El Paso herald. (El Paso, Tex.) 1901-1931, 1915-04-15

Continued From Page Onel.
| law intended 10 govern. The court sus-
tanned Mr. Clancy's motion.
The Present Court Term
Then on April 8, this year, there be-
gan the term OF court which developed
the grand jury proceedings which were
so spectacular and sensational Two
grand juries, in rapid succession, hay
ing refused to indict, a third one was
empaneled. The third grand jury re-
| turned the Indictment which was so
greatly desired by the court and cOun-
sci representing the state Of New Mex
I leo and Mrs. Bertha ConneH That
term of court was adjourned yesterday
afternoon and in the closing hour OF
the term was filed judge Leahy's rul-
ing, which Will carry the case TO DOna
Ana county for trial
From 9 o'clock in the morning until
after o'clock in the afternoon, counsel
OF opposite sides stubbornly contested
every inch OF the ground Attorney
general Clancy conducted the case for
the state, Herbert B. Holt representing
the defendant Some Of the clauses Of
the plea in abatement interpOsed by
the defence are spirited enough to be
interesting.
CounsePs Objections.
Those clauses pointing out the al
legged errors OF the court are as fol-
THAT the socalled grand jury which
returned the Indictment herein was an
Illegal body, not authorized by law to
investigate the charge against defend
ant or TO return the aforesaid indict-
ment; that the persons composing said
socalled grand jury were not legally Sc
lected, drawn, empaneled, sworn or
charged, and were without authority OF
law 10 act as grand jurors: that the
jury list from which their names were
drawn was invalid and void; that such
list was not a valid list from which TO
select and draw grand jurors to serve
at and during this the April. 1915, term
OF this court; that the court was with
out authority to cause grand and petit
jury venires for the present term OF
this court 10 be drawn from such jury
list; and that the persons serving as
Aforesaid who returned the indictment
herein were and are not eligible 70
serve as grand jurors. and that their
dictment returned by them against de-
fendant is void
That the court likewise erred in IN
structing said socaIled grand jury that
it would be attended by the district at
torney or the attorney general OF New
Mexico. or both, one Of whom would
question the witnesses brought before
them; and in falling 10 instruct that the
district attorney might be present for
their presence whenever required by
them; and in not instructing them that
they might at all reasonable times ask
the advice Of tie court, the attorney
general or the district attorney
1t being apparent that under the
statute. the prosecuting officer has not
the right to appear before a grand
jury for the purpose OF examining the
witnesses unless required by the grand
jury so 10 do; that the attorney gen
eral OF the state is not authorized by
law to appear before a grand jury.
Courts Remarks objected to.
That the remarks by the court at
the time OF the discharge OF the 20
members OF the second socalled grand
jury made publicly in open court were
highly preJudicial TO the rights Of de-
PENDANT and calculated to create in the
minds OF members OF the third socalled
grand jury which returned the indict-
ment herein, the impression that II was
the opinion OF the court that they also
would be derelict in their duty unless
they returned an indictment against
defendant, and. as defendant is in
formed and believes such impression
last named body were unduiy and i'm
properly influenced by such remarks,
which said remarks we're given wide
publicity throughout the county by
reason OF the widespread public dis
cussion thereof and by reason OF the
publication Of same in daily newspa-
pers widely and generally circulated in
ana about the town OF AlamOfa1rdO and
IN the county Of Otero. which newspa-
Ders were published and generally dis
tributed as aforesaid during the DELHI
erations Of said third socalled grand
Jury considering the charge whereof
defendant now stands indicted
Objects to Attorney General.
That as defendant is informed and
believes. and therefore AYERS, the attor-
ney general Of New Mexico was per-
sonally present in the grand jury room
during the Investigation Of the charge I
whereof defendant now stands indicted I
and personally conducted the eXamina-
ton OF the several witnesses who were |
examined before said body concerning
said charge; that the district attorney
was also present during the time when
said charge was under Investigation.
that the presence OF both Of said Off
cials. and especially that OF the attor-
ney general was highly prejudicial to
the rights Of the defendant and ere
ated the impression that il was incum-
bent upon the members Of said body
regardless Of their own judgment, 10
accept and act upon that Of the attor-
ney general and 20 return the indict-
ment herein
says Grand Jury PrejudIeed.
That the prior action OF the court
hereinabove set forth in arbitrarily OF
its own motion discharging 80 former
Of said grand jury and the
comment by the court that the second
socalled grand Jury had failed in its
duty. under the circumstances herein
above detailed, was known to the men,
0ers Of the body which returned the
Indictment herein, and was likewise
highly prejudiciaI TO the rights OF de-
,endant in that il tended to create. and
as defendant is informed and believes,
did create, in the minds OF such persons I
me impression amounting TO conviction
that the court desired them to return
an indictment against defendant and
ielt that in event Of their failure 50
10 do they would be derelict in their (
iuty. and wished them so to under &
stand: that thereby said persons were 3
likewise unduly influenced in the con-
sidcration CT said charge against de- /
'endant, which was also hislly prCjU- I
fetal TO his rights in the premises