Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1904-02-11

CHARLES w. JONES, Clerk
! FRANK j. HAM, Sheriff
THOMAS LEIGH. County Attorney
FRED w. LEE, Stenographer
Augusta, Feb. 10.
In the Kennebec county superior
court. Wednesday morning, in the case
| OF Jerry DiOnne and Jospeh Albert LIE
rave, charged with the larceny of $711J
| from the person of Michael Burns, pro-
prietor of the Riverside house of Au-
| Susta. the defence was resumed.
Alfred COuvrette, driver of an
| accommodation team, testified that he
| was called to the London house during
| the evening of the 14th day of las.
March, to take Burns to his home, but
| that Burns was not ready to so with
him.
John Corm;er. Jr.. testified that he
met Burns OH the afternoon of the al
legged larceny in the vicinity of Hymen
Chernowsky's dry goods store on
| Water street in Augusta, and that
Burns had been drinking.
Robert Smith was called and test-
! fed that he was present at the Lon
don house on the night at issue, that
| he passed through the dining room
where the larceny was supposed to
have taken place. sometime in the
evening between 7.30 and s O'clock, and
| that at that time there was no crowd
| in the London house or in the vicir-
| ity of the house.
Much to great surprise. Jerry Dionne,
one of the respondents, took the stand
and testified in his own behalf. He
gave q detailed account of his where
abOuts OH the evening of the alleged
larceny and strcnuOusly denied that
he had anything to do with the alleged
stealing of Burns money. and claimed
| that he had always maintained his in
noccnce. DiOnne also claimed that at
! about the time of the alleged larceny
| he heard several boarders go up to the
dining room where Burns was. He
also testified that he had been in Jail
Ii months and this was the first time
that he had given his testimony as lie
/ had been advised by his counsel not to
| do so.
| County Attorney Leigh did not cross
examine the witness.
| After the evidence had all been ad-
duced in behalf of the government and
the defence. lie Fave. through his
| counsel, Lewis A. Burlcigh, Esq. Of
the firm OF Williamson G. BurleiSh of
| Augusta. withdrew his plea of not
guilty and entered a plea of nolo con-
| tendere.
| Court was about to adjourn until
after dinner for the arguments. when
the counsel for Dionnc, Benedict f.
| Malcr. Esq, and George G. Sheldon,
ESQ, of the firm of Sheldon & Saw
| tellc. filed motion to withdraw the
| case from the jury on the ground that
| Charles F. Cobb of Gardiner. the fore
man of the jury. had been irreSularly
drawn. The court set 2 o'clock for
hearing in the matter.
When court convened. counsel for
Dionne introduced several witnesses to
prove that MI Cobb had been Illegally
| drawn, Whereupon the court granted
the motion of the counsel for Dionne.
| Counsel Maher. for Dionne. and
County Attorney Leigh. for the State.
| argued the points of law bearing on
the case.
Judge Hall said:
II am satisfied that the statute has
lot been complied with. 1t reads as
follows: The town clerk or, in his
absence, one of the municipal officers.
shall carry the ballot box into the
Injecting, and it shall there be unlocked
and the tickets mixed by a majority
of said officers present; one of them
shall draw out as many tickets as
there arc jurors required.
"Now it seems that neither the town
clerk nor any municipal officer drew
the juror named from the box. but that
the same was drawn by the city mar
snail The fact that there has been a
great deal of informality in other cases
does not heal the difficulty in this case
| 1T is only after Il test case is made
that municipal officers are little more
careful about their duties in drawing
jurors"
"If the town clerk himself had drawn
the juror in this case, l think it might
possibly and fairly come within the
provisions of the statute, although it
says one of them after mentioning
the municipal officers.
1T has been held that municipal Off
GERS are the mayor and aldermen in
cities and the selcctmen and asses
sors in towns. Nowhere does the
statute specifically include town or
city clerks among municipal officers.
But even if he were municipal officer.
there is no evidence that the clerk
drew the juror in this case
THE statute does not authorize a
city marshal to draw jurors There
fore, reluctantly, am compelled, from
my view OF the statute. to hold that
this juror was illegally drawn. and
that the motion must be sustained"
The case was then withdrawn from
the jury, who were discharged and 90
special jurors were ordered to be sum-
moned for Thursday afternoon. at ,
o'clock, when new trial will begin.