6 A. 867 | R.I. | 1886
The defendant pleads in abatement to the indictment in effect, that Benjamin Hall, Jun., of Portsmouth, in the county of Newport, in the State of Rhode Island, who acted as one of the grand jurors in finding the indictment, was not qualified to act, "for that heretofore, to wit, on the 9th day of August, A.D. 1886, Charles J. Coggeshall and Abner S. Main, both of Portsmouth," etc., were drawn as grand jurors, according to law, for the present term of this court, and notified to attend, and were ready and willing to serve, but said Hall prevented them by presenting himself. The State demurs on the ground that the plea does not show that said Coggeshall and Main were legally drawn as grand jurors. By the recent statute, Pub. Laws R.I. cap. 609, § 1, of June 9, 1886, the present September term of the Supreme Court for Newport County began on the fourth Monday in September last. The statute, Pub. Stat. R.I. cap. 200, § 15, provides that "the town council of each town shall, at a meeting thereof notmore than six weeks previous to each term of the Supreme Court," draw the grand and petit jurors which the town is required to send to the court. If Coggeshall and Main were drawn on the 9th of August they were drawn seven weeks before the term, and consequently were illegally drawn. The fact that the date is laid under a videlicet *417 does not help the defendant, for it is for him to show affirmatively by his plea that the drawing was legal.
Demurrer sustained.
