State v. Adair

• Decision Date: 04 April 1922
• Citation: 117 A. 20,31 Del. 558
• Court: Court of General Sessions of Delaware
• Parties: STATE v. ROBERT ADAIR

117 A. 20

31 Del. 558

STATE v. ROBERT ADAIR

Court of General Sessions of Delaware, New Castle County

April 4, 1922

Court of General Sessions for New Castle County, March Term, 1922.

INDICTMENT No. 30, March Term, 1922, under section 4755, Rev. Code 1915 for the misapplication and for the conversion to his own use of certain moneys received by the defendant as an attorney at law.

Argument on motion by the State to dismiss a plea in abatement filed by the defendant to the indictment. Motion granted.

The plea in abatement is as follows:

"And the said defendant comes and defends the wrong and injury when, etc., and prays judgment of the said Indictment of the said plaintiff because he says:

"1. That the said Indictment purports to have been found by the Grand Inquest of the State of Delaware and the body of New Castle County; whereas, the said Grand Jury, to wit, the Grand Inquest of the State of Delaware, etc., as aforesaid which is alleged to have found and returned the said Indictment was not drawn in accordance with the provisions of law generally and particularly was not drawn in accordance with the statutes of Delaware in that behalf made and provided:

"2. That at the time of drawing the said Grand Jury, the Grand Jury box did not contain the names of one hundred sober and judicious persons having the qualification of Grand Jurors under the laws of the State of Delaware:

"3. That at the time of the said drawing of the said Grand Jury the said Grand Jury box contained the names of less than one hundred sober and judicious persons having the qualifications aforesaid:

"4. That at the time of the drawing of the said Grand Jury, there were not more than ninety names of Grand Jurors in the said Grand Jury box having the qualifications aforesaid:

"5. That at the time of the said drawing of the said Grand Jury, as aforesaid, the said Grand Jury box did not contain the names of one hundred citizens of New Castle County who were liable under the provisions of the laws of Delaware to serve as Grand Jurors, in such proportion for each representative district of the said County, as is required by the provisions of the laws aforesaid, in that the said box did not contain the names of any women, citizens of the said County and duly qualified to serve as Grand Jurors and liable under the law to so serve, which said omission of the names of women citizens as aforesaid is discriminatory and illegal:

"6. That at the time of the alleged finding of the said Indictment, one of the said Grand Inquest was an officer of the State and thereby disqualified; the said member being Charles Beith, a member of the Board of Trustees of the Poor in and for New Castle County, Delaware:

"7. That it doth not appear from the said Indictment that twelve, or more, of the members of the said alleged Grand Inquest found the said Indictment:

"8. That counts five and eight of the said Indictment are illegal and void in that it doth not appear from the said Indictment that the said Grand Inquest endeavored to ascertain the names of the said unknown persons and that they could not ascertain them:

"9. That none of the said counts, though in the words of the statute, sufficiently set forth an offense and that the said counts are all illegal and void in that they do not inform the defendant sufficiently of what he is to meet as the accusation of the said plaintiff:

"10. That at the time of the finding of the said alleged Indictment, the Grand Inquest aforesaid, were induced to take action of said finding the said Indictment upon information given to them by one of the Deputy Attorneys-General, to wit, Aaron Finger, Esquire, and not upon evidence presented in accordance with the law in such cases made and provided:

"11. That the said Indictment was found in utter disregard of the defendant's rights to have all the necessary evidence before the said Grand Inquest, the said evidence being in the possession of the State, or within its knowledge at the time of the consideration of the charge by the said Grand Inquest, and illegally withheld from the said Grand Inquest by the State:

"12. That the word 'unlawfully' was illegally interlined in counts numbered, respectively, 1, 2, 3, 4, 5, and 8; and the said word 'unlawfully' was illegally inserted in counts 6 and 7:

"13. That the said counts, one to eight, inclusive, are each and all 'blanket charges' whereas the finding of 'A True Bill' is endorsed on the said Indictment under and as a part of the specific charge 'Violation Code Section 4755,' thereby making an irregular, illegal, and void indictment:

"14. That all of the foregoing grounds of this, the defendant's plea in abatement constitute the finding of an Indictment without due process of law, to the great prejudice of the defendant, and in violation of his rights under the Constitution of the United States of America, Article XIV, of the Amendments thereto, and of the Constitution and Laws of the State of Delaware.

"And this the defendant is ready to verify; wherefore he prays judgment of the said Indictment, as aforesaid, and that the same may be quashed for the reason aforesaid."

The record shows that the defendant was held to bail, March 1st of this year, and indicted by the Grand Jury, March 7th; that he gave notice of his intention to demur to the indictment March 8th and filed the demurrer March 9th; that the demurrer was argued March 13th and overruled March 15th; that a petition in the nature of a motion to quash the indictment was filed March 15th and at the same time, pursuant to his application, the defendant was also given leave to re-argue the demurrer as to counts five and eight of the indictment; that both said demurrer and motion to quash were argued March 16th, at which time this Court adhered to its original decision in overruling the demurrer and also refused to grant the motion to quash, because of the insufficiency of the allegations in said petition; that on the same day the plea in abatement in controversy in this case was filed, and the State made a motion to dismiss it and strike it from the record; that the motion was argued March 21st and the time for filing defendant's brief was fixed for two thirty P. M., March 23d; that pursuant to defendant's application, the time for filing his brief was extended to March 24th at ten A. M.; that the defendant's brief was filed March 24th at one P. M. and that the motion to dismiss and strike the plea in abatement from the record was argued March 24th.

The motion of the State to dimiss is granted.

Aaron Finger and Clarence A. Southerland, Deputy Attorneys-General, for the State.

Robert Adair, the defendant, conducted his own defense.

HARRINGTON J., sitting.

OPINION

HARRINGTON, J.

The motion of the State to dismiss the plea is based on two grounds: First: That the plea was filed too late and that the alleged defects relied on are therefore waived, and, Second: That it failed by proper allegations to show that the defendant was injured by the alleged irregularities relied on; and that it also lacked particularity in other respects.

A plea in abatement being a dilatory plea, which does not finally dispose of the subject matter of the indictment, is not favored by the law. Thompson & Merriam on Juries § 533; U. S. v. American Tobacco Co. (D. C.) 177 F. 774, (780); Ward v. State, 48 Ind. 289; 16 C. J. 411.

Such a plea must be filed, if at all, with the greatest promptness, otherwise the alleged irregularities raised by it will be held to have been waived, and this may be true, when there is delay, even though it be filed before the plea of not guilty be entered. Wharton's Crim. Pro. § 1354; Dietzel v. State, 132 Tenn. 47, 177 S.W. 47, 53; U. S. v. American Tobacco Co. (D. C.) 177 F. 774, 777; Lowdon v. U. S., 149 F. 673, 674, 675, 79 C. C. A. 361; Agnew v. U. S. 165 U.S. 36, 17 S.Ct. 235, 41 L.Ed. 624; State v. Myers, 78 Tenn. (10 Lea.) 717.

This case however, involves not only the question of delay, but also the question as to whether the defendant has followed the proper order of pleading.

In Bishops New Cr. Procedure, vol. 1, § 735, the author says:

"Passing by the motion to quash, it will satisfy the purposes of this Chapter to state the defences substantially in the words of Starkie; namely, 'I. By a plea to the jurisdiction; II. By a declinatory plea (now obsolete); III. By a plea in abatement of the indictment for some defect contained in it; IV. By a demurrer; V. By a plea in bar; VI. By the general plea that he is not guilty.'"

It will be noticed that a plea in abatement, therefore, properly precedes a demurrer.

In section 744, vol. 1, the same author says:

"To be entitled to show a particular matter in defence, he, (the defendant), must tender the plea which the law has provided, in the law's form, and at the law's time."

There is a well established order of pleading in civil proceedings, and when a plea, or other step in the pleadings is overruled, another plea, or step, above it in the established order, cannot ordinarily be pleaded or taken. The rule is otherwise, however, as to any pleading below it.

In Culver, et al. vs. P. B. & W. R. Co., 7 Boyce 76, 78, 102 A. 980, 981, this Court said:

"The law has settled the order of pleadings. This order should generally be pursued. A demurrer to the declaration should not precede a plea in abatement. After a plea in bar to the action, or after a demurrer to the declaration and judgment by the Court on the demurrer, a plea in abatement comes too late."

In this connection it is worthy of comment that pleas in abatement in criminal cases are governed by the same rules of construction that apply in civil cases. O'Connell v. Queen, 11 Cl. & F. (8 Eng. Rep. 1063, 1086).

The rule providing for...