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


County,; that is not only the grava-
men, but the language, of each plea is
that the grand jury was no draw from a
list OF grand jurors prepared by the
County Court, Board of Commissioners
or clerk of the County Court
1t is sufficient answer to this COM
plant to say that our laws do not men
ton such a thing as list of grand
jurors and makes no provision for Sc
lecting list of grand jurors by any
court, board or officer, much less pro-
viding for drawing grand jurors from
such prepared list. The language
then, List of grand jurors prepared bv
(the County Court of Ohio county, or
(by the Board of Commissioners of
Ohio county,, or (the clerk of the Coun-
ty Court OF Ohio county,, is inaccurate
and insufficient to determine what body
OF persons is meant. Inference and ar
gument are necessary to determine the
pieader's meaning. In truth these are
insufficient. He may mean to refer to
the list of not less than 100 or more
than $50 freeholders mentioned in sec
ton 2, of chapter 157, or he may refer
to the grand jurors to be drawn by bal
lot in section 8 of that chapter. 1t is
not absolutely certain to what he does
refer in this regard, and there must be
a certainty to every intent, leaving
nothing to intendment. inference or
argument. 1t is certain, however, that
the pleader is in error in his assump-
| ticn that grand jurors are to be drawn
from list of grand jurors prepared as
he has variously alleged, or that a
valid grand jury can be SO drawn.
Again as Ohio county has its Board
| of Commissioners Ga special tribunal)
and a clerk of the County Court to
transact the business that in other
counties of the State is done by County
Courts, it is an error to use in these
pleas County Court of Ohio county in
stead of Board of Commissioners of
Ohio county.
When you speak of the County Court
OF Ohio county, where a constitutional
tribunal exists in lieu of the County
Court, and where there is no county
court, the query arises what court do
you mean? Such a query is proof of
! vagueness and lack of certainty in the
plea that is fatal to it as a plea in
abatement
This objection, that is the use of the
phrase County Court of Ohio county, al
so obtains to plea II in addition to pleas
l, 2, 3, 4, s, IL, IA and Is. Pleas l, 3, 4,
5, 9, 10 and II are open to the charge of
duplicity and are bad on that ground.
Duplicity can be predicated on faulty
and insufficient allegation. And such
allegations are not to be regarded as
| surplasage.
Pleas 4, 5, 9 and IL each contain an
| 9Vprn12Ot that cCrop of tho faotc cot nm
[ in them are made upon information and
I belief, or as he is informed and be-
lieves.
Such allegations are directly viola
tive of the rules that all averments in
all pleadings at law must be positive,
direct and certain.
No averment Of fact can be found
in the forms of common law pleading
predicated upon information and be-
lief. If this is true as to common law
pleading generally, how true it must
| be that no such an averment can be
permitted in plea in abatement. Plea
No. alleges the grand jury was illegal
because it was not drawn from a list of
| grand jurors Of not less than 100 nor
more than $50 names, and it would be
! Just as Illegal if drawn from such a
|
! jurors shall be drawn from list of
100 or $50 names. Section of chapter
157 says all grand jurors shall be select
| ed by drawing ballots from the said box
! in the manner prescribed in this chap
! ter, and the persons whose names are
written on the ballots so drawn shall be
returned to serve as grand jurors.
| Plea Z is bad because it does not al
/ %.-.4 L. IL
cid not cause the grand jury to be
drawn. 1t is not enough to allege he
did not draw it. Section 2 of chapter
157 provides that the clerk of the Coun-
ty Court shall be summoned for the
purpose of drawing the ballots for the
members of the grand jurors required, 2
and the said section further provides
| the said clerk shall attend and cause
the proper number Of grand jurors to
be drawn from the box and a list be
delivered to the proper officer" Sec
ton 2 of the same chapter provides
that the ballot box shall be opened by
the clerk of the County Court.
These are all of his functions.
He may draw or cause to be drawn
the proper number of ballots or the pro-
per number of grand jurors. The plea
should therefore have alleged not only
that he did not draw, but that he did
not cause to be drawn"
However, l am very much inclined to
the opinion that in the matter and man
ner of drawing ballots or grand jurors
the statute is purely directory as to the
| functions of the two clerks, and that no
irregularities can be set up in a plea in
| abatement as to the manner and mode
of drawing resorted to by the clerks I'M
less fraud and corruption are alleged.
This conclusion, of course, disposes
of plea No. s, it alleging that the grand
jury was not drawn by the clerk of the
county court, nor by the clerk OF this
court, but by Charles H. Henning in his
capacity as clerk of the Circuit Court.
This plea, too, should have contained
| the averment that the clerk of the
County Court did not cause to be drawn,
in addition to the allegation did not
draw" The allegation that it was
drawn by Charles H. Henning in his
capacity as clerk CT the Circuit Court
is the announcements of a conclusion OF
law and not Of fact. The facts should
have been averred TO show the capacity
in which Henning acted. 1t ought to be
shown whether it was the manual act OF
drawing or of signing some process OF
paper. or both that warranted the allega-