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Full Title
The trials of William S. Smith, and Samuel G. Ogden, for misdemeanours, had in the circuit court of the United States for the New-York District, in July, 1806.
Author
Lloyd, Thomas, 1756-1827.
Date Added
11 January 2014
Language
English
Publish Date
1807
Publisher
New York: I. Riley and Co.
Source
ACHS Historic Papers Lloyd Family.
Topic
Smith, William Stephens, > 1755-1816 > Trials, litigation, etc. Ogden, Samuel G. > (Samuel Gouverneur), > 1779-1860 > Trials, litigation, etc. Venezuela > History > Miranda's Expedition, 1806. United States > Foreign relations > Spain. Spain > Foreign relations > United States.
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OCR
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good, as it can to that which we have offered to the court. But
novelty, only imposes on us the necessity of more accurately in-
vestigating the principles of law, on which we vely ; if our de- -
ductions from them be well founded (and we trust they are) the >
objection of novelty vanishes. —
Along with this objection of novelty may be classed another ;
namely, that supposing the court will interfere in a case like this,
- we have mistaken our application ; and to that was pointed the
attorney general’s, expression, that Dr. Dodd’s case is no prece-
dent for a plea in abatement, To that we answer, Ist, that there
may be more ways than one of appiying to rectify the same error; |
and, 2d. ‘Tinat emphatically the most correct and proper way of
applying to rectify this error, is by a plea in abatement. The
first position may-be “illustrated thus. It is laid down in. Hawk.
Pl. Cr. b. 2. chy 25. § 16, that any. one who is under. a prosecu-
tion for any crime whatsoever, may, bythe common law, before
he: is indicted, challenge any of the persons: returned on the
grand jury,. as beivg outlawed for felony, &c.. or ‘villeins, or re-
turned at the instance of a prosecutor, or not returned by the
proper officer, &c. Here then is a summary mode given to the
accused of objecting to grand jurors, either-by challenging the
array, or challenging the: polls, as the case may require; -but has”
he no other mode? Sir William Whithipole’s case, Cro. Car,
134; and Brooke, in the paragraph already cited from him, tells
~ us, that these objections may be pleaded in abatement ; and Lord
Coxe (3 Inst. 34.) says, “ the safest way, for the party indicted,
- is to plead, upon bis arraignment, the special matter given unto
him by the stat. of 11 Hen. 4. for the overthrow of the indict-
ments, with such averments as are by law required (agreeable to’
the opinion. of lord Brooke, ué¢ sufra) and to plead over to the
felony, and to require counsel learned for the pleading thereof, -
which ought. to be granted, and also to require a copy. of so
much of the indictment as shall be necessary for the framing. of
his plea, which ought also to be granted—and these laws made
for indifferency of indictors, ought to be construed favourably ;
for that the indictment is commonly found ‘in the absence of the |
party, and yet it is the foundation of all the rest of the proceed-
ings.” Here then is a case where an objection to the grand
jury may be taken advantage of either by a challenge to the jury,
or by a plea in abatement, at the option of the defendant. Fur-
ther, cases frequently occur, in Which an indictment is quashed,
on motion for error on the face of it, which might have been the *
subject of demurrer, or of arrest of judgment; but was it ever
‘said in any of these cases, that because you have the first re-
medy, you cannot have the last? On the contrary, summary .
applications on motion, particularly in criminal cases, are com- -
paratively of modern invention ; for the most part introduced for
the ease of the defendant, and to save him from the technical
-nicety of formal pleading ; but they were never intended to de-
prive him of the benefit of such pleading, should he judge fitto -
resort to it.
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