State v. Ward

• Decision Date: 29 May 1888
• Citation: 14 A. 187,60 Vt. 142
• Court: Vermont Supreme Court
• Parties: STATE v. WARD.

14 A. 187

60 Vt. 142

STATE

v. WARD.¹

Supreme Court of Vermont. Caledonia.

May 29, 1888.

Exceptions from Caledonia county court; POWERS, Judge.

Indictment for arson. Heard on motion to quash, and demurrer to plea in abatement, filed December term, 1886, at the May term, 1887, Caledonia county; POWERS, J., presiding. Motion overruled, and demurrer sustained. The cause was passed to the supreme court under R. L. Vt. § 1390. The prisoner had not been arraigned at the time the plea and motion were filed. The motion to quash alleged that the indictment was returned at the June term, 1886, by a grand jury not lawfully summoned and not lawfully qualified; that one person, viz., Ruben Ellis, who served in finding and returning the indictment, was not duly summoned and qualified to act; that the court, without authority or legal right, discharged from the panel of jurors one Henry Hoffman, a grand juror then present in court, who was ready and willing to serve, and was legally qualified to act. The court found the facts as stated in the affidavits in support of the motion. By these it appeared that the court discharged said Hoffman, and appointed said Ellis as talesman to serve as grand juror; that said Ellis did serve as grand juror when the indictment was found against respondent; that said Hoffman served as grand juror at the June term, 1884, and that he was summoned, etc., at the June term, 1886, as grand juror, and was willing to serve. The plea alleged, in part: "Because he says that one Reuben Ellis, then and now a resident of the town of Sutton, in said county of Caledonia, did act and serve as one of the grand jurors of said county court in finding and returning said indictment against him, said Thomas Ward, at the said June term, 1886, of Caledonia county court, aforesaid; that the said indictment against him, said Thomas, was found, and returned by the grand jurors of said county, into the county court aforesaid, at its June term, 1886, and was not found or returned into said court at any other term or time of said county court; that at the time when the said Reuben Ellis so acted and served in finding and returning said indictment as aforesaid, into said court as aforesaid, at the term aforesaid, he, said Reuben Ellis, was not duly or legally elected, qualified, impaneled, sworn, or charged as such grand juror for the term aforesaid, and was not then and there duly or legally qualified to act or serve as such grand juror at the term aforesaid, and in the manner aforesaid. And the said Thomas Ward further saith that the said Reuben Ellis did act and serve as such grand juror of said county court, at its June term aforesaid, in finding and returning to the court aforesaid, at the term aforesaid, the said indictment, and that, at the time when the said Reuben Ellis was summoned to appear and act as such grand juror at the term aforesaid, and at the time he did so act and serve as such grand juror in finding and returning said indictment as aforesaid, at the term aforesaid, to the court aforesaid, said Reuben Ellis had not been duly or legally elected to serve as such grand juror as aforesaid, by any town in said county, at the annual town meeting of the several towns, or any town of said county, at their annual March meeting, A. D. 1886; that said Reuben Ellis was, at the time he was summoned, acted, and served as such grand juror, and for a long time prior thereto, to-wit, for ten years, had been, a resident of the said town of Sutton; that at the annual town meeting of the said town of Sutton, held in March, 1886, the members of the board of civil authority of said town then present at such meeting did nominate, as grand jurors of said town for the year next following, the following persons, to-wit, George E. Powers and Corydon Parker, as such grand jurors, and did not choose any other person or persons as such grand jurors than the said George E. Powers and Corydon Parker, and that within five days after said annual town meeting, A. D. 1886, the clerk of said town of Sutton, to-wit, John E. Willard, did return by mail to the clerk of said county court aforesaid, to-wit, Andrew E. Rankin, a certificate of the election of said Powers and said Parker as such grand jurors for the term of one year next after said annual meeting of said town of Sutton; and said Parker and Powers were, at the time they were so chosen by said town of Sutton as aforesaid, at the annual meeting as aforesaid, 1886, and at all times between said meeting aforesaid and July 1, 1886, duly and legally qualified to serve and act as grand jurors for said county court at the term aforesaid; and said Reuben was not, at said annual meeting of said town of Sutton, nor that of any town in said county, at the annual meeting aforesaid, nor that of any other meeting, duly or legally nominated, elected, or chosen as grand juror for said Caledonia county, nor was the name of said Reuben Ellis returned to clerk of said county court by the town clerk of the said town of Sutton, nor by the town clerk of any other town in said county of Caledonia, as the legally elected grand juror of said town of Sutton, or any other town in said county, for the year following the annual town meeting held in March, 1886. And the said Thomas Ward further saith that at the annual town meeting of the legal voters of the town of Wheelock in said county, at its annual town meeting, in March, 1886, the board of civil authority then present did nominate, and the voters of said town did elect, as grand jurors for the year next following, Ferdinand Darling and Henry Hoffman; that said Ferdinand Darling and Henry Hoffman were, at the time of their nomination and election as aforesaid, and at the time of drawing grand jurors by the sheriff of Caledonia county as hereinafter set forth, in May, A. D. 1886, and at the time when said grand jurors met, on the first day of said June term, 1886, duly and legally qualified to act and serve as such grand jurors within and for said county, and were physically able to attend said court as such grand jurors at any and all times during said June term, 1886. And the said Thomas Ward further saith that the judges of said county court aforesaid, in accordance with law, and prior to the said June term, 1886, of said county court, to-wit, on the 1st day of May, 1886, did direct the clerk of said county court, to-wit, said Andrew E. Rankin, that the grand jurors who by law should hear, try, determine, find, and return all criminal matters and indictments to said county court at its said June term, 1886, should be summoned and drawn from the several towns in said county as follows, to-wit: That there should be drawn from the towns of Barnet, one; Burke, one; Danville, one; Groton, one; Hardwick, one; Kirby, one; Lyndon, one; Newark, one; Peacham, one; Ryegate, one; Sheffield, one; Stannard, one; St. Johnsbury, two; Sutton one; Walden, one; Waterford, one; Wheelock, one; or in the entire county-aforesaid eighteen (18) grand jurors were ordered to be summoned and drawn by the sheriff of the county aforesaid to attend as grand jurors at the said June term, 1886, as aforesaid. And the said Thomas Ward saith that all said eighteen men, so to be drawn as aforesaid, were to be such persons as the several towns of said county had elected at their several annual town meetings in year A. D. 1886, and the several town clerks of the said towns had returned to the clerk of said county court as aforesaid. And the said Thomas Ward further saith that, according the direction and order of the said judges of said county court as aforesaid, the sheriff of said county, to-wit, Lorenzo Sulloway, Jr., afterwards, to-wit, on the 11th day of May, 1886, drew from the box prepared for that purpose, at the county clerk's office of said county, at St. Johnsbury, in said county, and from the lists furnished by the several town clerks of the several town aforesaid. * * * And the said Thomas Ward further saith that notwithstanding all said eighteen grand jurrors, so drawn, summoned, impaneled, charged, and sworn as aforesaid, were duly and legally qualified to act and serve as aforesaid as the legal grand jurors for said county court and term aforesaid, the judges of said county court, without the consent or knowledge of this respondent, and after all said eighteen persons had so appeared, been charged, impaneled, and sworn as aforesaid, without authority of law, without legal disqualification on the part of any of the said eighteen persons, without the request of the person so discharged, as hereinafter set out, for the term aforesaid, and without any legal reason or cause, discharged for the term, and sent away from the panel aforesaid, so legally drawn, summoned, and appearing as aforesaid, Henry Hoffman as aforesaid, of said town of Wheelock, who had, at the annual town meeting of said town of Wheelock, been duly nominated by the board of civil authority of said town, and chosen by vote of said town as grand juror for the year next following. * * * And this respondent refers to the indictment aforesaid, and to the venire for grand jury at the June term, 1886, and other records of the said county clerk, and makes the same a part of this plea. Without this, that the said Reuben Ellis was ever drawn, nominated, chosen, summoned, charged, or sworn as grand juror, for the term aforesaid and county aforesaid, in any other manner or way than as above set forth. All this the said Thomas Ward will verify. Wherefore he prays judgment of said indictment, and that the same may be quashed." The other facts are sufficiently stated in the opinion of the court.

Bates & May and Harry Blodgett, for respondent.

The plea was filed by leave of court. Hence, if not filed in season, it is properly before the court. Rupert v. Sandgate, 10 Vt. 280; U. S. v. Gooding, 12 Wheat. 479. Hoffman was not disqualified from serving. Under the act of 1884 the disqualification ends in two years from...