14 Wis. 393 | Wis. | 1861
By the Court,
The plaintiffs in error were indicted at the November term of the circuit court of La Crosse county, 1860, for the crime of larceny. To the indictment they interposed a plea in abatement, alleging in substance that the grand jurors therein named, by whom the indictment was found and returned into court, were not, nor were any of them, at the time they so acted, and at the time the indictment was found and returned, duly and legally qualified to act as grand jurors, in this, that the said grand jurors, or any of them, had not been drawn by the clerk of the county of La Crosse in pursuance of the statutes in such case made and provided. It was also averred that the grand jurors by whom the indictment was found, were not sum. moned by the sheriff pursuant to law; and further that one of the grand jurors, Justin Jacobs, by whom the indictment was found, was never summoned in any manner whatever, but placed himself upon the grand jury at the request of a stranger, such stranger being neither the judge of the circuit
The district attorney moved to strike the plea from the files as a nullity, which motion was sustained, except as to so much of the plea as had reference to the action of Justin Jacobs, one of the grand jurors empannelled .and sworn, in placing himself upon the jury; and as to that part of the plea, an issue of fact was made, which was tried by the court upon the evidence produced, and found against the plaintiffs in error. They then pleaded not guilty to the indictment, were tried and convicted. Motions for a new trial and in arrest of judgment, were made, which were overruled by the court.
Several errors are assigned here to the rulings of the circuit court in disposing of the plea in abatement, and in refusing instructions asked for by the plaintiffs in error, which we will now proceed to notice.
In the first place it is insisted that the circuit court erred in sustaining the motion to strike out a portion of the plea in abatement. No exception is taken to the particular practice adopted in moving to strike the plea from the files as a nullity instead of testing its sufficiency by a demurrer. But it is claimed that the matter stricken out contained a good and sufficient answer in avoidance to the indictment, and was set forth by apt and proper averments. And the question as to the sufficiency of that portion of the plea stricken out has been argued by counsel in the same light as though it had been demurred to, and we will so consider it. At the same time we will state that we deem it to be the better, if not the only correct and proper practice, to demur to a plea in abatement in a criminal case, if it is considered insufficient, rather than to move to strike it from the' files as a nullity. In Rex vs. Grainger, 3 Burrows, 1617, a plea in abatement to an indictment was set aside on motion because it was not verified. Our statute provides that when a plea in abatement or other dilatory plea to an indictment, shall be offered, the court may disregard it or refuse to receive it until the truth thereof shall be proved by affidavit or other evidence. Section 13, chap. 177, R. S., 1858. The plea in this case
In the present case we are of the opinion that the matter stated and relied on in the plea in abatement, which was stricken out by the court, was insufficient. It is, in substance, that the grand jury which found the indictment was not drawn g,nd summoned according to law. But what irregularity intervened in drawing and summoning the grand jury, the plea does not inform us. Whether it was some slight and unimportant departure from the statute in respect to drawing and summoning the grand jury — such an irregularity as could not possibly affect the panel — or whether the officers were guilty of some gross misconduct in selecting the jury, does not appear. Indeed it nowhere appears from the plea how, when and in what manner, the grand jurors
It is further insisted that the circuit- c'ourt incorrectly found the issue against the plaintiffs in err'or, in respect to the grand juror Justin Jacobs, who, ibwas alleged, placed himself voluntarily among the grand jury without being summoned. Upon this point the record shows that after the panel of grand jurors who had béen originally summoned, had been exhausted, and there was not a sufficient number to constitute a grand jury, the court ordered a special venire to be issued for the deficiency, and that after the same had been issued by the clerk, and while the same lay on the table, in the presence of the sheriff, but before it had been actually placed in his hands, the sheriff called the said Justin Jacobs as a member of the grand jury; that afterwards the clerk handed the sheriff the venire, who then indorsed his return thereon and handed the same back to the clerk. In case of a deficiency of grand or petit jury;*- our statute declares that the court may direct the clerk to issue a venire to the sheriff or other officer, to summon a sufficient number
It was claimed and insisted on the part of the attorney general, that objections to the qualifications of grand jurors, or to any irregularity in summoning, selecting or swearing them, could not be raised or considered either by a plea in abatement or motion to quash, after an indictment had once been found and returned and filed in court. There are certainly very respectable authorities which have so decided (Commonwealth vs. Smith, 9 Mass., 104; People vs. Jewett, 3 Wend., 314); but we think these cases are unsound in reason and principle, and that the current of authorities is the other way. 2 Hale’s Pleas of the Crown, 155 ; 2 Hawkins’ Pleas of the Crown, Bk. 2, chap. 25, sections 17 and 18; Commonwealth vs. Parker et al., 2 Pick., 550, 562; State vs. Symonds, 36 Maine, 128 ; McQuillen vs. The State of Mississippi, 8 S. & M., 587; Rawls vs. The State of Mississippi, id., 599. There does not appear to be any conflict of authority upon the position that a person in court against whom an indictment is about to be preferred, may challenge for cause (People vs. Jewett, supra; Hudson vs. The State, 1 Blackf., 317; Ross vs. The State, id., 390; Thayer vs. The People, 2 Doug. (Mich.), 417); and our statute, as if to place the matter beyond doubt, expressly secures that right to the accused. Section 16, chap. 118. And we can see no reason
The objection taken to the refusal of the court to charge the jury “ that tfwadmissions and confessions of the defendants, unsupporf si by other evidence, are insufficient to convict the defeiv íants," has not been relied on here. The evidence is not’returned to this court, and we cannot see the full bearing of such an instruction. We deem it to be erroneous as a proposition of law, and that it was properly refused.'.
On/the motion in arrest of judgment, it was argued and .insisted, and. the same point is relied on in this ccur|, that the indictment was informal and defective for the same offense in and distinct counts.
The judgment of the circuit court is therefore affirmed.