The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1903-04-15
Defendants Attorneys Fail I'm Their
Attempt to Have the Indict-
ment Quashed.
LAW OF 1897 NOT REPEALED
SPECIAL JUDGE THORNTON DECIDES
FOR THE STATE.
The Venire of Forty Men Practically
Exhausted without a Jury
Being Secured.

A great many of the men called for jury
service in the case against Sam Martin. the
colored man charged with grave robb!ng,
are trying to shirk the Job of serving on
this jury. Yesterday when the work of
impaneling the jury commenced there
was a special venire of about forty men to
begin on, and at o'clock the venire had
been almost exhausted and the jury had
not vet been secured.
The case is on trial in the Criminal Court
before William w. Thornton, special judge.
Martin is being tried for robbing the grave
of Mrs, Johanna Stilz. south Of the city,
Nearly all morning was consumed in an
argument over a motion to quash both
counts in the indictment against Martin.
Preliminary to this motion the attorneys
for the defense. Taylor Groninger and for
mer Judge McCray. asked the courts per-
mission to withdraw their clients plea Of
not guilty.
Their motion to quash was based on the
contention that an act of the Legislature
of 1908 repealed the law of 1897 under which
this Indictment was drawn. They claimed
that the general repeating clause of the
act of 1903 not only repealed all laws within
the purview of the act Of 1897. but that
there was such an inconsistency between
the two acts that it necessarily annulled
the act of 1897 regardless of the general
repeating section OF the new act.
STATES CONTENTION.
The state contended that the new act
simply re-enacted the law Of 1879 and there
fore the latter law was continued in force
and really had never been repealed. There
fore it was held that the defendant could
be prosecuted under the act Of 1903. The
state further maintained that under Sec
ton 24s of Burns's Revised Statutes al
though the act Of 1879 was repealed as to
the offenses committed under II and when
IL was in force. the defendant could be
prosecuted under 1t: The Burns section re-
ferred to uses this language: And the re-
peal of any statute shall not have the ef-
feet to release extinguish any penalty,
forfeiture or liability incurred under such
expressly provide; and such statute shall
be treated as still remaining in force for
the purpose Of sustaining any proper ac-
tion or prosecution for the enforcement of
such penalty, forfeiture liability"
The court held with the State on the
proposition and declined to Quash the in
ths the second In tse
ment. which charged the defendant with
''concealing'' the body. The count which
stands and on which the prisoner will be
law which says that ANY person who shall
without due process OF law or the consent
OF the surviving husband or wife or next
of kin of the deceased person take from
any grave, vault or other burial place any
human body or any part thereof which has
been Inferred there for any purpose other
than the lawful interment OF the same
shall be deemed guilty of felony" The
other count of the indictment related TO
the aiding in the concealment OF the body
after IL was taken from the grave.
REASON FOR STATES POSITION.
The position of the State was that Il
could try the case on the frst count be-
cause the new law re-enacts the old on the