Sistersville daily oil review. [volume] (Sistersville, W. Va.) 1902-1905, 1904-06-29

and that, on the following day,
the accused was permitted to file
two pleas in abatement, alleging
respectively as cause Of abate-
ment, that "the records CT this
Court do not show that any yenire
facias was ever issued for the
drawing, summoning or empanel-
ing of the grand jury which found
the said Indictment" and that
"there was no venire facias au-
thOrizing the drawing, summoning
or empaneling of the grand jury
which found the said Indictment. "
Demurrers to these pleas were
sustained, and then a third plea
setting up the same matter was
rendered but the Court refused to
allow it to be filed. ThereupOn
the prisoner asked leave to with
draw his plea of not guilty and to
file said third plea in abatement,
and offered in support of his mo-
ton the joint affidavit of his at
torneys, showing that at the
time of the rejection of said pleas
in abatement, the plea in bar, al
though entered ore tenus, had not
been extended in the order book.
The affidavit further showed that
the want Of a venire facias had
not been discovered until after
the second entry Of the plea in
bar. This last motion, the afi-
davit and the action of the Court
in over-ruling are shown by a bill
Of exceptions.
Several questions are raised on
these pleas in the brief, but it suf-
fees here to say they were all ten
dered too late. They are dila-
tory in character, such as, under
all the authorities, must be pre-
sented before pleading in bar. Be-
fore any of them were rendered,
there had been a demurrer to the
indictment and then a plea of not
guilty. After these steps it is in
the discretion of the trial court to
refuse to allow the plea in bar to
be withdrawn for the purpose OF
entertaining pleas in abatement,
and the Appellate court will not
interfere with the exercise of
such discretion unless it appears
to have been abusive. pleading
the general issue valves plea in
abatement. But the Court hath
discretion to allow that plea to be
withdrawn and another sustained,
but will not do so III favor of a
merely formal defense" Early V.
Com. sc Va. 921. The matters
sought to be set up in abatement
in that case, after the plea in bar
had been entered, was that the
grand jury had not been summon
ed according to law, and that one
of the grand jurors was not a
qualified juror. So the case is al
most exactly in point. In Curtis
VS.. Com. 81 Va. 5S9, there had
been a conviction and new trial
granted, and then the defendant
moved the Court to quash the In
dictment on the ground that it did
not affirmatively appear from the
record that a venire facias had
been issued to summon the grand
jury which had found the indict-
ment, but the motion was held to
have been interposed too late and
was accordingly over-ruled. Leave
to withdraw the plea of not guilty
was not asked, however, but, in
the other case, Early VS.. Com,
such leave was asked, and refused,
the Court saying on this point:
In the present case we do not see
from the record that this discre-
tion has been improperly exer-
cised." In Reed VS.. Com. SO Va.
s17, the refusal of the trial Court
to allow the withdrawal of the
plea in bar and plead in abate-
ment disqualification of grand ju-
rors was held not to be an abuse
,, of discretionary power. Watson
VS.. Com. 81 Va. GOSSIP says the
want of a venire facias must be
brought to the attention of the
Court before pleading to the mer-
its in order to be effective. Uni
ted States VS.. Gale, 109 .. S. %
holds that can objection to the
qualification of grand jurors, or
+o the mode of summOninp or en-