An objection to the organization of a grand jury, the incompetency or disqualification of its members, and any irregularity in summoning them or of misconduct on the part of the prosecutor in the grand jury room may be raised by a plea in abatement. In case the irregularities have not prejudiced the defendant the plea will be overruled.10 Such a plea must point out specifically the particular objection or defect, on which the defendant relies, 11 and must negative every conclusion in favor of the legality of the drawing and impaneling,12 and must show that the accused was thereby injured.13 A claim of immunity,

because of testimony upon the subject by the defendant before a grand jury, may be raised by a plea in abatement.14

The objection that the defendant's constitutional rights were infringed in the proceedings before the grand jury by the use of his papers seized under a search warrant such as is forbidden by the Constitution, 15 and perhaps the objection that there was no competent evidence then received in the support of the indictment, may be raised by a plea in abatement; 16 but, as a general rule, the competency or relevancy 17 of the evidence upon which an indictment was found will not be examined by the court, either upon a plea in abatement or otherwise; 18 except, perhaps, where the State statute permits such a practice.19 A grand jury is presumed to have acted on legal evidence in returning the indictment, until the accused shows the contrary.20 It is no ground for a plea in abatement that the grand jury secrets have been disclosed.21 By leave of the court two or more pleas in abatement may be filed.22

Pleas in abatement are not favored by the courts,23 and the

clusion, when prejudice does not appear from the record or is not a necessary inference from what occurred. Agnew v. U. S., 165 U. S. 36, 45, 17 S. Ct. 235, 41 L. ed. 624; U. S. v. Greene, 113 Fed. 683, 694; aff'd, Greene v. U. S., C. C. A., 154 Fed. 401; certiorari denied, 207 U. S. 596, 52 L. ed. 357.

14 U. S. v. Swift, 186 Fed. 1002. 15 See U. S. v. Philadelphia & R. Ry. Co., 225 Fed. 301; U. S. v. Silverthorne, 265 Fed. 853; supra, § 515.

16 See U. S. v. Perlman, 247 Fed. 158; Cooper v. U. S., C. C. A., 247 Fed. 45; U. S. v. Silverthorne, 265 Fed. 853; supra, § 515. The absence of other competent evidence besides that objected to should be averred in the plea. U. S. v. Philadelphia & R. Ry. Co., 225 Fed. 301.

17 McKinney v. U. S., C. C. A., 199 Fed. 25; U. S. v. Rintelen, 235 Fed. 787.

Fed. Prac. Vol. III-36

18 U. S. v. Rosenberg, 7 Wall.

580, 19 L. ed. 263; Holt v. U. S., 218 U. S. 245, 247, 54 L. ed. 1021, 1028; Hillman v. U. S., C. C. A., 192 Fed. 264; McKinney v. U. S., 199 Fed. 25; U. S. v. Nevin, 199 Fed. 831. But see U. S. v. Rubin, 218 Fed. 245; supra, § 515.

19 U. S. v. Swift, 186 Fed. 1002, 1018.

20 Ex parte Harlan, 180 Fed. 119.

21 Atwell v. U. S., C. C. A., 17 L. R. A. (N. S.) 1049, 162 Fed. 97; U. S. v. Am. Tobacco Co., 177 Fed. 774.

22 U. S. v. Richardson, 28 Fed. 61. 23 U. S. v. Hammond, 2 Woods, 197, Fed. Cas. No. 15,294; U. S. v. Williams, 1 Dillon, 485, Fed. Cas. No. 16,716; U. S. v. Greene, 113 Fed. 683, 689; aff'd, Greene v. U. S., C. C. A., 154 Fed. 401; certiorari denied, 207 U. S. 596, 52 L. ed. 357; U. S. v. Rockefeller, 221 Fed. 462;

allegations therein must be pleaded with strict exactness.24 Such a plea was held to be bad for uncertainty in the use of the words "within the year then next preceding"; it being material whether the calendar year of the 12 months next preceding was meant.25 An equivocal expression used in the plea in abatement to an indictment is to be taken against the pleader. 26 The plea should negative all matters which could make the act complained of legal.27

A plea was held to be sufficient, which averred that the evidence presented to the grand jury was procured from sources, clues and leads contained in books and papers of defendants which had been unlawfully seized, and that the indictment was procured by information obtained from such books, papers and documents, accompanied by a description of the seizure; and an averment that specified Government employees and attorneys for persons interested in the prosecution, worked over such books. and papers before the indictment, since it was said to be manifestly impossible for the defendants to be more specific or definite as to the nature of the clues and leads.28 A plea averring an unlawful seizure of books in pursuance of a conspiracy between the United States attorney and others, to destroy the business of one of the defendants, and to oppress the others, and to oppress and

U. S. v. Philadelphia & R. Ry. Co., 225 Fed. 301.

24 Agnew v. U. S., 165 U. S. 36, 44, 17 S. Ct. 235, 41 L. ed. 624; U. S. v. Hammond, 2 Woods, 197, Fed. Cas. No. 15,294; U. S. v. Williams, 1 Dillon, 485, Fed. Cas. No. 16,716; U. S. v. Greene, 113 Fed. 683, 689; aff'd, Greene v. U. S., C. C. A., 154 Fed. 401; certiorari denied, 207 U. S. 596, 52 L. ed. 357. 25 U. S. v. Gradwell, 227 Fed. 243; U. S. v. Rintelen, 235 Fed. 787.

26 U. S. v. Scott, 232 Fed. 192. 27 U. S. v. Ambrose, 3 Fed. 283; U. S. v. Rockefeller, 221 Fed. 461; U. S. v. Rintelen, 235 Fed. 787; supra, $510. In U. S. v. Silverthorne, 265 Fed. 859, 864, held: that

a plea in abatement is insufficient which alleged the presence of a stenographer when testimony was taken before the grand jury without averring that such stenographer had not been appointed an attorney to conduct the proceedings as authorized by the Act of June 30, 1906, ch. 3935, 34 St. at L. 816, Comp. St., § 534.

28 U. S. v. Silverthorne, 265 Fed. 859, 862. The plea that the private books and papers of the accused were wrongfully produced before the Grand Jury is insufficient when it fails to show that no other evidence was offered upon which the indictment was found. Hillman v. U. S., C. C. A., 192 Fed. 264.

retain the former's books and papers, was overruled since it did not appear that the grand jury knew of such conspiracy, nor was in any way prejudiced thereby.29

A plea in abatement should be pleaded on or before the arraignment and before pleading not guilty or filing any special pleas in bar.30 An unexcused delay of five days after the return of an indictment was held to be a waiver of such a plea.31 Absence from the district is no excuse for the delay, when the defendants resisted attempts of the government to bring them there.32 The pendency of a demurrer is no excuse for the delay when the defendant has failed to urge the same for a speedy hearing. The court may of its own motion dismiss the plea for laches.34 The right to plead in abatement is waived by filing a plea in bar,36 or by pleading not guilty and going to trial.36 It seems that the court may, in its discretion, allow a plea of not guilty to be withdrawn and a plea in abatement to be filed.37 When the plea in abatement is founded upon objections to the selection or qualification of a grand jury or the proceedings before it, the plea must be filed at the earliest possible moment.38

33

29 U. S. v. Silverthorne, 265 Fed. 855.

30 U. S. v. Gale, 109 U. S. 65, 3 S. Ct. 1, 27 L. ed. 857; Agnew v. U. S., 165 U. S. 36, 17 S. Ct. 235, 41 L. ed. 624.

31 Agnew v. U. S., 165 U. S. 36, 45, 17 S. Ct. 235, 41 L. ed. 624. So was a delay of nineteen days after the filing of the indictment and seventeen days after the return of the defendants to the State. Lowdon v. U. S., C. C. A., 149 Fed. 673; U. S. v. Am. Tobacco Co., 177 Fed. 774. A delay of two months after the indictment was also held to be too late. U. S. v. Greene, 113 Fed. 683, 697; aff'd, Greene v. U. S., C. C. A., 154 Fed. 401; certiorari denied, 207 U. S. 956, 52 L. ed. 357. A delay of one hundred and eight days. U. S. v. Perlman, 247 Fed. 158. A delay of nine months. Moffatt v. U. S., C. C. A., 232 Fed.

522; Younge v. U. S., C. C. A., 242 Fed. 788.

32 U. S. v. Greene, 113 Fed. 683, 697; aff'd, Greene v. U. S., C. C. A., 154 Fed. 401, certiorari denied, 207 U. S. 956, 52 L. ed. 357.

33 Hyde v. U. S., 225 U. S. 347, 373, 56 L. ed. 1114, 1128. 34 Ibid.

35 U. S. v. Gale, 109 U. S. 65, 3 S. Ct. 1, 27 L. ed. 857.

36 Eperson V. State, 5 Lea (Tenn.) 291; State v. Deason, 6 Baxt. (Tenn.) 511; Thompson v. State (Tex. Cr. App. 1901), 62 S. W. 919; 12 Cyc. 357.

37 Post v. U. S., 161 U. S. 583, 40 L. ed. 816.

38 Agnew v. U. S., 165 U. S. 36, 44, 17 S. Ct. 235, 41 L. ed. 624. "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

If the defendant has had the right to raise the objection by challenging the array of the grand jury, after he had notice that a complaint against him was under consideration, it might be held that he could not raise the objection by a plea in abatement.39 One Federal case holds that a plea in abatement alleging a disqualification of a grand juror need not be verified; 40 but, according to the preponderance of authority, every plea in abatement should be verified.41 Averments upon information and belief may be disregarded if the sources of the information or the grounds of belief are not set forth.42 The proper manner of objecting to a plea in abatement is by a demurrer.43 Upon such a demurrer, judgment is rendered against the party who committed the first fault in pleading. The objection that the defense raised by the plea in abatement has been presented to another judge upon a challenge to the array before the indictment is not raised by a demurrer to the plea.45 The issues of fact upon a plea in abatement should be raised by replication.46

the grand jury, he should proceed at once to take exception to its competency; for, if he lies by until a bill is found, 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 a motion to quash or by a plea in abatement; the latter in all cases of contested fact being the proper remedy.'' Ibid. Waller v. U. S., C. C. A., 179 Fed. 810.

39 Agnew v. U. S., 165 Ù. S. 36, 44, 17 S. Ct. 235, 41 L. ed. 624.

40 U. S. v. Hammond, 2 Woods, 197, Fed. Cas. No. 15,294. See State v. Welch, 33 Mo. 33.

41 Rex v. Grainger, 3 Burrows, 1,617; State v. Allen, 91 Me. 258, 39 Atl. 994; Findley v. People, 1 Mich. 234; Commonwealth v. Sayers, 8 Leigh (Va.) 722; 12 Cyc. 356.

42 U. S. v. Bopp, 232 Fed. 177. 43 Rex v. Cooke, 2 B. & C. 618,

4 D. & R. 618, 9 E. C. L. 271; Rex v. Clark, 1 D. & R. 43, 14 E. C. L. 17; Agnew v. U. S., 165 U. S. 36, 17 S. Ct. 235, 41 L. ed. 624; Lowdon v. U. S., C. C. A., 149 Fed. 673; McLeroy v. State, 120 Ala. 274, 25 So. 247; State v. Barrett, 54 Ind. 434; Commonwealth V. Lahnon (Massachusetts), 13 Allen, 563; State v. Emery, 59 Vt. 84, 7 Atl. 129; Commonwealth v. Jackson, 2 Va. Cas. 501; Newman v. State, 14 Wis. 393; 12 Cyc. 360.

44 U. S. v. Lawrence, 13 Blatchf. 295, Fed. Cas. No. 15,573; People v. Krummer, 4 Parker's Cr. Cas. (N. Y.) 217.

45 U. S. v. Philadelphia & R. Ry. Co., 225 Fed. 301.

46 State v. Malia, 79 Me. 540, 11 Atl. 602; Commonwealth v. Dockham, Thach. Cr. Cas. (Mass.) 238; Lewis v. State, 1 Head (Tenn.) 329; Baker v. State, 80 Wis. 416, 50 N. W. 518; Martin v. State, 79 Wis. 165, 48 N. W. 119; 12 Cyc. 360.