the party was suspected, is totally groundless, in which cases only it is lawful to discharge him without bail. Hawk. P. C. B. 2, c. 15. If upon this enquiry it manifestly appears, either that no crime was committed, or that the suspicion entertained of the prisoner is wholly groundless, in such cases only it is lawful totally to discharge him. Black. Com. B. 4, c. 22. "I certainly should not require that proof which would be necessary to convict the person to be committed, on a trial in chief; nor should I even require that which should absolutely convince my own mind of the guilt of the accused but I ought to require, and I should require, that probable cause be shewn; and I understand probable cause to be, a case made out by proof furnishing good reason to believe that the crime alleged has been committed by the person charged with having committed it." Pr. C. J. Marshall, Burr's T. 1 vol. p. 11; and see the remarks of Mr. Dickinson, in his practical exposition of the duties, &c., of a justice of peace, vol. 1, p. 627, 2d ed. London; ex parte Taylor, 5 Cowen, 39-63; and Bayley, Ĵ., in Cox et al. v. Coleridge, 1 B. & C. 37.

“I think a magistrate is clearly bound, in the exercise of a sound discretion, not to commit any one, unless a prima facie case is made out against him by witnesses entitled to a reasonable degree of credit."

If by some reasonable occasion the justice cannot forthwith examine the prisoner, or cannot, from the evidence attending the charge, satisfy himself as to the correct course to be adopted, he may authorize the constable, or any other person to detain the prisoner in custody, for a reasonable timethree days. Cro. Eliz. 829, 1 Hale, 585, 2 Hale, 120. "There can be no doubt but that a magistrate may commit for farther examination, because it is not always that the witnesses can be brought forward in the first instance, but the further and absolute commitment must be in a reasonable time. A magistrate ought, as speedily as possible, to make all enquiry," &c. Parke, J. Monmth. Ass. 1823; and Smith's case, 5 Cowen, 273. On charges of felony a magistrate has power to commit for re-examination for a reasonable time. What is a reasonable time, will greatly depend on the circumstances of each case,-fifteen days is an unreasonable time, unless there be circumstances to account for it, and those circumstances it will be incumbent on the magistrate to shew. Davis v. Capper, esq., 4 C. & P. 134, and the authorities there cited and reported; 10 B. & C. 28, S. C.; and ex parte Krans et al. 1 Barn. & Cress. 258.

For the duty of a justice, in taking infor

mations, see Cohen v. Morgan, 6 Dow. & Ry. 8, and the nature of the oath, as to certainty, &c., see Elsee v. Smith, 2 Chitty's R. 304; and I Dow. & Ry. 97, S. C.

Quary-Whether a justice of the peace has jurisdiction to commit to prison a person who refuses to be examined on oath and give evidence as a witness, even in a case where there is a specific charge of an offence depending before the justice, and of which he has legal cognizance. Cropper v. Horton, esq., 8 Dowl. & Ry. 166; 16 Eng. C. Law R. 342; see The Comth. v. Jones, 1 Virg. Cas. 270.

Gross ignorance, &c., will subject a justice to punishment, though there be no corrupt motive or personal animosity against the party injured by his acts. See The King v. Constable, esq., 7 D. & R. 663.

(3) If the witnesses refuse to enter into recognizance to appear &c. the justice may commit them. The act requires that the witnesses shall be forthcoming, and it is a lenient mode, which the act provides to permit the witnesses to go at large on their own recognizance. However, that is only one mode of accomplishing the end, which is the due appearance of the witness; therefore, where that mode, as well as the end is frustrated, as far as it can be, by the witnesses' refusal, it seems but reasonable that the justice should be warranted in committing, which is the only means left to secure the end. Ld. C. J. Ellenborough and the court in Bennet et ux. v. Watson et al. 3 Mau. & Selw. 1, 5; see The King v. Ring, 8 T. R. 585, when and by whom a subpæna may be obtained.

But a justice is not authorized to commit a witness willing to enter into a recognizance for his appearance to give evidence, merely because he is unable to find surety to join him in such recognizance, nor ought the justice to require such surety. The party's own recognizance, (at the peril of commitment,) is all that ought to be requir ed. Pr. Graham, B. Bodwin, Sum. Ass. 1817, M. S. 1 Burnes's Just. 1013, ed. Chit.

The practice of committing witnesses unable to find sureties for their appearance, is clearly repugnant to every principle of the English law. Ib. and baron Graham's charge to the grand jury, Sum. Ass. 1821, Ib.

If during the examination before the justices, it be suggested by any of the witnesses, or if the justice should deem it material that persons not before him should be examined, 'tis the duty of the justice to issue summonses for all such persons to appear before him and give their testimony. Dick. Just. 1 vol. 623, ed. 2d. Perhaps in some cases his warrant may be issued; it

seems very questionable, however, (though the practice has been by no means uncommon,) how far a compulsory process which deprives a man, not charged with any crime, or the suspicion thereof, of his liberty for a single moment, can be perfectly justifiable. Ib. 619, and see 1 Burns's J. ed. 24, p. 1000. (a) This warrant, should be under the hand and seal of the justice, expressing his office and authority, and the time and place; and 'tis safe to set forth that the party was charged on oath; it should contain the cause of the commitment, and 'tis advisable to describe the offence concisely and in substance as in an indictment; and when the offence is created by statute, it should be described accordingly. Haw. B. 2, c. 16, § 13, 14, 15, 16, 17, 18; and 1 Chitty's Crim. Law, [109, 112.]

It is safe that a warrant of commitment should set forth that the party is charged on oath or affirmation, but it is not necessary. The Com. v. Murray, jun. gen'l ct. June T. 1826, 2 Virg. Cas. 504. It seems that a seal is not essential. See Burley v. Griffith, 8 Leigh, 442; and J. Brockenbrough, 447, delivering op. ct.

In a commitment for felony, it is not essential to allege that the offence was feloniously committed. H. Judd's case, 1 Leach. Cas. 484, 4th ed. and 2 T. R. 255, S. C.

A commitment need not have the precision of an indictment, though there may not be sufficient facts formally stated, to sanction a verdict of "guilty;" yet it is sufficient if the corpus delicti be shewn to ground the commitment. Rex v. Croker, 2 Chitty's Rep. 138.

A warrant of commitment, must contain a good cause certain, supported by oath. See Ex parte Burford, 3 Cranch, 448, 453. (9) See ante, tit. BAIL IN CRIMINAL CASES. (7) A mistake of the justice in the date of the warrant of commitment, or of the warrant summoning the justices, is no ground for setting aside the subsequent proceedings. Ib.

(4) The five days must be either exclusive of both days, or inclusive of one, and exclusive of the other, and must not be inclusive of both. Thompson v. The Com. gen'l ct. June T. 1818, 2 Virg. Cas. 135. Qu. as to an intervening sunday being reckoned as a day? 14 East. 537, 1 B. & A. 528; see 2 Inst. 674, stat. of enrolments;

Llewelyn v. Williams & al. Cro. Jack. 258; Bacon v. Walker, 3 Bulst. 204; Pugh v. The Duke of Leeds, Cowp. 714; Dowling v. Foxall, 1 Ball & Beatty, 196; Bigelow v. Willson, 1 Pick. 495.

(b) Examining courts being the mere creatures of the statute law, cannot on any principle, exercise any power or jurisdiction, which has not been expressly conferred on them by that law, or which does not result to them, as the means necessary to carry the power expressly given to them, into ef fect. The Com. v. Myers, Virg. Cas. 234.

An examining court, is restricted in its enquiry, to the examination of the fact-the criminal act charged on the prisoner, by the commitment or summons. The Com. v. Myers, Virg. Cas. 243.

The commitment, is part of the record of the examining court, and if the warrant summoning the court, does not set forth the particular character of the charge or fact, the court may look into the commitment for those particulars. Lawther's case, sup. et. Henrico, 1819.-But, the commitment is no part of the record of the sup. ct. of law, though the warrant, summoning the examining court, is. See M'Caul's case, Virg. Cas. 301, and post. note (g).

If a prisoner excepts to an opinion of the examining court, and in his bill of exceptions, sets forth the warrant of commitment, he thereby makes that warrant a part of the record of the examining court. If, in such case, the warrant of commitment shews the offence charged on the prisoner to be the same with that for which he is indicted in the superior court, that indictment shall not be quashed, altho' the other part of the proceedings of the examining court only exhibit a charge of felony generally. Com. v. Murray, jun. gen'l ct. June T. 1826, 2 Virg. Cas. 504.

The return of a sheriff on a warrant authorizing and requiring him to summon the justices, that he has "executed" it, is sufficient.

Com. v. Murray, jun. gen'l ct. June T. 1826; see Page v. Com. 9 Leigh, 683.

The refusal of the examining court to grant the prisoner a continuance of the case, is no ground for arresting judgment in the circuit court; but if available there at all, it should be taken advantage of by plea in abatement or motion to quash the indictment. Morris v. Com. 9 Leigh, 636.

not be a bar to a prosecution for the other. Therefore, the acquittal of J. M. of the charge of burning the barn of Josiah T., was held to be no bar to a prosecution of J. M. for burning the barn of Josias T. though it was admitted to be the same fact, physically considered. The crimes being different, the defendant was acquitted of the first charge, (it having come out on the crossexamination of the prosecutor Josias T., that his name was not Josiah,) and detained in custody on a record of an examining court, sending him on for the offence properly laid. The Com. v. Mortimer, gen. ct. Nov. T. 1822, 2 Virg. Cas. 325. And see, The King v. Vandercomb & Abbott, 2 Leach. Cas. 708, 717, 4th ed.; 2 East. Cro. Law, c. 15, § 29; 1 Chitty's Crim. Law, [453;] 1 Hale, 513; Hughes's case, 4 City Hall Rec. 132; U. S. v. Randenbush, 8 Peters, 289.

But if the offence be in truth and substance the same, any merely formal variation in the manner of setting it out, will not prevent the prisoner's availing himself of the former acquittal. The King v. F. Clark, (Hil. T. 1820,) 1 Brod. & Bing. 473. If the prisoner could have been legally convicted on the first indictment, upon any evidence that might have been adduced, his acquittal on that indictment, may be successfully pleaded to a second indictment; and it is immaterial whether the proper evidence was adduced at the trial of the first indictment, or not. Rex v. Sheen, 2 Carr. & Pay. 634; Com. v. Roby, 12 Pick. 496.

But a discharge from custody, consequent to the entry of a nolle prosequi, will not support a plea of autrefois acquit; the party not having been discharged from the crime or offence. Lindsay v. The Com. gen'l ct. June T. 1823, 2 Virg. Cas. 345.

A dismission of a presentment, is not an acquittal. It is believed that there is no mode by which a prisoner can be acquitted of the offence with which he stands indicted, save the judgment of the examining court, the verdict of a jury, or the failure to indict him after three terms of the superior court have passed. A dismission is nothing more than an informal nolle prosequi, which is never considered in England as an acquittal, [1 Chitty's Cr. L. 480,] and was so decided here in Lindsay's case, 2 Virg. Cas. 345. Wortham v. The Com. in error, from hust. ct. of Richmond, gen'l ct. Nov. T. (26 Nov.) 1827.

A retraxit is unknown to the criminal law, as far as it respects a prosecution at the suit of the commonwealth. 'Tis a dispensing power not entrusted to a prosecuting attorney. Ibid. 5 Rand. Rep. p. 677. See U. S. v. Hill et al. 1 Brock. Rep. 156.

An acquittal of the felony of forging an order, and of uttering as true a forged or

der, is no bar to a prosecution for the misdemeanour of fraudulently obtaining goods by means of a false privy token, and counterfeit letter; the said privy token being the same order of the forgery and uttering of which he had been acquitted. Com. v. Quann, gen'l ct. Nov. T. 1817, 2 Virg. Cas. 88.

A discharge of a jury after they have rendered a verdict against the prisoner, but which verdict is adjudged to be a nullity, because it was not duly perfected, and therefore set aside as insufficient, is no bar to a prosecution under the same or new indictment. Gibson v. The Com. gen'l ct. Nov. T. 1817, 2 Virg. Cas. 111; and Com. v. Gibson, Virg. Cas. 70.

If a person be indicted for shooting S. W. and acquitted thereof, and be afterwards indicted for shooting J. W., her plea of autrefois acquit will not be supported, although the same act of shooting is charged in each indictment; for the jury who tried the first indictment, might have acquitted the prisoner on several grounds, which would not affect the second trial; as, that the shot did not strike and wound S. W., or that she did not shoot S. W. with intent to maim, disfigure, disable or kill the said S. W. If the prisoner to an indictment for shooting J. W. plead that she had been indicted and acquitted of the shooting of S. W. and that the shooting of which she is indicted is the identical shooting of which she had before been acquitted, and no other; and the verdict find “that she hath not before been acquitted of the same offence," this finding is sufficiently responsive to the issue on that plea, and therefore good. Vaughan v. The Com. Nov. T. 1821, 2 Virg. Cas. 273.

"A plea of autrefois acquit must shew, that the defendant was legitimo modo acquietatus, viz that he was acquitted upon an indictment sufficient to induce punishment if he had been convicted, and charging the same offence; and if it appears manifestly to the court, on looking at the two indictments, that the offences charged cannot be the same, it is clear, that the defendant cannot, by averment, shew that they are the same, because he would thereby contradict the record." Per Abbott, C. J. in The King v. Taylor, 3 B. & C. 502. The record of the former acquittal must be vouched. Wortham v. Com.

Where there are several counts in an indictment, and the prisoner is convicted on one and acquitted of the rest, if, on a writ of error obtained by him, the judgment and verdict are set aside, and a new trial awarded him, he can be tried again only on the count on which he was convicted. A. Lithgow v. The Com. gen'l ct. June T. 1822, 2 Virg. Cas. 297.