State v. Bleekley
| Decision Date | 31 July 1853 |
| Citation | 18 Mo. 428 |
| Parties | THE STATE, Respondent, v. BLEEKLEY, Appellant. |
| Court | Missouri Supreme Court |
1. The illegal manner of summoning a grand jury is no ground for a plea in abatement to an indictment, nor would it, under our statute, be any ground for a challenge to the array.
Appeal from Holt Circuit Court.
Vories and Hudgens, for appellant.
Gardenhire, (attorney general,) for the State.
The defendant was indicted at the October term, 1852, of the Circuit Court for Holt county, for permitting a gambling device to be set up and used in a building of which he had the possession and control, and permitting persons to bet money and property on games of chance played thereon.
At the April term of said court, in the following year, the defendant appeared and filed his plea in abatement to the said indictment, which alleged, that the grand jury which found and presented the said indictment, had not been summoned and selected and chosen to perform the duties of grand jurors, according to the statute of this state regulating the selecting and impaneling grand jurors for Holt county, and specifying the omissions in such selecting and impaneling. The circuit attorney demurred to the plea of the defendant. The court sustained the demurrer. The defendant afterwards filed his plea of not guilty, a jury was had, and a verdict of guilty and judgment thereon rendered against the defendant. The defendant afterwards made his motions for a new trial and in arrest of judgment, which were overruled, and he brings the case here by appeal.
1. The principal matter relied on by the appellant's counsel for the reversal of the judgment below, is the ruling of the court in sustaining the demurrer to the defendant's plea in abatement.
The legislature, at their session of 1850 and '51, passed “an act to provide for a uniform jury law, and to provide for the payment of jurors.” This act was made to embrace a part of the counties only of the state--did not extend over the entire state; among the counties over which this act extended, is the county of Holt. This act requires the Circuit Court, at the several terms to appoint three commissioners, who shall select, at the term at which they are appointed, the names of one hundred persons, free from legal exceptions, of fair character, of approved integrity, of sound judgment, and well informed, to serve as jurors; the names of these persons were to be written on pieces of paper and folded up as nearly alike as possible, put in a box and the commissioners to shake the box and draw out the slips of paper, one by one, and keep a list of the names thus drawn, in the order drawn. The commissioners are to certify this list of names to the court, properly sealed up, and the court to deliver the list to the clerk, and swear the clerk and his deputies not to open the envelope enclosing the list of names, except at the time prescribed by said act. This time is declared to be within thirty days of the next term, and not before. The clerk shall then make out a list of the first forty names, not to include the name of a person who has died, (if any,) since the list was made by the commissioners, or one who has become insane, or moved out of the county; and shall forth with deliver the list to the sheriff, who shall, at least three days previous to the term, summons said persons to attend as jurors; from the list so summoned a grand jury shall be selected.
It appears that the grand jury which was selected and impaneled at the term of the court at which this indictment was found, had not been selected under the provisions of the above mentioned act, but was selected according to the general law regulating grand jurors, (R. C. 1845, Practice and Proceedings in Criminal Cases, art. 3, p. 863,) and this failure thus to select them, is relied upon by the defendant, in his plea, to abate this indictment.
Without taking any notice of this subject, under the practice at the common law in...
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State v. King
...and requiring all challenges to be presented theretofore. But the courts applied the statute with great strictness. It was held in the Bleekley case, supra, and in State v. 33 Mo. 33, decided in 1862, that challenges to a grand juror can be made only for the causes stated in the statute; an......
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State v. Richetti
...individual members of the grand jury can be made only by the persons, within the time, and for the reasons specified therein. [State v. Bleekley, 18 Mo. 428, 431; State Welch, 33 Mo. 33; State v. Connell, 49 Mo. 282, 287; State v. Sartino, 216 Mo. 408, 416, 115 S.W. 1015, 1017; State v. Was......
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The State v. Adams
... ... Statutes 1919, as furnishing a basis for the above ... assignment. The above sections have been held to be directory ... only, and on the facts disclosed in this record would not ... warrant this court in granting a new trial. [ State v ... Bleekley, 18 Mo. 428; State v. Pitts, 58 Mo ... 556; State v. Breen, 59 Mo. 413; State v ... Ward, 74 Mo. 253; State v. Gleason, 88 Mo. 582; ... State v. Matthews, 88 Mo. 121; State v ... Jennings, 98 Mo. l. c. 497, 11 S.W. 980; State v ... Albright, 144 Mo. 638, 46 S.W. 620; State ... ...
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State v. King
...3515, have been a part of our criminal code from the beginning, Revised Statutes 1835, sections 2 and 3, page 79. It is said in State v. Bleekley, 18 Mo. 428, 430, decided in 1853, that in early days many convictions were overturned in this State because of some disqualification of jurors d......