Harrington, J.,
delivering the opinion of the court:
The motion of the State to dismiss the plea is based on two grounds: First: That the plea was filed too late and that the alleged defects relied on are therefore waived, and, Second: That it failed by proper allegations to show that the defendant was injured by the alleged irregularities relied on; and that it also lacked particularity in other respects.
A plea in abatement being a dilatory plea, which does not finally dispose of the subject matter of the indictment, is not favored by the law. Thompson & Merriam on Juries § 533; U. S. v. American Tobacco Co. (D. C.) 177 Fed. 774, (780); Ward v. State, 48 Ind. 289; 16 C. J. 411.
Such a plea must be filed, if at all, with the greatest promptness, otherwise the alleged irregularities raised by it will be held to have been waived, and this may be true, when there is delay, even though it be filed before the plea of not guilty be entered. Wharton’s Crim. Pro. § 1354; Dietzel v. State, 132 Tenn. 47, 177 S. W. 47, 53; U. S. v. American Tobacco Co. (D: C.) 177 Fed. 774, 777; Lowdon v. U. S., 149 Fed. 673, 674, 675, 79 C. C. A. 361; Agnew v. U. S. 165 U. S. 36, 17 Sup. Ct. 235, 41 L. Ed. 624; State v. Myers, 78 Tenn. (10 Lea.) 717.
This case however, involves not only the question oí de[563]*563lay, but also the question as to whether the defendant has followed the proper order of pleading.
In Bishops New Cr. Procedure, vol. 1, § 735, the author says:
“Passing by the motion to quash, it will satisfy the purposes of this Chapter to state the defences substantially in the words of Starkle; namely, ‘I. By a plea to the jurisdiction; II. By a declinatory plea (now obsolete); III. By a plea in abatement of the indictment for some defect contained in it; IV. By a demurrer; V. Byapleainbar; VI. By the general plea that he is notguilty.’”
It will be noticed that a plea in abatement, therefore, properly precedes a demurrer.
In section 744, vol. 1, the same author says:
“To be entitled to show a particular matter in defence, he, (the defendant), must tender the plea which the law has provided, in the law’s form, and at the law's time.”
There is a well established order of pleading in civil proceedings, and when a plea, or other step in the pleadings is overruled, another plea, or step, above it in the established order, cannot ordinarily be pleaded or taken. The rule is otherwise, however, as to any pleading below it.
In Culver, et al. vs. P. B. & W. R. Co., 7 Boyce, 76, 78, 102 Atl. 980, 981, this Court said:
“The law has settled the order of pleadings. This order should generally be pursued. A demurrer to the declaration should not precede a plea in abatement. After a plea in bar to the action, or after a demurrer to the declaration and judgment by the Court on the demurrer, a plea in abatement comes too late.”
In this connection it is worthy of comment that pleas in abatement in criminal cases are governed by the same rules of construction that apply in civil cases. O'Connell v. Queen, 11 Cl. & F. (8 Eng. Rep. 1063, 1086).
The rule providing for a regular order of pleading, of which Culver v. P. B. & W. R. Co. is an example, ismerely an application of the doctrine of waiver, which doctrine prevails alike in civil and criminal jurisprudence. Bishops’ New Crim. Pro. vol. 1, § 746.
The same author, volume 1, § 123, says:
[564]*564“Ordinarily, under a rule of law or of the Court, a dilatory defence must be made at a designated stage of the cause; then, if the party omits to bring it forward when he should, or if he takes an advanced step instead of this one, his right thereto is ended by waiver.”
Lee v. U. S., 156 Fed. 948, 950, 84 C. C. A. 448, is a criminal case applying the above principles.
The facts show that the defendant first moved to quash the indictment, which motion was refused; he next filed a plea in abatement for misnomer, which was demurred to, but the demurrer was overruled. The plea in abatement was then stricken out, on motion of the Government, as coming too late after a motion to quash.
The question was whether the plea was properly stricken out. The Court held that,
“After having challenged the sufficiency of the indictment by motion to quash, it was too late for the defendant tp interpose a plea of misnomer."
While it is undoubtedly true that in order to do justice, courts will often, on application, permit the defendant in criminal cases to withdraw a pleading of one grade and permit the substitution of one of a preceding grade, there is no such application before the Court; and besides, such application is rarely granted in case of a mere dilatory plea. Bishop’s New Cr. Pro. §§ 124 and 747.
It is true that the law as to waiver is also subject to the general rule that while informalities and irregularities may be waived, fundamental steps and allegations which are of the essence of a valid prosecution and judgment may not be. Bishop’s New Cr. Pro. § 123 (3); U. S. v. Gale, 109 U. S. 65, 3 Sup. Ct. 1, 27 L. Ed. 857.
Rodriguez v. U. S., 198 U. S. 156, 25 Sup. Ct. 617, 49 L. Ed. 994, cited by the defendant, while a mere dictum, is a case of this character. The question involved went to the validity of the whole Grand Jury Panel and was raised on a motion in arrest of judgment.
An examination of the record shows that the matters embraced in paragraphs 8, 9, 12 and 13 of the plea were argued and passed on by this Court on the demurrer filed at a previous stage [565]*565of the case, and that the matters embraced in paragraphs 8, 9, 10 and 11 were also included in the previous motion to quash.
The first five paragraphs of the plea clearly relate to alleged irregularities with respect to the drawing of the Grand Jury and allege no facts tending to show that the whole proceeding of forming the jury panel was void.
The seventh paragraph merely alleges that it does not appear that twelve or more members of the Grand Inquest found the indictment, and does not allege that they “failed to find ” it.
The tenth paragraph alleges that the indictment was found upon information given by one of the prosecuting officers" and not upon evidence presented in accordance with the law in such cases made and provided.”
That this alleged defect comes within the class that may be waived by failure to raise the question at the proper time is clear. U. S. v. Kilpatrick (D. C.) 16 Fed. 765, 774; Wharton’s Cr. Pro. vol. 2 (10th Ed.) § 1291.
The eleventh paragraph, if it means to raise any question not covered by paragraph 10, needs no comment.
Free access — add to your briefcase to read the full text and ask questions with AI
Harrington, J.,
delivering the opinion of the court:
The motion of the State to dismiss the plea is based on two grounds: First: That the plea was filed too late and that the alleged defects relied on are therefore waived, and, Second: That it failed by proper allegations to show that the defendant was injured by the alleged irregularities relied on; and that it also lacked particularity in other respects.
A plea in abatement being a dilatory plea, which does not finally dispose of the subject matter of the indictment, is not favored by the law. Thompson & Merriam on Juries § 533; U. S. v. American Tobacco Co. (D. C.) 177 Fed. 774, (780); Ward v. State, 48 Ind. 289; 16 C. J. 411.
Such a plea must be filed, if at all, with the greatest promptness, otherwise the alleged irregularities raised by it will be held to have been waived, and this may be true, when there is delay, even though it be filed before the plea of not guilty be entered. Wharton’s Crim. Pro. § 1354; Dietzel v. State, 132 Tenn. 47, 177 S. W. 47, 53; U. S. v. American Tobacco Co. (D: C.) 177 Fed. 774, 777; Lowdon v. U. S., 149 Fed. 673, 674, 675, 79 C. C. A. 361; Agnew v. U. S. 165 U. S. 36, 17 Sup. Ct. 235, 41 L. Ed. 624; State v. Myers, 78 Tenn. (10 Lea.) 717.
This case however, involves not only the question oí de[563]*563lay, but also the question as to whether the defendant has followed the proper order of pleading.
In Bishops New Cr. Procedure, vol. 1, § 735, the author says:
“Passing by the motion to quash, it will satisfy the purposes of this Chapter to state the defences substantially in the words of Starkle; namely, ‘I. By a plea to the jurisdiction; II. By a declinatory plea (now obsolete); III. By a plea in abatement of the indictment for some defect contained in it; IV. By a demurrer; V. Byapleainbar; VI. By the general plea that he is notguilty.’”
It will be noticed that a plea in abatement, therefore, properly precedes a demurrer.
In section 744, vol. 1, the same author says:
“To be entitled to show a particular matter in defence, he, (the defendant), must tender the plea which the law has provided, in the law’s form, and at the law's time.”
There is a well established order of pleading in civil proceedings, and when a plea, or other step in the pleadings is overruled, another plea, or step, above it in the established order, cannot ordinarily be pleaded or taken. The rule is otherwise, however, as to any pleading below it.
In Culver, et al. vs. P. B. & W. R. Co., 7 Boyce, 76, 78, 102 Atl. 980, 981, this Court said:
“The law has settled the order of pleadings. This order should generally be pursued. A demurrer to the declaration should not precede a plea in abatement. After a plea in bar to the action, or after a demurrer to the declaration and judgment by the Court on the demurrer, a plea in abatement comes too late.”
In this connection it is worthy of comment that pleas in abatement in criminal cases are governed by the same rules of construction that apply in civil cases. O'Connell v. Queen, 11 Cl. & F. (8 Eng. Rep. 1063, 1086).
The rule providing for a regular order of pleading, of which Culver v. P. B. & W. R. Co. is an example, ismerely an application of the doctrine of waiver, which doctrine prevails alike in civil and criminal jurisprudence. Bishops’ New Crim. Pro. vol. 1, § 746.
The same author, volume 1, § 123, says:
[564]*564“Ordinarily, under a rule of law or of the Court, a dilatory defence must be made at a designated stage of the cause; then, if the party omits to bring it forward when he should, or if he takes an advanced step instead of this one, his right thereto is ended by waiver.”
Lee v. U. S., 156 Fed. 948, 950, 84 C. C. A. 448, is a criminal case applying the above principles.
The facts show that the defendant first moved to quash the indictment, which motion was refused; he next filed a plea in abatement for misnomer, which was demurred to, but the demurrer was overruled. The plea in abatement was then stricken out, on motion of the Government, as coming too late after a motion to quash.
The question was whether the plea was properly stricken out. The Court held that,
“After having challenged the sufficiency of the indictment by motion to quash, it was too late for the defendant tp interpose a plea of misnomer."
While it is undoubtedly true that in order to do justice, courts will often, on application, permit the defendant in criminal cases to withdraw a pleading of one grade and permit the substitution of one of a preceding grade, there is no such application before the Court; and besides, such application is rarely granted in case of a mere dilatory plea. Bishop’s New Cr. Pro. §§ 124 and 747.
It is true that the law as to waiver is also subject to the general rule that while informalities and irregularities may be waived, fundamental steps and allegations which are of the essence of a valid prosecution and judgment may not be. Bishop’s New Cr. Pro. § 123 (3); U. S. v. Gale, 109 U. S. 65, 3 Sup. Ct. 1, 27 L. Ed. 857.
Rodriguez v. U. S., 198 U. S. 156, 25 Sup. Ct. 617, 49 L. Ed. 994, cited by the defendant, while a mere dictum, is a case of this character. The question involved went to the validity of the whole Grand Jury Panel and was raised on a motion in arrest of judgment.
An examination of the record shows that the matters embraced in paragraphs 8, 9, 12 and 13 of the plea were argued and passed on by this Court on the demurrer filed at a previous stage [565]*565of the case, and that the matters embraced in paragraphs 8, 9, 10 and 11 were also included in the previous motion to quash.
The first five paragraphs of the plea clearly relate to alleged irregularities with respect to the drawing of the Grand Jury and allege no facts tending to show that the whole proceeding of forming the jury panel was void.
The seventh paragraph merely alleges that it does not appear that twelve or more members of the Grand Inquest found the indictment, and does not allege that they “failed to find ” it.
The tenth paragraph alleges that the indictment was found upon information given by one of the prosecuting officers" and not upon evidence presented in accordance with the law in such cases made and provided.”
That this alleged defect comes within the class that may be waived by failure to raise the question at the proper time is clear. U. S. v. Kilpatrick (D. C.) 16 Fed. 765, 774; Wharton’s Cr. Pro. vol. 2 (10th Ed.) § 1291.
The eleventh paragraph, if it means to raise any question not covered by paragraph 10, needs no comment.
The alleged irregularities, relied on by the defendant in his plea and which could be properly considered under it, are not of such a fundamental character that they would render the whole proceeding void; on the contrary, it is clear that a valid judgment can be entered on any verdict that may be rendered by a jury.
The cases cited by the defendant, therefore, do not support his contention, and for the reasons above given he has waived his right to raise any of the alleged irregularities by a plea in abatement at this stage of the case. The facts relied on in paragraph six of the plea would not only be subject to the same rule of waiver, if they properly alleged that a disqualified person served on the Grand Jury, (U. S. v. Hammond, 2 Woods, [U. S. C. C. 5th Circuit] 197; Kitrol v. The State, 9 Fla. 9, Bishops New Cr. Proc. 856, A (1), and 884, Vol. 1) but this Court knows of no rule of law or statute that disqualifies a county Trustee of the Poor from serving on that body. The other questions raised by the plea merely refer to alleged defects [566]*566appearing on the face of the indictment, the most of which, as above stated, have not only been passed on in previous arguments on the merits but cannot be raised under a plea in abatement. While the alleged defect relied on in paragraph seven was not passed on in any previous argument in this case, it raises no issue of fact and therefore comes within this class and cannot be considered under a plea in abatement.
The plea in abatement is, also, defective by reason of insufficient allegations. Because of its dilatory character it must be pleaded with strict exactness and must set forth the facts relied on as a defence, with great particularity; there being no inferences, whatever, in favor of it. 1 Bishop’s New Cr. Pro. §§ 324 and 745; Wharton’s Cr. Pro. § 1355; O’Connell v. Queen, 11 Clark & Finley, 155-254 (8 Eng. Rep. 1063 [1096]); Thompson & Merriam on Juries, § 535; Ward v. State, 48 Ind. 289; Dolan v. People, 64 N. Y. 485, 492.
Such a plea must exclude by proper allegations and averments every legal intendment or conclusion that might otherwise be made against it by the Court. Chairs v. State, 124 Tenn. 630, 139 S. W. 711, 714.
In O’Connell v. Queen, above cited, the Court said:
“It appears to be sufficient to say that the law requires a plea in abate-" ment which is a dilatory plea to be pleaded with certainty, * * * or as it is expressed, * * *‘with precise and strict exactness’ or as it is laid down in Chetham v. Sleigh (1 Lev. 57) it ought to be ‘certain to every intent’; and as this is the rule in a civil action, at least the same degree of precision and strict exactness is necessary in a plea of abatement to any proceeding at the suit of the crown.”
In Dolan v. People, above cited, certain alleged defects in the drawing of the Grand Jury were relied on by the defendant.
The Court said,
“The plea contains no allegation of any corruption, dishonesty or unfairness on the part of any of the officers in selecting or drawing the Grand Jurors, or of any design to injure the defendant or any other person * * * . It is not apparent how the alleged irregularities harmed the defendant. It is certain that they had no relation whatever to the question of his guilt or innocence of the crime charged. Under such circumstances the indictment should be upheld, unless the facts pleaded point out some vital error. A plea in abatement is a dilatory plea, and it is a general rule that it must be strictly construed. The greatest accuracy and precision are required in framing it, and it must be certain to every intent.”
[567]*567U. S. v. Tollman, 10 Blatchf. 21, 26, Fed. Cas. No. 16,429, which was a motion to quash, is to the same effect.
This Court in State v. Roberts, 2 Boyce, 141, 78 Atl. 305, in refusing to quash an indictment on the alleged ground that it was found entirely on hearsay testimony, called attention to the fact that there was no averment of “any fraud or corruption on the part of the Grand Jury.”
It is true that a motion to quash and not a plea in abatement was passed on in that case, but it shows that good reasons must be alleged in this State before the finding of a Grand Jury will be questioned. The conclusion of the Court is not only consistent with the principles laid down in Dolan v. People, where a plea in abatement was involved, but also with U. S. v. Tollman, where the question was raised on a motion to quash.
The plea in this case alleges that the indictment was “to the great prejudice of the defendant” but fails to allege how the defendant was injured or prejudiced by the alleged irregularity set forth. This is fatal. Agnew v. U. S., 165 U. S. 36, 17 Sup. Ct. 235, 41 L. Ed. 624; Lowdon v. U. S., 149 Fed. 673, 674, 675, 79 C. C. A. 361; U. S. v. American Tobacco Co. (D. C.) 177 Fed. 774, 778.
In fact it absolutely fails to meet any of the requirements as to particularity referred to above. So far as the action of the Grand Jury is concerned, it fails to allege any dishonesty, unfairness, fraud, corruption or design to injure the defendant. It also leaves the injuries suffered by the defendant because of the alleged irregularities, to inference. It is, therefore, insufficient, and the motion of the State to dimiss it is granted.