Melville Fuller

“ One of these rules is that the defendant must take the first opportunity in his power to make the objection. Where he is notified that his case is to be brought before the grand jury, he should proceed at once to take exception to its competency, for if he lies by until a bill is found, the exception may be too late; but where he has had no opportunity of objecting before bill found, then he may take advantage of the objection by motion to quash or by plea in abatement, the latter in all cases of contested fact being the proper remedy. ”

“ That the court erred in giving the following instruction:
'The law presumes that every man intends the legitimate consequence of his own acts. Wrongful acts knowingly or intentionally committed can neither be justified nor excused on the ground of innocent intent. The color of the act determines the complexion of the intent. The intent to injure or defraud is presumed when the unlawful act, which results in loss or injury, is proved to have been knowingly committed. ”

“ Agnew asked him to give him credit for the bonds, $10,000 each time; that in each instance Mr. Agnew stated that 'he would be personally responsible to the bank that these bonds would be all right; he would guaranty the bank both principal and interest; that he would make a written guaranty at any time I would write it out.' Witness further identified a guaranty, dated February 12, 1894, as written by him, and signed by Agnew in his presence, which was read in evidence. ”

“ If of the persons summoned less than sixteen attend, they shall be placed on the grand jury, and the court shall order the marshal to summon, either immediately or for a day fixed, from the body of the district, and not from the bystanders, a sufficient number of persons to complete the grand jury. ”

“ The plea sets up, as ground for abatement of the indictment, that after the original venire had been exhausted without obtaining 16 grand jurors, the court ordered a special venire to issue for 10 grand jurors to be drawn according to law, 'to be taken from the county of Duval; that the clerk and marshal, in drawing said venire, whenever a name was legally drawn from the box, if said party so drawn was not from the county of Duval, laid aside said name, and continued drawing until 10 names from the county of Duval were obtained' ”

“ The point of inquiry was Agnew's actual financial condition, or what he knew, or must be held to have known, or actually and with reason believed, that it was, and his commercial rating was not relevant.
4. That the court erred in allowing the witness McIntyre to be asked, on cross-examination, why he resigned as cashier of the bank in June, 1894, and in permitting him to answer the question. ”

“ People, 80 N. Y. 500; People v. Petrea, 92 N. Y. 128.
The original venire was issued November 18, the second venire issued December 2,1895. The court opened December 3, 1895, and the indictment was returned December 12th, yet defendant did not file his plea in abatement until December 17th. The plea does not allege want of knowledge of threatened prosecution on the part of defendant, nor want of opportunity to present his objection carlier, nor assign any ground why exception was not taken or objection made before ”

“ Section 802 of the Revised Statutes was brought forward from a clause of section 29 of the judiciary act of September 24, 1789, which was regarded by Mr. Justice Curtis as applicable to grand as well as petit juries. U.S. v. Stowell, 2 Curt. 153, Fed. Cas. No. ”