State v. Ward

64 Me. 545

• Court: Supreme Judicial Court of Maine
• Decided: July 1, 1875
• Status: Published

Opinion

Danrorth, J.

Whether the plea in abatement in these cases is sufficient in substance, it is unnecessary now to decide, for it is clearly defective in form.

The material facts in the plea, stated in a somewhat objectionable form, are that at the time of the pretended drawing of George O. Bachelder, who acted as juryman in finding the several indictments in question, the city of Portland had no jury-box which did not contain more than two names for every hundred persons in said city according to the last census, taken in 1870. Now it is evident that these facts may all be true, and yet the jury-box be legally made up and the juryman legally drawn. The law requires that the number of names in the jury-box shall be “not less than one nor more than two for every hundred persons in the town, according to the census taken next before preparing the box.” But in the plea we nowhere find any allegation that this box was prepared or the juror drawn after the census of 1870. It is, however, said that we must presume that this was so done, because the law requires it. This may be true; but in a plea of this kind every material fact must be clearly stated, and not be left to inference or presumption. The court will take knowledge of an implication of law, but not of an inference of fact. We might infer in this case that the municipal officers of Portland made up their jury-box at a period of time not more than three years from the census of 1870, and that Mr. Batchelder was drawn for the September term of the court holden in 1874. This however would not be a conclusion of law, but only an inference of fact, which might be a mistaken one. In this very case it is claimed that the municipal officers of Portland have neglected a legal duty. Admitting that it is so, what then ? Is it the drawing of a juror from an improper box, or a neglect to prepare the box at the time fixed by law? We may infer from the facts stated that it is one of these, but which one is by no means made certain.

Admitting that it is certainly one or the other does not help the matter, for it is necessary to know which in order to make the proper answer.

As this is fatal to the plea, -it is unnecessary to notice the other objections to it suggested by the attorney for the state.

Exceptions overruled.

Judgment for the state.

Appleton, C. J., Walton, Barrows, Virgin and Peters, JJ., concurred.