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

Ohio county, Judge Hugus on the bench.
there was decision In the well known
abatement cases. In which James Ar
thur and sIxty-slx other saioonists OF
Wheeling are in opposition to the legal
ity OF the indictments brought in by
the September criminal court grand
jury to the number OF several hundred,
most OF them for selling whlskey on
the short" license. Il Will be remem-
bered the pleas in abatement were met
with a demurrer on the part of the
state, and Judge Hugus' decision given
yesterday is the sustaining Of the de-
murrer. In the opinion handed down
by the Judge, not so much stress Is laid
on the irregularities attending the
drawing of the September grand Jury
as there Is upon the fact that the pleas
In abatement were not good In form
and imperfect in their allegations.
This morning the matter will come
up agaln on Mr., Howard's motion to
quash the indictments and Prosecutor
Meyers motion that the lltigants pay
the costs Incurred up to the present
time.
It is learned on good authority that
the interests behind the saloonlsts will
carry the case to the state supreme
court and TO the supreme court OF the
United States, II necessary Attorney
Smith, who has been associated with
Mr., Howard. was authority for this
statement.
The opinion of Judge Hugus in full
Is as follows:
In these cases the defendants tender
ed to each indictment fifteen pleas
in abatement. The state OBJ
jected to their filing and on Its objec-
tlon being ovverruled and pleas re-
mltted to be filed excepted and then
demurred to each of the pleas 30 filed
The pleas set up great number of ir-
regularltles In selecting and impanel-
ling the grand jury that indicted the de-
PENDANTS.
The attorneys for the state In demus-
ring 10 the pleas assume tho position
that as these are dllatory pleas aiming
to avoid the indictments 10 which they
were pleaded by setting up technical
matters solely, they should be Judged
by the strict technical rules applicable
to the draughtlnH OF suoh pleas; and
that IL these pleas are open TO a tech-
nlcal objection In their form or sub
stance the demurrer should be sustain-
ed and the defendants required TO an-
swer over.
This position and these demurrers
then impose upon the court the obli-
cation OF inuuiring into the rules gov
erning at common law the construction
OF pleas In abatement, and to decide
whether or not the matters attempted
to be set up in abatement Of the lndlct-
ments are pleaded according 10 the
strict requirements OF these rules
Chilly Il Chilly pleadlngs l5S 10 Am.
ed, and the same 473 16 Am. ed.) says:
"As pleas in abatement do not deny
and yet tend TO delay the trial OF the
merits OF the action great accuracy and
precision are required In forming them.
They should be certain 10 every Intent,
and certainty to every intent ga 23l
Is that which precludes all argument,
inference. or presumption against the
party pleading. II is that technical ac-
curacy which Is not liable TO the most
subtle ana scrupulous objection"
Whorton Grim. pleadlngs and prac.
sec, 427) says: A plea in abatement is
dllatory plea and must he pleaded
with strict eXaCtlness. 1t should pre-
clsely get forth the facts out of which
the defense arises. or q negative OF the
facts presumed from the record.
Bishop q Grim prac H5) says:
Pleas in abatement require the highest
degree OF certainty When, therefore, a
party answers a charge by matter not
going to It's merits and precludlng In
auiry into It, he should make the alle-
cation In the extreme degree certain,
that is in every particular. For Il is Just
that he who would ward of investiga-
tlon By technlcality should be requlr-
ed himself to stand very technically
erect. (2d sec. S2i).
Bishop further says ga sec 320: In
pleas in abatement it IS necessary 10
employ the extreme certainty and
quotes with approval. Gould pleadlngs
sec 81, where that author says: Ger
tainty to certain intent In every par
ticuiar requires the utmost fuilness and
pnrtlcularlty OF statement. as well as
the highest attalnable accuracy and
precision. leaving on the one hand moth
ing to be supplied by lntendment or
construction and on the other no sup-
possible special answer unobvlnted.
The principles laid down In the text
books are fully sustained In the adju-
dlcatlons and cases decided.
People VS.. Findiay, Mich. 23i; Bel
den We. Iaing. Mich. $685. Heyman VS..
Covell, 30 Mich, 159; People vs., Lander,
SO Mich, 1Og III; Burnhum vs. How
ard, 81 Ne. 572; Perry vs II. r., Il Me-,
gG0: SevOry vs.. Ngc, IS Nc, Psi; st VS..
Heselton, 67 Me- 500: Posky VS. West.
iG Miss. III; Ellis VS.. Ellis, Il, l., ll5:
ST vs. Duagan. 10 II. l., 4l6; Fowler vs.
Arnold, 2b H. 2Si; Nixon Va. Ins Co..
Al H., llI: Feasler We. schrievcr. Gs H.,
s22, Haywood va. Chostncy, 10 Wend,
iq5 state va, Emery, 10 Vt, 81: State
vs.. Ward, 60 W., ii2; Mundum vs.. Joy.
rs N. H., 1dl and 3i2: Lyons w. Raffor-
ty 20 Mlnn., b21, state w, Ward, "a
Mich, bia state Va. Ward, GS Mich,
g26 and 900. state Va. Reeves. 10 So r.,
pOa and pos. state Va. Lawrence, qs6 A.
A.. ga. Horton vs., Towers Lciah, 81
aud 5S (llon Judge Tucker says the
utmost strlctness IN these pleas In
nbalcment). Hovey We Insurance Cum-
pany, a W. Va. $50; Woodell Va, West
Virginia Improvement Company, rs W.
Va 20, Quarrler va. Insurance Co.. 10
w, va, J2i, state vs. Baker % W. Va,
a2i.
II Ia q sunicent answer to this com-
plnlnt to sng that our laws do not mcn-
ilon such n thing as n list OF grand lur-
ara that as no provision for selecting
llat " grand Jurors by any court, board
or olIlccr, much less providing Tor draw
lug grand Jurors from such q prepared
list The lanuuopo then llst " grand
iurots prepared by Cthc county court
of Ohio county, or (by the board ot
commissioners of Ohio county, or tthe