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

proper number CT jurors. II there was
any statutory warrant for summoning
the jury commissioners when the veniTe
facias for the grand jury and summons
to the clerk Of the County Court are
issued there could be little doubt that
the law intended the jury commiss. on
er to draw the grand jury in the pres
! ence Of the two clerks, and under the
supervision Of the county clerk in the
manner prescribed by section II OF
chapter 116.
AS it is. the matter is in the hands of
the clerk Of the County Court, and the
law governing him 40 to details is direc-
tory only. His manner of exercijing
! his functions in this behalf cannot be
investigated unless he acts corruptly
and to the injury Of the complaining de-
| PENDANT.
Plea No. II, setting up that named
grand juror was not freeholder is bad
because the statute provides that the in
oictment shall not be quashed or abated
On account Of the disqualification or in
competency of any one of the grand
jurors who found it.
In pleas Nos. 8, A. and 6, already adj
| judged bad, there are allegations that If
properly supported and sustained by
been made the basis or material part Of
so many good pleas.
In plea No. 8 it is said, among other
things, that the grand jury was drawn
from a list of grand jurors prepared by
T. C. Moffat, person not authorized by
law to prepare such lists of grand lur-
ors. The law does not authorize such
proceeding as is limited at, and a grand
Jury so Cbtaied would have been bad.
In plea No. it is apparent that the
| pleader meant to allege that the grand
jury was drawn from list Of grand
| jurors prepared by some of the mem
bera of the board Of commissioners as
! individuals. The law does not, of
course. authorize this
In plea No. it is aimed to be said
that the grand jury was prepared from
list of grand jurors partly prepared by
one w. w. Irwin. This, of course, is
unauthorized.
Now these allegations that have been
specified in these three pleas, Nos. 3,
and 5, coupled with other proper aver
ments, would have been properly parts
of good pleas.
One of the averments and an essential
one, that should have accompanied each
Of these allegations, Is the ayerment;
Jurors nor any of them were obtained
from the ballots or drawn from the box.
but were only obtained in the mode
heretofore prescribed.
The law presumes regularity and pre-
sumes from the existence of the record
of the finding of the indictment that 1t
was regularly formed, and this pre-
sumption must be negatived. 1t is like
/ the neSatiOn in a plea of mi9n0mer.
That the defendant was never known
by the name by which he was indicted.
He must not only deny that it is his
name, but he must deny that he was
ever known or called by that name.
1t is particularly like the allegation
concluding the plea in State vs.. FEM
ing, Sc Me-, 142. There the ground of
the plea was the want of a seal on the
writ of venire facias, and it was alleged
that named grand juror was drawn
and summoned under and by virtue of
this defective writ. But the pleader did
not stop there, but added:
without this that said - was
drawn as said grand juror, pursuant to
any venire, except said supposed writ of
venire facias heretofore set forth in this
plea"
In this sort of negatiin the idea IS to
anticipate the reply, that while il was
ture he was drawn as alleged, yet as
matter of fact he wa9 also, drawn in
the very mode prescribed by law. Ev-
cry supposabie reply must be anticipat-
ed and met by the plea in abatement
The reasoning applied to pleas Nos. 8,
and are applicable to No. g.
1t alleges the grand jury was
drawn from list of 24S names. It
should have negatived the poss. bility Ct
it's being drawn from ballots or from
the box containing the proper number
Of ballots.
If the list of freeholders was never
selected at all by the Board of Com
missioners, or contained the names of
less than 100 or more than $50 rfee
holders the fact should be averred,
and then, to make the plea good, i.
should be averred that all the names
on such Objectionable list were if that
is the fact Transcribed on ballots
which were placed in envelopes and
put in the box, and that there were no
other ballots in said envelope or box,
,, and that the grand jurors returning
the indictment were drawn from said
ballots and said box, and not other
wise
The plea must show that there was
error in the step Immediately preced-
ing the drawing and that this error
attached to the grand jurors drawn.
To constitute valid grand jury in
, this county, believe il muai a-
by drawing tie proper number Of bal
lots from the envelopes in the box
, and that there must be at least one
! ballot from each envelope or
one grand juror at least from each dis
! trict.
That these ballots must be prepared
. from a list of not less than 100 or
more than $50 freeholders-must be
. within these limits.
, That this list Of not less than 100 or
, more than $50 freeholders must be
! 4 prepared by the Board Of Commits
sioners in this county.
These provisions, as to preparation,
as to number, and as to drawing from
ballots are mandatory.
Violations, however. Sof these re-
duirements can only be taken advan-
: tage of and be made effective to abate
{ indictments by the preferring of prop
) er pleas in abatement. 1t is my opin-
ion that none of the pleas in a6ate-
! ment filed in theS cases of the sixty