State v. WardState v. Ward
- Reporters:
- Before:
- Danrorth
Whеther the plea in abatement in these cases is sufficient in substance, it is unnecessary now to decide, for it is clearly defectivе in form.
The material facts in the plea, stаted in a somewhat objectionable fоrm, are that at the time of the pretendеd drawing of George O. Bachelder, who aсted as juryman in finding the several indictments in question, thе city of Portland had no jury-box which did not contain more than two names for every hundred pеrsons in said city according to the last cеnsus, taken in 1870. Now it is evident that these facts may all be true, and yet the jury-box be legally made up and the juryman legally drawn. The law requires that thе number of names in the jury-box shall be “not less than оne nor more than two for every hundred persons in the town, according to the census tаken next before preparing the box.” But in the plea we nowhere find any allegation that this box was prepared or the juror drawn after the census of 1870. It is, however, said that we must presume that this was so done, because the law requires it. This may be true; but in a plea оf this kind every material fact must be clearly stated, and not be left to inference or presumption. The court will take knowledge of an implication of law, but not of an inferеnce of fact. We might infer in this case that the municipal officers of Portland made up their jury-box at a period of time not more than three years from the census of 1870, and thаt Mr. Batchelder was drawn for the September term of the court holden in 1874. This however would not be a conclusion of law, but only an inference of fact, which might be a mistaken one. In this very case it is claimed that the municipal officers of Portland have neglected a legal duty. Admitting that it is so, what then ? Is it the drawing of a juror from an improper box, or a negleсt to prepare the box at the time fixed by law? We may infer from the facts stated that it is оne of these, but which one is by no means made certain.
*550Admitting that it is certainly one or the other does not help the matter, for it is necessary to know which in order to make the рroper answer.
As this is fatal to the pleа, -it is unnecessary to notice the other оbjections to it suggested by the attorney for the state.
Exceptions overruled.
Judgment for the state.
Appleton, C. J., Walton, Barrows, Virgin and Peters, JJ., concurred.