Bradford v. State , 4 W. Va. 763 ( 1870 )

Maxwell, J.

Bradford was indicted in the circuit court of Wetzel county, for selling at retail spirituous liquors without a license, and ivas afterwards convicted of the of-fence charged.

After the indictment was found, and before the defendant pleaded not guilty, he filed a plea in abatement, alleging that Taylor, one of the grand jurors who found the indictment, was not, at the time the indictment was found, a registered voter of the county of Wetzel, and for that reason was not a qualified grand juror. There was a demurrer to the plea, and demurrer sustained and the plea held bad by the court, and this is the cause of error assigned in this court by Bradford.

By the fifth section of the act of November, 1863, p. 109-, acts of 1863, a qualification theretofore unknown to the laws of the State, was prescribed for grand jurors. It was, that they should be persons of known loyalty to the State and the United States, and who had not done certain acts specified in said section. The concluding sentence of said section provides: “No plea in abatement to any indictment shall be allowed for any objection to any grand juror arising under this section.” It is insisted, however, that this section is superseded or repealed by the act of February 19th, 1867, p. 44, acts of 1867, entitled, “An act in relation to juries.”

There are two answers to this position. The first is, that the act of February 19th, 1867, cannot be construed to prescribe a qualification for grand jurors. The next is, that if it could be construed to apply to the qualifications of grand jurors, the qualifications are of the same character as the qualifications prescribed by the act of 1868, and the acts being in pari materia, would have to be construed together as one act. B. and O. Railroad Company v. Wilson, 2 W. Va. Rep., 528.

There is nothing in the act of 1867, if it be held to apply to grand jurors, inconsistent with the concluding sentence of the 5th section of the act of 1868, as before quoted.

The demurrer to the plea in abatement was, therefore, properly sustained, and the judgment complained of will have to be affirmed, with damages and costs to the defen* dant in error.

The other Judges concurred.

Judgment Affirmed.