85 W. Va. 289 | W. Va. | 1919
After rejection of his plea in abatement, based on alleged discrimination against him, on account of his race and color, in the selection of the grand jury who returned the indictment against him, the plaintiff in error, was tried on the indictment, 'convicted of murder in the first degree and sentenced to imprisonment in the penitentiary for life, the trial jury having recommended such punishment, in their verdict. By the writ of error awarded him he seeks reversal of the judgment, only on the ground of rejection of his plea in abatement.
If the plea is sufficient in law, the rejection thereof was erroneous and would be cause for reversal, it having been tendered intime. State v. Young, 82 W. Va. 714. To sustain the court’s ruling, certain objections to it in respect of matter of form need not be considered, since we are unanimously of the opinion that it is not sufficiently definite and certain in its averments, which (.1), that the accused is a person of African descent and are;
It erroneously assumes that citizenship and the status of taxpayer qualify male citizens for grand jury membership and duty. -Under the statute something more is required. A grand juror must be a freeholder. Code, ch. 157, sec. 2.
As to whether there are any colored freeholders in the county, the plea is silent, unless the descriptive clause “who are competent and qualified to serve upon a grand jury” amounts to an averment of their existence. It may have been used by the pleader as such, but if is equally apparent that he may have used it by way of averment of a conclusion or necessary deduction from the premises stated. Considered in its entirety, as it must be under the rules of interpretation, the plea seems to say that, because many colored persons in the county are citizens and tax-payers thereof, they are qualified for grand jury service. It undertakes to lay the foundation, or state the premises, of a conclusion, by its averment of facts. It might be argued, on the doctrine of presumption, that the pleader has stated all the facts bat are available or that can be established by proof. If so, an ■ssential element of qualification is lacking. If this be not the rue theory, only one other suggests, itself, namely, failure, by oversight, to aver an existing and provable fact, requisite to the conclusion stated. In either case, the clause referred to pur
Although the sufficiency of a plea of this kind, averring qualification of citizens for jury service in general, but certain and unequivocal, terms, seems not to have been questioned, in several cases in which it has been entertained, it seems to me that it should aver all of the constituent elements of qualification. Under the strict rule of pleading by which it is governed, an in
The plea in abatement having been properly rejected and rejection thereof being the only ground of complaint, the judgment will be affirmed.
Affirmed.