Jillard v. Commonwealth

The opinion of the court was delivered by Woodward, J. The defendant pleaded specially to the indictment that certain witnesses had been sworn and examined by the foreman of the grand jury whose names the district attorney had not marked upon the indictment, to which plea the Commonwealth demurred, and judgment was thereupon rendered that the defendant plead over. The irregularity of the grand jury was not pleadable in bar of the indictment. At most it was ground only for a motion to quash. If pleadable, it was traversable, and it would be a novelty in criminal trials to set a traverse jury summoned -only to try the accused, to inquiring whether the indictment had been found with a due regard to prescribed forms. The judgment on the demurrer was right. [171] The defendant then pleaded the general issue, and was convicted and sentenced; and it is now objected to the record that the indictment is void by reason of duplicity in charging several offences in one count. The 2d section of the Act of 14th April, 1855, on which the indictment is framed, defines two offences, and the indictment charges one of them. That the words “give” and “given,” employed by the statute in defining the offence not laid, are found in the indictment, is of no moment, for if they be construed to mean a delivery of the liquor sold, which they may he without violence to language, they become appropriate terms in defining the offence intended to be charged. Appropriate or superfluous, however, they do not produce duplicity, for the gift of liquor to be an offence must be in “ connexion with some other business or profitable employment,” and this is not laid in the indictment. The offence charged is a sale and delivery of liquors without license, and that is a single and well defined charge. Perceiving no error in the record, the judgment is affirmed.