State v. Drogmond

Adams, Judge, delivered the opinion of the court. The defendant was indicted for selling liquor on Sunday. He filed a plea in abatement,'alleging that several of the grand jurors, during the progress of the court at which the indictment was found, were discharged by the court and others sworn in their places, and that the grand jury after thus being changed and constituted, found this indictment. The State’s attorney demurred to this plea, and the demurrer was sustained. The defendant afterwards pleaded not guilty was tried and convicted. The only matter complained of here, is the action of the court in sustaining the demurrer to the plea in abatement. A plea in abatement is not the proper mode of raising objections to grand jurors. If it were, this plea does not state the grounds, on which the court acted in discharging the jurors and summoning others in their places. Under certain contingencies the court has the right to do this. If a grand juror fails to attend, or is found to be incompetent, after he is qualified, the court may in its discretion cause another juror to be summoned and sworn, (1 Wagn. Stat., 799, § 10.) Objections to jurors must be made before they are sworn. The objection raised by this plea, is to the array, that is to the panel. Such objection cannot be presented by a plea in abatement. (Wagn. Stat;, 797, § 3; Id., 1081, § 3; State vs. Bleekley, 18 Mo., 428; State vs.Welch, 33 Mo., 33; State vs. Connell, 49 Mo., 282.) Let the judgment be affirmed. The other judges concur.