State v. Welch, 33 Mo. 33

State v. Welch

33 Mo. 33 | Mo. | 1862

Bates, Judge,

delivered the opinion of the court.

The defendant was indicted for gaming. He at a subsequent term of the court filed a plea in abatement, alleging that the grand jury which found the indictment had not been summoned in the manner provided by law, and setting out the particulars in which the law was departed from. The circuit attorney demurred to the plea in abatement, and the demurrer was sustained. The defendant then pleaded not guilty, was tried, convicted, and fined.

The only question is upon sustaining the demurrer to the plea in abatement.

It is objected here that the plea in abatement was not supported by affidavit, but that is not a ground for demurrer.

The demurrer was properly sustained.

The statute regulating practice in criminal cases (art. 3, § 2, p. 1167) provides for objections to grand jurors being *35made before they are sworn, and section 3, on same page, provides that “ no challenge to the array of grand jurors, or to any person summoned as a grand juror, shall be.allowed in any other cases than such as are specified in the last section.” This plea in abatement is in the nature of a challenge to the array, and is forbidden by the statute. This case is fully covered by the decision in the case • of the State v. Bleckley, 18 Mo. 428.

The other judges concurring,

judgment affirmed.