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

individuals. The law does not, OF
course, authorize this.
In plea No. II is aimed to be, said
that the grand jury was prepared from
llst 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, 4
and ., coupled with other proper aver
ments, would have been properly parts
OF good plas
one or the averments and an essential
one, that should have accompanied each
OF these allegations, is the averment:
without this that the said grand
/ Jurors nor any of them were obtained
from the ballots or drawn from the box,
but We're only obtained in the mode
heretofore prescribed"
The law preRumes regularity ana 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. IT is like
the negatlon In plea OF misnomer.
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.. Flem-
Ing, sc Me, li2, There the ground OF
the plea was the want OF seal on the
writ OF venire facias, and 1t was alleged
that q named grand juror was drawn
and summoned under and by virture 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 faelas heretoforeset forth in this
plea"
In this sort Of negation the Idea is to
anticipate the reply, that while It was
true he was drawn as alleged. yet as a
matter OF fact he was, also, drawn in
the very mode prescribed by law, Every
supposable reply must be anticipated
and met by the plea in abatement The
reasoning applied to pleas Nos. 3, 4 and
8 are applicable TO No. 6.
II alleges the grand fury was drawn
from list of 2iS names. It should
have negatived the possibility of It's be-
ing drawn from ballots or from the box
containing the proper number Of ballots
lf,the llst OF freeholders was never
selected at all by the board OF commits
s!oners, or contained the names OF less
than 100 or more than $50 freeholders the
fact should be averred, and then, TO
make the plea good, 1t should be ayerred
that all the names on such objectionable
list were (lf that Is the fact) transcribed
on ballots which were placed in envel-
opes 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 salG
ballots and said box, and not otherwise.
The ( ga must show that there was
error 4, the step Immediately preceding
the drawing and that this error attached
to the grand jurors drawn.
To constitute valid grand jury In this
county, believe 1t must be drawn by
drawing the proper number of ballots
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 district.
That these ballots must be prepared
from list of not less than 100 or mora
than 100 freeholders-must be within
these limits.
That this list OF not less than 100 or
more than 100 freehoders must be pre-
pared by the board OF commissioners In
this county.
These provisions, as to preparation. as
TO number, and as to drawing from bal
lots are mandatory.
Violations. however, Of these require
ments can only be taken advantage ~
and be made effective in abate indict.
ments by the preferring of proper pleas
In abatement, 1t Is my opinion that none
ts. kl.Ws, AtN
OF the slXty-seven defendants indicted
by the September grand jury are good in
form.
After nearly completing my examina-
tlon OF the pleas and the rules OF plead
Ing APPLICABLE to them, the results OF
which 1 have given you, my attention
was directed to certain provisions In
Chap. 20 and Chap i5s Of the Code, aP-
parently applicable here.
Sec. As, Chap. 20, contains the provls-
ion: And no violation or presentment
for violation OF the revenue laws shall
be dismissed without trial" And Sec,
81, Chap. 1853, is:
mo exception shall be allowed for any
defect or want of form in any present
ment or indictment founded on any pro-
vision of Chaps. 80 or Isl, but the court
shall give judgment thereon according
to the very right OF the case.
The portion Of Sec. As, Chap, 80 cited,
taken In connection with the fact that
Chap. 80 Is to be construed as remedial,
probably goes no farther than 10 indicate
that all possible constructions and In
tendments will be given by the courts to
carry out it's provisions rather than to
extend and encourage favorable consid-
Grafton OF technical matters of objection
to proceedings for Its violation.
Sec. q, OF Chap l5S does. however seem
TO me to be intended 10 deprive the de-
PENDANTS In indictments for violations OF
Chap 80 of all dilatory and technical
matters of defense.
The phrase mo exception shall be al
lowed for any defect in any indictment"
10 very broad. II Is comprehensive
enough to include all matters the defend-
ants seek TO set up to these indictments
by their plea In abatement. And II 40,
the plea should be rejected, no matter
how perfect they may be.
This is n provision Of the old English
statutes relating 10 gaming, and was
incorporated by Virginia into her stat
utcs. II has not only been retained but
extended In Virginia 80 as to include vio-
latlons of the revenue laws; and in this
shape we find Il in our statutes The
chapter Of the Code relating to revenue
is 80 and that relating to gaming Is 15l
Uf the Code and It is to these that Sec. q
OF Chap 1853 refers
Practical application OF this Sec, 81.
has been made in Virginia, so far as
can learn, only to cases of violation OF
the law against gaming, In this state II
has been referred to a number Of cases OF
violation OF the revenue laws that have
gone to the supreme court But there
has been no application or discussion,
even Of the extent OF its applicability, fur