The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1897-06-09


undertaken to compel person to submit to
an indictment preferred by grand jury
incompetent at common law to sit as grand
jurors, courts have not hesitated to pro-
nounce such indictments void encroaching
upon the constitutional rights of the accused.
II the Indictment is not found by a legal
grand jury, it is not found by a grand jury
known to the constitution and. the law. If
this be so, it follows a necessary conse-
quence, that person indicted by an incom-
petent grand jury may question their author
lty. He certainly cannot be called upon to
answer change unless it has been preferred
accord g to the form of law and by COM
petent grand jury, and if he has not been
indicted by competent grand jury the Ques-
ton folloys How can he take advantage OF
their dlsQua iihcations? For II qualihcations
are essential, then disqualihcauonS must De
the subject of exception AS we have seen,
under cur statute, prisoner in court, or
one hound over to the grand jury, mas the
opportunity to challenge for cause before
the jury retires. But in case the grand jury
| find an indictment against a person who is
not under prosecution at the time or the
1mpaneling of the grand jury. as is the fact
in the Of this accused and if the accused
has had no opportunity to interpose the
statutory challenge, how is he to avail him
self of his legal rights in respect to the safe
guards secured to him by law?
If he cannot do so by plea, he cannot do it
in any manner. Then the law works unequal.y,
by allowing one class OF persons to object to
the competency of the grand jury while an
other class, accused of the same offense, has
no such privilege. This cannot be, for the law
same principle which gives the right of chal-
lenge to the prisoner in court must also give
the person who is not in court the right to
accomplish the same end by plea, and such
plea is fully sustained by competent au-
thority.
The p,eadings in this case, therefore, admit
that the grand jury which found the indict-
ment is not a legal grand jury. Therefore, the
accused is being held to answer criminal
charge without first having been indicted as
required by the constitution. For ii is the
Z Nf hp cto md he CIfar n
constitution, to place none but legal jurors In
the panel, TO the end that the accused shall
be indicted by lawful grand jury, and ii the
accused has the inherent or constitutional
right to be indicted by a legal grand jury, it
must follow that he has the same right TO set
forth the legal disqualifcations of the grand
jurors, when the records of the court show
them 10 exist For if the accused may not
plead the legal disquaifcatons of the grand
jury in avoidance of the Indictment of what
avail to him IS the constitutional or inherent
right to be indicted by legal grand jury?
Unless such plea is permissible, the right
TO be presented by competent grand jury
must often be denied.
The better opinion deduced from large
number of authorities, seems to be that ir-
regularities in the selection and impaneling
OF the grand jury, which do not relate to the
incompetency of the individual members,
In general only be objected to by challenge.
But if the defect consist in the absence Of
the essential qualifications for grand jurors,
1t is an organic defect in the grand jury which
depr1ves it of the character Of grand jury in
constitutional sense, and the court is bound
to take notice of it, although no statute au-
thor1ze it or even if the statute assumes to
preclude the making of the objection, and, in
the absence of any better remedy, the courts
have invariably held the plea in abatement
permissible for this purpose, 1t being consist
ent with justice and equity to leave the mat
ter open to judicial inquiry in this manner.
Such proceeding is calculated to give effect
to the humane provisions of our constitution
and secures to the accused the right to have
the indictment presented by men unexcep-
tional in respect to qualification.
In this view of the the court is of the
opinion that the disqualification of the grand
juror, Lindquist, he being an alien and not
qualified elector of the State of Minnesota,
may by plea in abatement be interposed after
indictment, before issue Joined, by a person
not under prosecution for an offense in avoid
ance of the Indictment found by the grand
jury OF which he was member, and in which
he participated. and that the motion to quash
and set aside the indictment should be grant
ed 1t is so ordered.
At the conclusion of the reading of
the order, Judge Lewis said:7aI'e.
The courts does noe feel justified in
absolutely diScharging the defendant
Albert Scheffer, but will order his
case resubmitted to the present grand
jury"
Similar disposition was also made of
the cases against Messrs. Bickel and
KittSon. Then turning toward the
grand jury, Judge Lewis asked Fore
man Burns whether the grand jury
had any work to do Mr.. Burns replied
that it had. The grand jury was then
| about to retire by order of the court
when G. M. Nelson, attorney for Mr.
Scheffer, interrupted the proceedings.
Before the grand jury retires," said
Mr.. Nelson, ct desire on behalf of Mr.
Scheffer to interpose challenge, both
! as to the panel of this grand jury and
also to each individual member there
| off, ,sit<raF. era.. aet+.
Attorney Mcdonald, representing Mr..
Bickel, requested the. same privilege
He wished to challenge each individual
Of the grand jury for bias in having ex-
pressed an opinion on the cases re-
submitted. Mr. Mcdonald also took
exception to the order of the court
d1scharging Lindquist from the jury
j. j. McCafferty interposed the same
| challenge in behalf of Mr.. Kittson
Mr.. Mcdonald wish to challenge
| William H. Burns, the foreman of the
| grand jury.
County Attorney Anderson-I object.
| This is not new grand jury, but
simply an adjourned meeting of the
| grand jury. l submit that these de-
! PENDANTS cannot challenge the mem
bers OF the grand jury at this time.
Inc grand jury is not being organized
now.
You have had no grand jury up to
the present time retorted ATTORNEY
Mcdonald. IF this grand jury acts
! IL must be on the charge of the court
The Court am of the opinion that
no challenge can be interposed at this
time.
= Exception was taken and allowed.
g. M. Nelson insisted that the de-
PENDANT, Scheffer, could not be de-
prived Of the right to challenge the
grand jury. This defendant" said Mr..
Nelson, lis in court for the first time
so Tar as this grand jury is concerned.
| by the decision of the court it follows
! that up to this time there has been no
/ grand jury. This is the beginning of
! the work of this grand jury. This
/ grand jury, If grand jury at all is
| grand jury de novo. The defendant
is entitled to challenge the panel of
this grand jury and each individual
! member thereof. There is no other
way provided whereby this defendant
! can take advantage of any irregularity
! in this grand jury
IF this defendant occupies anv nosi
ton IN court at all, his case is slIh-
! mitted for the first time. It is GER
talnly the first time he. has had any
opportunity to interpose a challenge
we snail certainly except to any order
or the court refusing us the right to
! challenge and discharging Ijndnuist.
from the grand jury
The Court-The court is of the onin--
Jon that the challenge comes too late
] Attorney McDonald-This grand i11rv
has formed and expressed its opinien
! on these indictments, and I want ia
! place Foreman Burns on the witness
stand to show this.
County Attorney Anderson-The
/ state Objects
The Court-The objection is sustain