State v. Emery
| Decision Date | 28 December 1886 |
| Citation | 59 Vt. 84,7 A. 129 |
| Court | Vermont Supreme Court |
| Parties | STATE v. EMERY. |
Exceptions from Orange county court, Bo well, J., presiding.
Indictment for arson and burning. Plea in abatement, to which there was general demurrer. Demurrer sustained, plea adjudged insufficient, and the respondent ordered to answer over, to all which the respondent excepted. By order of the court the respondent was arrainged, and pleaded not guilty. A trial by jury was begun, during which one of the jurors was taken sick, and the panel thereupon discharged. The respondent then moved to be discharged for that he had been once in jeopardy. Motion denied, to which the respondent excepted. At the next term a jury trial was had, in which the respondent excepted to the admission and exclusion of certain evidence. Verdict, guilty. The allegations and facts sufficiently appear in the opinion.
E. W. Smith, State's Atty., and S. B. Hebard, for the State.
J. H. Watson and Heath & Willard, for respondent.
ROSS, J. 1. The demurrer to the plea in abatement was properly sustained. The plea is wanting in the necessary certainty for a good plea in abatement, in not alleging several necessary matters. "Though a plea in bar being certain to a common intent is good, every dilatory plea, or in abatement, must be good to every intent." 4 Bac. Abr. 51. The indictment is not referred to nor made a part of the plea; hence the plea must stand or fall upon the allegations therein made. There is nothing in the plea which makes it, with certainty, a plea to this indictment. The offense charged in the indictment, referred to as "said indictment," is not named in the plea. For aught that is alleged, the plea referred to some other indictment pending in the court against the respondent. It is only inferentially that the court can know that it is a plea to this indictment. Again, there is no certain, direct allegation that the objectionable grand juror acted with the panel in finding the indictment. What is alleged on that subject is by way of recital, and insufficient. Landon v. Roberts, 20 Vt. 286.
The allegation that the panel was not legally selected, qualified, and summoned, and did not constitute a legal grand jury, without alleging wherein the illegality consists, presents a conclusion of law supported by no traversable facts, and is wholly insufficient in such a plea. The allegation that Daniel Emery was not one of the "judicious men of the county" is similarly faulty. The allegation that he was "not a citizen nor legal voter of the county" lacks the certainty required in such a plea. It is not alleged of what county he was not a citizen or legal voter. It might be the county of some other state or country. There is too much uncertainty, and too much left to be inferred, in all these particulars to make a good plea in abatement. Then the plea is open to the objection of duplicity, in that it alleges, not with the certainty required in such a plea, but sufficiently to present an issue of fact, the non-citizenship of Daniel Emery, and his relation by consanguinity to the respondent. Non-citizenship would be a legal disqualification of the alleged objectionable grand juror, and so would his alleged relation to the respondent. The respondent contends that the defect of duplicity cannot be taken advantage of by general demurrer to a plea in abatement even. He cites several authorities to support this contention. The question in the authorities cited arose in civil actions, and in no instance on a plea in abatement. The authorities cited sustain the contention that in that class of pleas, at common law, duplicity could be reached by special demurrer only; but in reference to pleas in abatement says Mr. Chitty, in volume 1, p. 465, of his Work on Pleading: "If the plain tiff demur, it is not necessary to assign any special causes." The same was held in Landon v. Roberts, 20 Vt. 286. In speaking of duplicity in pleading, Judge Isaac F. Redfield, in delivering the opinion of the court, on page 288 says: "To correct any misapprehension on the subject, it may be well to say that all defects in abatement may now be reached by general demurrer." In Culver v. Balch, 23 Vt. 618, it is held, without discussion, that duplicity in pleas in abatement may be reached by general demurrer. Whatever the rule at common law, we think it is settled by the decisions in this state that duplicity in pleas in abatement is bad, when encountered by general demurrer. Hence, for various good reasons, the county court sustained the demurrer to the respondent's plea in abatement.
2. After the panel were sworn, and the trial had commenced and proceeded until the respondent's evidence was nearly in, one of the jurors was taken sick, and unable to go on with the trial. The jury thereupon were discharged. The respondent then moved to be discharged from further answering the indictment, for that he has once been put in jeopardy thereon. To the denial of this motion the respondent ...
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Reemsnyder v. State
...S.E.2d 68 (1969); Commonwealth v. Kent, 355 Pa. 146, 49 A.2d 388 (1946); State v. Nelson, 19 R.I. 467, 34 A. 990 (1896); State v. Emery, 59 Vt. 84, 7 A. 129 (1886). See also, Annot. 125 A.L.R. 694 (1940) and S. Schulhofer, Jeopardy and Mistrials, 125 U.Pa.L.Rev. 449 Determination of whether......
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State v. Harold Frotten
...jury legally summoned and constituted. He has not been in jeopardy since no valid judgment has been rendered against him. State v. Emery, 59 Vt. 84, 88, 7 A. 129. trial and judgment upon a fundamentally defective indictment is not a ground upon which to sustain a plea in bar based upon form......
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State v. Frotten.
...jury legally summoned and constituted. He has not been in jeopardy since no valid judgment has been rendered against him. State v. Emery, 59 Vt. 84, 88, 7 A. 129. A trial and judgment upon a fundamentally defective indictment is not a ground upon which to sustain a plea in bar based upon fo......
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