State v. Martin

• Decision Date: 06 December 1893
• Citation: 38 W.Va. 568,18 S.E. 748
• Parties: STATE v. MARTIN.
• Court: West Virginia Supreme Court

18 S.E. 748

38 W.Va. 568

STATE

v.MARTIN.

Supreme Court of Appeals of West Virginia.

Dec. 6, 1893.

Criminal Law—Trial op Plea in AbatementArrest of Judgment — Disqualification of Grand Juror—Effect of—Amending Return of Summons.

1. An issue to be determined by inspection of the record must be tried by the court, not by a jury.

2. On motion in arrest of judgment, the judgment cannot be arrested except for errors apparent in the record.

3. The incompetency or disqualification of a grand juror is no ground to abate or quash the indictment. Code, c. 157, § 12.

4. The circuit court has control over all proceedings had during the same term, or in the office during the preceding vacation. It may set aside any such proceedings, or correct any mistake therein and make such order concerning the same as may he just. See Code, c. 125, § 60.

5. The sheriff or his deputy will be permitted to amend his return of process, mesne or final, so as to make it conform to the facts.

(Syllabus by the Court.)

Error to circuit court, Taylor county; Joseph T. Hoke, Judge.

G. M. Martin was convicted of selling intoxicating liquors unlawfully, and, a motion in arrest of judgment having been overruled, he brings error. Affirmed.

W. R. D. Dent, for plaintiff in error.

T. S. Riley, Atty. Gen., for the State.

HOLT, J. At the April term, 1892, of the circuit court of Taylor county, the grand jury returned a true bill of an indictment against defendant, Martin, for selling unlawfully spirituous liquors. At the June term, 1892, defendant moved the court to quash the indictment This motion the court properly overruled, the indictment being in proper form. At the April term, when the indictment was found, of the 16 members summoned by the sheriff only 12 were qualified to act. Thereupon, under section 4, c. 157, of the Code, the sheriff was directed to summon 4 others, and, pursuant to the order, he forthwith summoned George M. Whites-carver and three others; Mr. Whitescarver, who acted as foreman, being one of the jury commissioners who selected the list of jurors. The clerk took the list of 16 as returned by the sheriff:, struck out the names of the 4 disqualified grand jurors, and substituted the names of the 4 summoned by the sheriff to take their places. As it stood, it appeared as if those on the corrected list had been summoned by the sheriff before the time. The sheriff, by leave of the court, corrected his return so as to make it correspond with the fact In this there was no error. Stone v. Wilson, 10 Grat 529; Wardsworth v. Miller, 4 Grat. 99. These facts defendant set forth in a plea in abatement, averring that the pretended grand jurors who found the indictment were not selected, drawn, summoned, or...