70 IN addition
TO pleas l, 2, 8, 4, 8, 10, II and Is,
Pleas l, 3. 4, 6, Q. and 10 and ~ are
open to the charge OF dupllcity and are
bad on that ground. Duplcity can be
predlcated on faulty and insufficient al
legations, 80 to 81, And such Allegations
are not to be regarded as surplusage.
Pleas 4, s, Q, and u each contain an
aVerment, that some Of the facts set up
in them are made upon Information and
belief, or as he is informed and be-
lleVes.
Such allegations are directly viola
tive Of the rules that all averments in
all pleadings at law must be positive,
direct and certain.
No averment OF fact can be found IN
the forms OF common law pleading, pre-
dictated upon information and belief. II
this is true as to common law pleading
generally, how true 1t must be that no
such an averment can be permitted In
plea in abatement
Plea No. 6 alleges the grand jury was
Illegal because 1t was not drawn from
a list of grand Jurors of not less than
one hundred, nor more than one hum
bred and fifty names, and II would be
just as Illegal II drawn from such list.
Nowhere does the law say grand jur-
ors shall be drawn from a list OF one
hundred or one hundred and fifty
names. Sec .. OF chapter 1877, says; All
grand Jurors shall be selected by draw
ing ballots from the said box In the
manner prescribed In this chapter and
the persons whose names are written
on the ballots so drawn shall be re-
turned to serve as grand jurors.
Plea is bad because It does not al
lege that the clerk OF the county court
did not cause the grand jury TO be
drawn. II is not enough to allege he
did not draw 1t. Section ., chapter 1877,
provides that the clerk of the county
court shall "be summonded for the pur-
pose OF drawing the ballots for the
number OF grand jurors required" and
the said section further provides the
said clerk shall attend and cause the
proper number OF grand jurors to be
drawn from the box and list to be
delivered to the proper officer" Section
2 of the same chapter provides that the
ballot box shall be opened by the clerk
of the county court. These are all of
his functions. He may draw or cause
10 be drawn the proper number % bal
lots or the proper number of grand
Jurors. The plea should therefore have
alleged not only that he did not draw,
but that he did not cause to be drawn"
However, am very much inclined to
the opinion that in the matter and man
ner of drawing ballots or grand jurors
the statute is purely directory as to the
functions OF the two clerks, and that no
Irregularities can be set up in plea in
abatement as to the manner and mode
of drawing resorted to by the clerks I'M
less fraud and corruption are alleged.
This conclusion, of course, dlsposes of
plea No. s, 1t alleging that the grand
jury was not drawn by the clerk of the
county court, nor by the clerk of this
court but by Charles II. Henning in his
capacity as clerk Of the circuit court
This plea. too, should have contained
the averment that the clerk Of the coun-
ty court did not cause to be drawn, in
addition to the allegation did not
draw" The allegation that 1t was
drawn by Charles II. Henning in his
capacity as clerk Of the circuit court,
is the announcement of a conclusion Of
law and not OF fact. The facts should
have been averred to show the capacity
in which Hennlng acted. 1t ought to be
shown whether 1t was the manual act OF
drawing or OF signing some process or
paper. or both, that warranted the allie
cation that Charles II. HennlnE was
acting at the time In his capacity of
clerk of the circuit court rather than in
his capacity as clerk of this court.
The consideration of pleas Nos Z and
Just passed upon have left me in great
doubt as to the details OF drawing the
ballots or grand Jurors.
So, far as chapter 157 is concerned, tho
clerk OF the circuit court seems to be
the mere custodian OF the list Of free
holders and Of the ballot box, and
charged with the duty OF Issuing the
venire facias and summons for the
clerk Of the county court. The latter
seems to be the only proper person to
open the ballot box and cause the jurors
10 be drawn. He is summoned for the
purpose OF drawing the ballots for the
shall attend and cause the proper num-
Der OF grand Jurors to be drawn"
Neither clerk seems to be charged
with the duty OF actually or manually
drawing the grand Jurors.
The drawing and summoning Of grand
Jurors, chapter 1J7 says. shall be accord
ing to sections o. 10. II, IL and 10 OF
chapter 116. II section Of chapter 116
had been included would say unhesl-
tatingy that the jury commissioners
appointed or designated in chapter ZIG
are tho proper manual drawers. Sec
ton s provides that the clerk OF the cir
cult court shall summon the jury COM
missoneTs for the purpose OF drawing
the proper number OF Jurors. II there
az Fnw