United States v. Louisville & N.R. Co.

• Decision Date: 14 March 1910
• Parties: UNITED STATES v. LOUISVILLE & N.R. CO.
• Court: U.S. District Court — Western District of Kentucky

177 F. 780

UNITED STATES v. LOUISVILLE & N.R. CO.

United States District Court, W.D. Kentucky.

March 14, 1910

George Du Relle, Dist. Atty., for the United States.

Henry L. Stone and W. G. Dearing, for defendant.

EVANS District Judge.

The indictment in this case was returned by the grand jury on December 2, 1909, and the process issued thereon was executed on January 24, 1910. Two pleas in abatement were filed on March 10, 1910, the first of which is in this language, viz.:

'Now comes the defendant, Louisville & Nashville Railroad Company, and offers herein its plea in abatement of the indictment herein and each count thereof upon the following grounds, to wit:

'The grand jurors that found the indictment herein were not impaneled and sworn, and did not return the indictment herein at or during either a regular or special term of this court at Louisville, but were impaneled and sworn and found the indictment herein when this court was not in session, or holding either a regular or special term as provided by law. The regular terms of this court, by 'An act to divide Kentucky into two judicial districts,' approved February 12, 1901, shall be held at the following times and places, namely: At Louisville beginning on the second Monday in March and the second Monday in October in each year; at Owensboro, beginning on the fourth Monday in November and the first Monday in May in each year; at Paducah, beginning on the third Monday in April and the third Monday in November in each year; and at Bowling Green, beginning on the third Monday in May and the second Monday in December in each year. The regular term of this court at Louisville was convened by the honorable district judge thereof on the second Monday in October, to wit October 11, 1909, and there continued in session by him until November 12, 1909, when the last order at that term was entered. The regular term of this court at Paducah was convened by the honorable district judge thereof on the third Monday in November, to wit, November 15, 1909, and there continued in session by him until November 17, 1909, when the last order at that term was entered. The regular term of this court at Owensboro was convened by the honorable district judge thereof on the fourth Monday in November, to wit, November 22, 1909, and there continued in session by him until November 23, 1909,

when the last order at that term was entered. «

After the convening of the regular term of this court at Louisville on October 11, 1909, and prior to the convening of the regular term of this court at Paducah on November 15, 1909, no order of adjournment of the said regular October term of this court at Louisville was made or entered adjourning that term of court over to any time or future day, and the said regular October term of this court at Louisville, without such order of adjournment, thereby stood adjourned sine die, upon the convening of the said regular term of this court at Paducah on November 15, 1909. The honorable district judge of this district on November 19, 1909, upon the request of the district attorney of this district, ordered the clerk and the jury commissioner to draw the names of, and the marshal to summon, twenty-five men having the qualifications prescribed by law to appear in this court on November 29, 1909, to serve as grand jurors. Afterward, on November 26, 1909, the honorable district judge of this district made a like order for twenty additional men to be summoned to appear in this court on the last-mentioned date to serve as grand jurors. But, notwithstanding the regular October term, 1909, of this court at Louisville stood adjourned sine die, by reason of the facts hereinabove stated, and no special term of this court at Louisville to be convened or held on November 29, 1909, had been ordered or called by the honorable district judge thereof, and no notice thereof had been prescribed by him or been given therefor, sixteen men out of the number ordered to be summoned as aforesaid were on November 29, 1909, when this court was not in session at either a regular or special term, as provided by law, but in vacation, impaneled and sworn as a grand jury at Louisville, and thereafter, on December 2, 1909, when this court was in vacation and not in session, either at a regular or special term, as provided by law, found and returned the indictment herein against this defendant not in open court. Wherefore, the defendant prays that the indictment herein and each count thereof be abated, quashed, and held as void.'

A demurrer to this plea was overruled, mainly because it was stated in the plea that 'the grand jurors that found the indictment herein were not impaneled and sworn and did not return the indictment herein at or during either a regular or special term of this court at Louisville, but were impaneled and sworn and found the indictment herein when this court was not in session, or holding either a regular or special term as provided by law,' and because it is intimated in the plea that the court at Louisville stood adjourned sine die at the time, and that no special term had been called according to law.

Issues being made upon the allegations of this plea, the court heard the testimony offered, and finds the facts to be that the grand jurors who returned the indictment were impaneled and sworn at and during a regular term of this court, to wit, at the regular term of this court which begun on the second Monday in October, 1909, that said grand jurors returned said indictment at and during said term of said court while it was in session at Louisville, and that said grand jurors were not impaneled or sworn when this court was not in session holding its regular term here, and that the said grand jurors did not return said indictment when this court was not in session nor when it was not holding a regular term at Louisville, as provided by law. And the court further finds the facts to be that this court had not adjourned sine die or for the term either at the ordering, impaneling, or swearing of said grand jurors nor at the time the indictment was found. The court finds that otherwise the facts are accurately stated in said plea, except that the last orders of the respective terms held at Paducah and Owensboro were not entered respectively on November 12th and 23d. The statements to that effect made in the plea are found not to be true.

The judge, judicially and otherwise, abundantly knows that this court, namely, the district court, is continuously in session from day to day all the year round, with few exceptions on holidays, occasional vacations, and absences at other places. He particularly knows that such has been the fact during the present term, which begun according to law in Louisville on the second Monday in October last, that being the 11th day of the month. Of course, on the third Monday in November, 1909 as provided by law, a term was opened at Paducah, on the fourth Monday in November, 1909, a term was opened at Owensboro, and, though it is not important in this case, on the second Monday in December, 1909, a term was opened at Bowling Green, and for...