State v. Mellor

Citation13 R.I. 666
PartiesSTATE v. WILLIAM MELLOR.
Decision Date09 June 1882
CourtUnited States State Supreme Court of Rhode Island

The defendant pleaded in abatement to an indictment:

1. That one of the grand jury was not a drawn juror.

2. That one of the grand jury was not notified six days before the sitting of the court.

3. That the notification to one of the grand jury was not returned to the clerk of the court three days before the court opened.

4. That the notification to one of the grand jury did not bear the seal of the town council.

Held, that these pleas were all bad, the statutory provisions on which they were based being not intended for the benefit of the defendant, and therefore not available for his defence.

At the trial of an indictment for the illegal sale of liquors the presiding justice, in connection with evidence tending to show a keeping and selling of liquors, admitted testimony that the defendant had taken out a license from the United States government to sell intoxicating liquors.

Held, no error.

A statute provided that " evidence of the sale, or keeping of intoxicating liquors for sale, in any building, place, or tenement, shall be evidence that the sale or keeping is illegal, and that such premises are nuisances."

Held, that this statutory provision was constitutional and valid.

EXCEPTIONS to the Court of Common Pleas.

This case was an indictment found in the Court of Common Pleas for the maintenance of a common nuisance, to wit, a grogshop and place used for the illegal sale of intoxicating liquor. The defendant filed four pleas in abatement, to which the plaintiff demurred, and the demurrer was sustained, whereupon the defendant excepted. At the trial before the jury the defendant excepted to certain rulings of the presiding justice, and to certain portions of his charge, all of which, together with the pleas overruled, are sufficiently set forth in the opinion of the court.

Samuel P. Colt, Attorney General, for plaintiff.

Charles E. Gorman, John M. Brennan, & Patrick H. Mulholland, for defendant.

DURFEE C. J.

The pleas in abatement assign four reasons for abating the indictment, to wit: first, one of the jury by which the indictment was found was not a drawn juror second, another juror was not notified six days before the sitting of the court; third, the notification to said juror was not returned to the clerk three days before the opening of the court; fourth, the notification to another juror was not under the seal of the town council. We do not think that any of the reasons can avail. As to the first, the statute expressly provides that " the Supreme Court and Court of Common Pleas, in term time, may issue writs of venire for additional jurors whenever it shall be found necessary for the convenient dispatch of their business; " and, in practice, this provision has always been held, and we think, correctly held, to authorize the taking up on venire of grand as well as petit jurors. The second and fourth reasons are founded on defects in the notification, directed by Pub. Stat. R.I. cap. 200, §§ 21 and 22. The object of the notification is to secure the attendance of jurors at court. If the jurors are qualified to serve and have been duly drawn, and appear to perform the service for which they were drawn, we do not see how it can make any difference to persons who are indicted whether the notification, in compliance with which they appear, is defective or without defect. We are of the opinion that the statutory directions in regard to the authentication and service of the notification were designed solely for the benefit of the jurors; and that, therefore, if the jurors see fit to attend in response to a notification which has...

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21 cases
  • United States v. West Coast News Company, Crim. No. 6615.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • April 19, 1963
    ...States v. Reed, 2 Blatchford, 435, 456 Fed.Cas.No.16,134); United States v. Tallman, 10 Blatchford, 21, 51 Fed.Cas.No.16,429; State v. Mellor, 13 R.I. 666; Cox v. People, 80 N.Y. 500; People v. Petrea, 92 N.Y. "The original venire was issued November 18, the second venire issued December 2,......
  • United States v. Lehigh Valley R. Co.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
    • August 19, 1930
    ...States v. Reed, 2 Blatchford, 435, 456, Fed. Cas. No. 16,134; United States v. Tallman, 10 Blatchford, 21, Fed. Cas. No. 16,429; State v. Mellor, 13 R. I. 666; Cox v. People, 80 N. Y. 500; People v. Petrea, 92 N. Y. 128; * * * and, moreover, the plea is fatally defective in that, although i......
  • State v. Muldoon
    • United States
    • United States State Supreme Court of Rhode Island
    • June 18, 1941
    ...a plea in abatement and will be quashed. The seriousness of a defect in the constitution of a grand jury was again recognized in State v. Mellor, 13 R.I. 666. In that case the objection was to the form of the notification to the grand juror. The court, while holding that error merely in the......
  • State v. Tutalo
    • United States
    • United States State Supreme Court of Rhode Island
    • December 8, 1964
    ...Collins, 63 N.J.L. 316, 43 A. 896. Our own decisions, while not lending unqualified support to the rule we adopt, do so impliedly. State v. Mellor, 13 R.I. 666; State v. Higgins, 13 R.I. 330. The majority view rests on two settled principles. The first is the unquestioned legislative author......
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