66 Me. 142 (Me. 1877), State v. Flemming

Citation:66 Me. 142
Opinion Judge:WALTON, J.
Party Name:STATE v. THOMAS E. FLEMMING. 1876.
Attorney:J. Varney, for the defendant F. H. Appleton, on the same side, the sufficiency of the plea in abatement. J. Hutchings, county attorney, for the state L. A. Emery, attorney general Mr. Appleton, in reply.
Judge Panel:APPLETON, C. J., DICKERSON, VIRGIN and PETERS, JJ., concurred.
Case Date:February 15, 1877
Court:Supreme Judicial Court of Maine
 
FREE EXCERPT

Page 142

66 Me. 142 (Me. 1877)

STATE

v.

THOMAS E. FLEMMING.

1876.

Supreme Judicial Court of Maine.

February 15, 1877

ON EXCEPTIONS.

INDICTMENT charging the defendant with being a common seller of intoxicating liquors at Bangor, in the county of Penobscot, on

Page 143

the first day of September, A. D. 1875, and to the time of finding the indictment at the February term, A. D. 1876.

(Signed.) A true bill. Emore C. Smart, Foreman.
The defendant seasonably filed the following plea in abatement:

" STATE OF MAINE.

Penobscot Scilicet: Supreme Judicial Court,
for the State of Maine, and at the February term thereof, in the year of our Lord one thousand eight hundred and seventy-six, for the transaction of criminal business. State of Maine, by indictment against Thomas E. Flemming. And on the sixth day of March in the year of our Lord one thousand eight hundred and seventy-six. And now the said Thomas E. Flemming, in his own proper person, cometh into said court, and having heard the said indictment against him read saith, that the said State of Maine ought not to further prosecute the said indictment against him, the said Thomas E. Flemming, because, he saith, that Emore C. Smart, of Bangor, in said county of Penobscot, who at said February term of said court, did serve and act in finding and returning said indictment into said court, at said February term thereof, as one of the grand jurors by whom said indictment at the said term of said court was found and returned into said court, at said term thereof, which said indictment so as aforesaid found, was returned into said court as aforesaid, on the eleventh day of February, in the year of our Lord one thousand eight hundred and seventy-six, was not, at the time he so served and acted as aforesaid, and at the time said indictment was found and returned as aforesaid, duly and legally qualified to serve as said grand juror, in this: that said Emore C. Smart was drawn as said grand juror, pursuant to and in obedience to a supposed writ of venire facias, which said supposed writ of venire facias, was issued from said court, by Ezra C. Brett, clerk thereof, on the second day of August, in the year of our Lord one thousand eight hundred and seventy-five, and was not at the time it was so issued, nor at the time said Smart was so drawn as said grand juror, under the seal of said court, which said supposed writ of venire facias, with the return thereon, said Thomas E. Flemming, here produces now in court, which said supposed Page 144 writ of venire facias is in words and figures as follows, viz: [Here follows the venire signed by E. C. Brett, clerk.] with return upon said supposed writ of venire facias, in words and figures as follows, to wit: [[[[Here follows the return signed George A. Bolton, constable of Bangor.] Without this that said Smart was drawn as said grand juror, pursuant to any venire, except said supposed writ of venire facias, hereinbefore set forth in this plea. And this the said Thomas E. Flemming is ready to verify. Wherefore the said Thomas E. Flemming prays judgment of said indictment, and that the same may be quashed.
(Signed.) Thomas E. Flemming.
STATE OF MAINE, PENOBSCOT, SS., SUPREME JUDICIAL COURT, February term, in the year of our Lord one thousand eight hundred and seventy six, and for the transaction of criminal business. State of Maine by indictment against Thomas E. Flemming. Personally appeared this sixth day of March in the year of our Lord one thousand eight hundred and seventy-six, the before-named said Thomas E. Flemming, respondent, in said indictment, and made oath that the foregoing plea by him subscribed is true in substance and in fact. Before me, James F. Rawson, Justice of Peace and Quo." To the plea in abatement, the county attorney demurred generally; the defendant joined. The court sustained the demurrer, adjudged the plea in abatement bad, and ordered judgment for the state, ruling that the defendant could not plead over. The defendant alleged exceptions. At the same February term, the grand jury returned a large number of other indictments for violations of the liquor law; and when it was discovered that the venires for the grand jury had been issued without the seal of the court upon them, it was claimed that this defect was fatal to the validity of the indictments; on application, the legislature then in session, passed an act declaring the indictments valid. A motion was also made to have the venires amended by affixing a seal to them. These questions were also submitted to the law court. Page 145 J. Varney, for the defendant, argued the unconstitutionality of the healing act, and F. H. Appleton, on the same side, the sufficiency of the plea in abatement. Mr. Varney, inter alia, said the indictment against the respondent was found February 11, 1876, and on February 22, the legislature on the morning hour of the last day of its session, under a suspension of its rules, after the respondent had been brought to the bar, and without notice to him, and for the purpose of affecting and deciding his case, passed the following act, entitled " an act to make valid the drawing of grand jurors for the county of Penobscot." " SEC. 1. The venires issued for draft of grand jurors to serve at the supreme judicial court, within and for the county of Penobscot, for the year of our Lord eighteen hundred seventy-five and eighteen hundred and seventy-six, are hereby made valid and lawful venires, notwithstanding the same were issued without the seal of the court thereon; and no act or presentment of said grand jurors shall in any wise be invalidated in law by...

To continue reading

FREE SIGN UP