State v. Waterman

Supreme Court of Vermont

State v. Waterman

62 A. 1016, 78 Vt. 379, 1906 Vt. LEXIS 159

DecidedFebruary 2, 1906

StatusPublished

This text of 62 A. 1016 (State v. Waterman) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Waterman, 62 A. 1016, 78 Vt. 379, 1906 Vt. LEXIS 159 (Vt. 1906).

Pincite

Opinion

RowEMv, C. J.

This is an indictment for murder. The statute provides that “each person drawn by the sheriff or his deputy to serve as grand or petit juror from a town containing more than two hundred inhabitants, shall be disqualified from .again serving as juror for two years from such drawing.” V. S. 1127. Relying on this statute, the prisoner pleads in abatement that Burt L. Blodgett, one of the grand jurors who participated in finding and presenting said indictment, was drawn within two years to serve as a petit juror from the town, •of Remington, which contained more than two> hundred inhabitants. The sufficiency of this plea is challenged by demurrer. It alleges, in substance, as inducement, that on the 12th day ■of March, A. D. 1904, and before the session of the March term, 1904, of the Essex County Court, said Blodgett was drawn and summoned to serve as petit juror at said session of said court, and did then and there attend as such juror, and ■qualified, acted, and served as such through said term; “without this, that said Blodgett was, during said last mentioned session of said court, summoned as a petit juror to serve at ■said session of said court.”

A plea in abatement must not only fully answer what is necessary to be answered, but must also anticipate and exclude .all supposable matter that would, if alleged on the other side, defeat it. Tested by this rule, the plea is bad, because the absque hoc does not perform its office by curing the argumentativeness of the inducement by negating that Blodgett was •drawn as a special or struck juror; for to such a juror, the statute relied upon does not apply. It is not enough to negate that Blodgett was summoned during said session, for a struck jury is toi be summoned before the term, the same as an ordinary petit jury, except talesmen summoned to fill the panel.

The argument that struck jurors are not drawn, but are .selected and listed by the assistant judges and the county [383]*383clerk, acting as commissioners; that there is no such thing in •our law as a special juror; and that therefore it is sufficient to negate that Blodgett was summoned during the term, — is not well founded, for the statute speaks of and regards a struck jury as “drawn,” and calls it a “special jury,” and its individual members “special jurors.” . V. S. 1134, H37-

There are other objections made to this plea, but they need not be considered. The other pleas are waived.

Affirmed and remanded.

Free access — add to your briefcase to read the full text and ask questions with AI

RowEMv, C. J.

This is an indictment for murder. The statute provides that “each person drawn by the sheriff or his deputy to serve as grand or petit juror from a town containing more than two hundred inhabitants, shall be disqualified from .again serving as juror for two years from such drawing.” V. S. 1127. Relying on this statute, the prisoner pleads in abatement that Burt L. Blodgett, one of the grand jurors who participated in finding and presenting said indictment, was drawn within two years to serve as a petit juror from the town, •of Remington, which contained more than two> hundred inhabitants. The sufficiency of this plea is challenged by demurrer. It alleges, in substance, as inducement, that on the 12th day ■of March, A. D. 1904, and before the session of the March term, 1904, of the Essex County Court, said Blodgett was drawn and summoned to serve as petit juror at said session of said court, and did then and there attend as such juror, and ■qualified, acted, and served as such through said term; “without this, that said Blodgett was, during said last mentioned session of said court, summoned as a petit juror to serve at ■said session of said court.”

A plea in abatement must not only fully answer what is necessary to be answered, but must also anticipate and exclude .all supposable matter that would, if alleged on the other side, defeat it. Tested by this rule, the plea is bad, because the absque hoc does not perform its office by curing the argumentativeness of the inducement by negating that Blodgett was •drawn as a special or struck juror; for to such a juror, the statute relied upon does not apply. It is not enough to negate that Blodgett was summoned during said session, for a struck jury is toi be summoned before the term, the same as an ordinary petit jury, except talesmen summoned to fill the panel.

The argument that struck jurors are not drawn, but are .selected and listed by the assistant judges and the county [383]*383clerk, acting as commissioners; that there is no such thing in •our law as a special juror; and that therefore it is sufficient to negate that Blodgett was summoned during the term, — is not well founded, for the statute speaks of and regards a struck jury as “drawn,” and calls it a “special jury,” and its individual members “special jurors.” . V. S. 1134, H37-

There are other objections made to this plea, but they need not be considered. The other pleas are waived.

Affirmed and remanded.

Cite This Page — Counsel Stack

Bluebook (online)

62 A. 1016, 78 Vt. 379, 1906 Vt. LEXIS 159, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-waterman-vt-1906.