Daily capital journal. (Salem, Or.) 1896-1899, 1898-11-15
BILL OF EXCEPTIONS
Has Been Filed in the Dewitt Case
10 Get Defendant Released.
To the Supreme Court of oregon-the
Legality Of the Grand Jury to
BE Tested.

Judge Geo. II. Burnett, Of Depart
ment No. I, OF the state circuit court
for Marion county, has allowed the
defendants bill of exceptions in the
case of the state OF Oregon VS.. II. w.
Dewitt.
The defendant was indicted by the
grand jury during the October term of
court, tried in the circuit court, found
guilty Of the crime charged in the
indictment and sent TO the reniten'
tiary for three years. Upon the
grand jury being found to be an
illegally constituted body, Mr., Pogue
attempted to free his client, on the
ground that he had been illegally
indicted and tried, but could not get
his case into court without TIE
defendants presence; he could not
secure the attendance Of the defend
ant. aud will therefore 10 order to free
his client, carry his case to the
supreme court. Mr.. Pogue is CONT
dent OF succeeding In his under
taking. Following is the document
| In full:
abe il remembered that at the
regular October term, 1893, Of the
above named circuit court grand
jury was regularly drawn, empaneled,
and sworn, aud after said grand jury
had retired to consider its duties, NJ.
Fitzgerald, one OF the grand jurors,
became sick and unable to discharge
his duties as such grand juror, and
was thereuppu excused by the court
from further attendance upon the
court; whereupon the court directed
the clerk TO draw another grand Juror
TO serve in place AID stead Of NJ.
Fitzgerald, and tho clerk drew from
the jury box the name OF Thomas
Kinsey, who was then sworn to act as
grand juror 10 the place and stead Of
said Fitzgerald, but when the clerk
drew the name OF Thomas Kinsey
from the jury box, there were twelve
names Of Jurors then In attendance on
said court not in the box, they having
been drawn out and empaneled as
jurors on civil case then on trial.
Thereafter the clerk made record,
which does not show that said twelve
names were not IN the box at the
time said Thomas Kinsey was drawn
to dill the place OF said NJ. Fitzgerald
so excused.
The grand jury, as thus cOnsti-
tuted, after the excusing OF said NJ.
Fitzgerald and the drawing ana
swearing Of Thomas Kinsey, returned
an indictment against the defendant
charging him with the crime Of hay
ing In his possession an obscene pa
per, with the intent To show the same,
upon which he was tried, convicted
and sentenced 10 the Denltentiary for
the term OF three years.
"After the judgment OF conviction,
and after the defendant was imprs.
oned In the penitentiary in pursuance
thereof, his attorney on the 10th day
OF October, 1898, filed a motion TO set
as ide such Judgment, and for an order
directing that said defendant be
allowed the right TO have said charge
against him resubmltted to a legal
grand jury at the next regular term Of
said court, alleging as reasons there.
fore that Judgment was against law,
and in violation OF the constitutional
rights OF said defendant, baslng said
motion upon an atiidavit made by
himself, wherein he alleged that
neither he nor the defendant knew
that said drawing OF the name OF
Thomas Il. Kinsey was otherwise
than shown by the record, until after
Judgment had been pronounced upon
said conviction.
"rhe defendant not being present in
court, but then confined Ia the penl.
tentiary OF the state OF Oregon, the
court made no order or judgment
concerning said motion. To the fall
ure or the court To naked an order or
determination concerning said
motion, counsel for the defendant
then and there excepted"
Mr.. POgue assigns other points In
hin of ayaantInnE puar Vnatfa.. sho.