The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1897-10-15

criminal court, Judge Hugus on the
Sench, convened, and the ,well-known
abatement cases, in which Mesrs, John
A. Howard and s. G, Smith represent
sixty-slx indicted saloonists, who set
up the claim OF the invalldity OF the
recent grand jury and the consequent
setting aside OF their acts, were called.
After Mr., Howard had made an ex-
haustive argument, in which he sup
ported the several pleas by citing legal
authorities, Judge Hugus called upon
the state for Its argument, which, how
ever, was not forthcoming at this time.
Prosecutor Meyer, said that he would
Insist On the filing of separate pleas In
each OF the slXty-six cases. This would
take some time. said Mr., Howard, but
he could assure the court the demand
would be complied with before A o'clock
yesterday afternoon. The judge, how
ever, postponed further consideration of
the abatement cases until Saturday
morning at $3.50 o'clock,
Mr.. Howard stated to the newspaper
men that this move of the state would
result in the pillng up of more fees,
When ar Intelligenger reporter asked
Mr.. Meyer as to this phase of the case
he replied that he insisted upon separ-
ate pleas for the protection of his side
Of the case. The argument Of Mr.,
Howard yesterday vas on the case of
the state VS.. John Arthur. II that case
were decided against Messrs, Howard
and Smith on the pleas entered they
nO.t1l fhnN nntaE IlnaRank p1ang IN tina
other cases, OF which there are sixty
five, thus making an almost endless
proceeding in court, On the other hand,
when Messrs. Howard and Smith pre-
sent the same pleas In the other cases
the decision in the Arthur case Will be
the decision of the Others.
In his argument Mr.. Howard called
attention TO a Virginia decision In which
any departure from the statute regula-
lions lnvalidates. Next, he said, is the
plea that over 200 names were drawn
for the recent grand jury, while the law
full number Is between 100 and $50. An
Irish case, in which the great O'Con-
nell was concerned, was cited to assist
his stand in the present cases. When
the legislature provides specifically for
the, drawing OF the grand jury a de-
parture from the provision makes the
grand Jury illegal.
There were also violations OF provi-
slons for the custody of the list and box
used in drawing the grand Jury. 1t is
alleged the box was in the custody of
the circuit clerk and he opened 1t alone
In the vault and arranged the ballots
In such manner that he could make n
selection OF his own choice II he should
draw the names. The statute provides
that the drawing shall be purely q lot
terry. In this Ease the circuit clerk
drew the names OF his own choice, Fol-
lowing this phase, Mr.. Howard quoted
a case In Pennsylvania where only a
slight frregularity quashed a grand
jury. II such n slight violation Invalid
ates, what ought this court and the
supreme court OF West Virginia to do
when 1t Is shown the circuit clerk
opened the box and handled Its con-
tents? This plea alone, he claimed, Is
sufficient to quash the indictments. In
Indiana there is a statute for curing
slight irregularities, but even in the
face Of such a statute when there was
an important l~rregularlty. the courts
held that the prisoner Is entieled to a
grand jury without stain.
Mr.. Howard cited a Baltimore case
greatly resembling the n here, and
submitted that the decision ought to
have weight.
"what have we here?" asked Mr.,
Howard.
The first step required Is to select n
list, and the persons to select It are
designated by the statute. They never
did II. It seems a waste Of time to go
further. This cannot be treated as Il
slight irregularity.
The next stcp-not to have more than
$50 m There we're 24S.
Next, the county court Is to see as to
the placing of the names In the GUS
tody Of the circuit clerk.
Then the circuit clerk Is to keep the
box in his custody without being
opened except according to law. This
was violated.
The county clerk Is required to be
summoned, hut the circuit clerk did the
drawing. contrary to law.
Then sixteen men were summoned
irregularly.
In every step there was violation OF
statute provisions. Can II be possible
all these are mere Irregularities?
There Is a recent consideration OF
these questions before the supreme
court In the case Of the state vs.. Eas-
ton. Two OF the Judges were In line
with the decision he had cited, Judges
Dent and English, They take square
ground against any application OF the
defacto doctrine.
In conclusion Mr.. Howard said the
one fatal defect IN the whole proceed
Ing Is the fact that there was no grand
Jury list prepared by the county clerk
according to law, and therefore there
could be no legally constituted grand
Jury. In addition there had been vlo-
latIons OF tho statute all along the line,
The plea In abatement, he said, ought
TO be sustained.
Mr. Howard offered the same plens In
the cases Of the other B%nloonisls as those
already presented In the case OF the
state w, John Arthur.
Mr.. Meyer, FOR the state. demanded
that separate pleas In writing be sub
miiIp1. IA Ju1up Hupup adjourned the