Act of February 26-March 1, 1819. R. C. ch. 169.

law, custom, usage or opinion, to the contrary in any wise notwithstanding.(e) Jan. 24-April 1, 1804, c. 34, ed. 1808.

5. § 2. If such prisoner [ante, No. 1] shall, in the opinion of the court, be bailable by law, the said court may bind him and his bail, by recognizance, to appear and stand his trial(1) at the said superior court of law;' or they shall enter their opinion in the proceedings, and also the sums of money in which he and his bail ought to be bound; and the said prisoner shall thereafter be admitted to bail, by any justice of the county or corporation, or by a judge of the general court. When any prisoner shall be thus admitted to bail, by any judge of the general court, or justice of the peace,' the judge or justice,' shall transmit the recognizance to the clerk of the superior court of law, and give a warrant for the deliverance of the prisoner; and the warrant being put into the hands of the officer in whose custody the prisoner shall be, he shall thereupon be delivered, if he be detained for no other cause. 1786, c. 57, 12 Stat. Larg. 341; 1792, c. 74, R. C.

6. 3. Any judge of the general court, when it is not sitting, may admit to bail a prisoner, when he shall think him or her entitled thereto, and grant a warrant for his deliverance, notwithstanding the justices before whom the examination was, shall have been of a different opinion. Ibid. See tit. BAIL. 7. § 4. When any person shall be sent, by a county or corporation court, to the superior court, to be tried for treason or felony, or other offence,' the clerk of the court of the county or corporation shall transmit and certify, immediately, to the clerk of the superior court, a copy or copies of the recognizance or recognizances, of each and all the witnesses, recognized to appear at the superior court, to give evidence against the prisoner; and, if the witness or witnesses, so bound to appear, shall fail to appear, pursuant to his, her or their recognizance, the said superior court shall immediately cause his, her or their default to be recorded; and it shall be lawful for the superior court to issue a writ or writs of scire facias, upon which, the like proceedings shall be had, as if the recognizance of the witness or witnesses had been taken in the superior court: Provided, That the witness or witnesses shall first be summoned to shew cause, if any he, she or they can, why such scire facias should not be issued. In like manner the clerk of the court of any county or corporation shall certify and transmit to the clerk of the superior court, a copy or copies of the recognizance of any prisoner let to bail, who is to be

Where a verdict finds a prisoner guilty upon some of the counts in an indictment, saying nothing of others, judgment of acquittal should be entered upon those counts of which the verdict takes no notice. Kirk v. Com. 9 Leigh, 627.

An indictment (described in the record of the finding, and in the entry of the arraignment, as an indictment for forgery) contains, 1. a count for forging and counterfeiting a note, and 2. a count for feloniously using and employing as true a counterfeit note; verdict finds the prisoner guilty of forgery, as alleged in the indictment. Held, an acquittal must be entered on the second count. Page v. Com. 9 Leigh, 683.

(e) See Bailey's case, Virg. Cas. 258, and Tazewell arg. in Myers's case, Virg. Cas. 221, for the former opinions on this subject.

(1) On the particular charge for which he has been examined and sent on; a recog. cond. to appear, and to do and receive what shall be injoined him by the court, will not

avail; because taken without authority, and the justice has no right to amend the recog nizance after its acknowledgment. Where a justice of the peace, under this law, took a recognizance from a prisoner, with sureties, conditioned for his appearing to do and receive what should be injoined him, and after the recognizance had been thus taken, the justice interlines the specific charge, without prisoner's knowledge, and without the express sanction and re-acknowledgment of the sureties, and a scire facias was sued out on the recognizance as amended by the justice: Held, that on a rule for the purpose, the recognizance may be restored to its original form, by striking out the interpolated matter; and, then on plea of no such record, judgment should be given for the defendants, because of the variance between the recognizance thus restored, and the recognizance described in the sci. fa. Bins et al. v. Floyd, gov. 7 Leigh, 640.

Act of February 26-March 1, 1819. R. C. ch. 169.

tried in the superior court, and also a copy or copies of the recognizance or recognizances of his or her bail; and if any prisoner let to bail, shall fail to appear in the superior court, pursuant to his or her recognizance, the superior court of law shall immediately cause his or her default to be recorded, and shall issue a writ or writs of scire facias against the prisoner and his or her bail, upon which the like proceedings shall be had, as if the prisoner had been let to bail by the superior court.(f) The copy or copies of all recognizances, so certified and transmitted to the clerks of the superior courts by virtue of this act, shall be admitted and received as evidence in the said courts, in like manner as the original or originals might have been, had they been entered into in the superior courts. Any clerk failing to perform the duties herein above required of him, shall forfeit and pay, for each failure, to the use of the commonwealth, the sum of one hundred dollars, to be recovered by action of debt or information, in any court of record. Jan. 24-April 1, 1804, c. 34,

ed. 1808.

8. § 40. When any person shall be remanded to be tried for treason or felony in the superior court of law, the clerk of the court for the county or corporation from whence the prisoner is remanded, shall, immediately after the court holden for his or her examination, transmit to the attorney for the commonwealth in the superior court, a copy of the warrant for his or her commitment, and of the depositions taken on the examination. Any clerk failing to perform the duties hereby required of him, shall forfeit and pay to the use of the literary fund, the sum of fifty dollars, to be recovered in any court of record, by action of debt or information. From 1788, c. 67; 1792, c. 74, R. C.; 1804, c. 34, ed. 1808.

9. § 8. Before any person, charged with treason or felony, shall be tried before a superior court of law, he or she shall be examined in the manner prescribed by law, (g) by the court of the county or corporation, wherein the of

(f) The Com. v. Walton, Virg. Cas. 142; a case exemplifying the defect of the law, anterior to this provision. See The U. S. v. Fealy, 1 Brock. R. 255, for power of the court over the recognizance after forfeiture.

(g) It is error to put a prisoner upon trial on an indictment for felony, found by the grand jury, in a circuit superior court, before any examination of him for the of fence in the county or corporation court, though such examination be had after the indictment found, and before the trial. Hurd's case, 5 Leigh, 715.

It ought to appear in the record of the proceedings of the examining court, for what fact the prisoner has been remanded. The warrant summoning the magistrates, is part of the record of the examining court, and as such, may be looked into by the superior court; but the warrant of commitment, is not part of the record, and, therefore, cannot be looked into. The Com. v. M'Caul, Virg. Cas. 271, 300. See ante, same tit. No. 1, note (b).

If it appear by the record of the examining court, for what fact the prisoner is remanded, he may be indicted and tried in the superior court, for any offence embraced by that fact. The superior court does not require that the record of the examining

court, should be as technical as an indictment; but it is essential, that it should set forth the fact, for which the prisoner was by that court examined, in terms sufficiently plain, to enable the court to judge whether the prisoner is indicted for the same fact, or for any offence embraced by the same criminal fact. The Com. v. A. Lithgow, sup. court Henrico, Nov. T. 1821.

The record of an examining court need not set forth the offence with the same precision and certainty as an indictment. In an examination for horse stealing, it is not essential to charge that he was feloniously taken-stealing is sufficient. Nor is it essential to lay the horse to be the property of any person. And if the record of the examining court, charge the stealing of a dark bay horse; or the stealing of two horses and a halter, chain and collar of the value of $150; and the indictment charge the stealing of a dark bay gelding; or the stealing of the two horses of the value of $75 each, these variations will not be a ground sufficient to quash the indictment. Halkem v. Com. gen'l court, June T. 1815, 2 Virg. Cas. 4.

If A. be examined for stealing three bags of cotton "of the goods and chattels of N. L." he may be indicted in two counts for stealing three bags of cotton. In one

Act of February 26-March 1, 1819. R. C. ch. 169.

fence was committed; unless such examination be dispensed with by the assent of the prisoner entered of record in such superior court. (h) 1804, c. 34, ed. 1808.

If the prisoner be sent on, charged with passing a forged note, he may be indicted in the sup. court for passing it, knowing it to be forged. Ibid.

10. § 9. When the justices shall have determined that a prisoner ought to be tried for an offence in the superior court of law, the clerk of the court where such examination shall be had, shall issue a venire facias, to be directed to the sheriff or serjeant, commanding him to cause twelve good and lawful men, freeholders of his county or corporation, of the neighbourhood of the place where the fact shall have been committed, to come before the judge of the superior court, at the time the witnesses shall be bound to appear there; which writ shall be executed by the said sheriff or serjeant; and the freeholders summoned by virtue thereof, or such of them as appear and be not challenged, together with so many other good and lawful men of the bystanders, count, of the goods and chattels of N. L.; and in the other count, of the goods and chattels of a person unknown—and he may be convicted on the second count and acquitted on the first. Therefore, a motion to quash the second count, on the ground that he had not been examined for the offence with which he is therein charged, was overruled. The offence consists in the larceny of the subject; the property of the goods, is merely an incident, and does not enter into the essence of the crime. Though it is absolutely necessary in an indictment, to state in whom the property is, and to prove the averment as alleged, it is not necessary in the record of the examining court. That he is indicted for the same fact, for which he has been examined ought to appear, but the defect of the record in this respect may be helped by averment. D. Mabry v. The Com. June T. 1824, 2 Virg. Cas. 396; see Rex v. Walker, 3 Camph. R. 263.

If an indictment for stealing bank notes does not charge, that they are the bank notes of, or belonging to, some person or persons by name, or of, or to some person to the jurors unknown, the defect is fatal. Barker v. The Com. gen. ct. Nov. T. 1817,2 Virg. Cas. 122.

The record of the examining court, charged the prisoner with a felonious stabbing, with intent to kill. The indictment contained four counts, of which the first charged a malicious stabbing, with intent to kill; the second, a malicious stabbing, with intent to maim, disfigure and disable; the third and fourth, an unlawful stabbing, with same intents respectively. This variance between the record of examining court and indictment, no ground to quash the latter. Derieux v. Com. 2 Virg. Cas. 379. If the record of the examining court charge the prisoner with forgery, he may be indicted in the superior court, not only for the forgery, but also for procuring the instrument to be forged, and for acting and assisting in the forgery; and it is not necessary to set forth the persons procured, or those with whom he acted and assisted. Henry Huffman's case, 6 Rand. 685.

The defect of some of the counts in an indictment does not affect the validity of the rest, and if any count is good, judgment may be given against the accused. Kirk v. Com. 9 Leigh, 627.

If a prisoner be sent on from an examining court, on a charge against the stabbing act, he cannot be indicted in the superior court for murder (the party having died in the mean time) without a further examination. The Com. v. Linton, gen. ct. June T. 1820, 2 Virg. Cas. 205.

(h) It is not essential to the jurisdiction of a superior court, that it should appear on the records thereof, that an examining court had been held on the prisoner; and, after verdict, no exception can be taken. The Com. v. Miller, Virg. Cas. 310; The Com. v. Cohen, gen. ct. June T. 1819, 2 Virg. Cas. 158; The Com. v. Angel, gen. ct. Nov. T. 1820, 2 Virg. Cas. 231; Campbell v. Com. June T. 1822, 2 Virg. Cas. 314. Therefore, if a prisoner wishes to avail himself of the privilege of an examining court, he must do so by plea to the jurisdiction of the superior court, [which is certainly the proper mode,] or he may move to quash the indictment, on which motion, the court will look into the record of the examining court, to ascertain whether the prisoner has been examined for the same charge. This motion should be made before plea. The Com. v. M'Caul, Virg. Cas.

279, 301.

But if a prisoner, even after pleading to issue, finds that he has not been examined, and moves for leave to withdraw his plea, and moves to quash the indictment, because he has not been examined, his motion ought ex debito justitia to be allowed him; and if the court finds that the fact is so, the indictment ought to be quashed. Per J. Brockenbrough, in delivering opinion of gen. ct. in Cawood's case, 2 Virg. Cas. 545.

Act of February 26-March 1, 1819. R. C. ch. 169.

being freeholders within this commonwealth, as will make the number twelve ; or, if the whole array be challenged, twelve of such bystanders shall be a lawful jury for the trial of the prisoner. (3) The judge of any superior court of law, before whom any prisoner may be arraigned(i) on a charge of treason or felony, [or any misdemeanour or misdemeanours, § 15,] shall have power, on the application of the said prisoner, and for good cause shewn, to order the venue to be changed to the most convenient superior court of law in the same or an adjoining circuit, where, in his opinion, the commonwealth and the prisoner can have a fair and impartial trial; and in all cases, where from the number of challenges made, either for cause or peremptorily, it shall appear to the satisfaction of the judge before whom such prisoner shall be arraigned,(i) that an impartial and legally qualified jury cannot be had from the county or corporation where the offence may have been committed, for the trial of such prisoner, the said judge shall in like manner have the power, whether the said prisoner may consent or not,(4) to change the venue to the most convenient superior court of law in the same or an adjoining circuit, where, in the opinion of the court, the commonwealth and the prisoner can have a fair and impartial trial. (1) And wherever, in either case, the venue in a criminal case may be changed as aforesaid, it shall be the duty of the judge to recognize the witnesses to appear before the superior court of the county to which such case may be removed, on some certain day of such court,(5) as soon as may be ; and also to recognize the prisoner in like manner to appear at said court, at the same time, if the offence with which he is charged shall, in the opinion of the said judge thus directing the venue to be changed, be bailable; and if not bailable, or he shall have failed to give such bail as may be required by the court, then to remand him to jail, there to remain until his removal to the jail of that court to which his trial may have been changed as aforesaid; and the said judge is hereby directed to certify such recognizances taken as aforesaid, together with a copy of the record of the case, and of the order changing the venue, and all other papers which he may deem necessary to the trial(2) in such other court to which the case may be removed, to the clerk of such court, whose duty it shall be, on the receipt thereof, to issue a venire facias directed to the sheriff of such county; and the judge of the said superior court is directed to try the said prisoner in the same manner as if the offence had been committed within such county, and the prisoner had been sent on by an examining court of the same county: Provided, That any indictment found, or plea filed, in the court from which such trial shall have been removed, shall be as valid and effectual as if the same indictment had been found, or the same plea had been filed, in the court in which the prosecution is pending; and duly cer

(3) If a jury cannot be formed from the original panel of the venire nor from the bystanders, in consequence of the exercise of the right of challenge, the court may award a venire facias commanding the sheriff to summon a specified number to attend the court then in session, out of whom a jury may be formed for the trial of the prisoner, and on return of that process, and the attendance of the persons so summoned, the prisoner may be compelled to elect a jury, saving the right of challenge: such process may be amended on the report of the sheriff, that there are no other by-standers, nor will the court at a subsequent time, hear proof that there were other qualified bystanders, who were not called. Levi Gibson's (2d) case, 2 Virg. Cas. 111.

Who is an impartial juror? See Moran v Com. 9 Leigh, 651; and Maile v. Com. Ibid. 661.

(i) A motion to change the venue, cannot be made, before indictment found. The Com. v. Lithgow, sup. ct. Henrico.

(4) A. Vance's (2d) case, 2 Virg. Cas. 162. (1) See The Com. v. Rolls, and Ib. v. Wildy, gen'l ct. June T. 1817, 2 Virg. Cas. 68-69, for the law anterior to these provisions.

(5) See Brooks v. The Com'th, 4 Leigh, 669.

(2) The provisions of this section do not require that the judge should certify a copy of the record of the examining court. Vance v. Com. 2 Virg. Cas. 162.

Act of February 26-March 1, 1819. R. C. ch. 169. tified copies thereof shall be sufficient for such court to proceed to trial on.(3) It shall moreover be the duty of the judge of the superior court of law directing the venue to be changed as aforesaid, in case he shall have remanded the said prisoner to jail, to issue his warrant, directed to the sheriff of such county, commanding him to have the body of such prisoner before the judge of the superior court of law of the county to which such case may have been removed, on the day on which said witnesses may have been recognized to attend the said court. And the said sheriff to whom such warrant may be directed, shall legally execute the same, and for that purpose is hereby authorized to impress so many men, horses and boats, as may be necessary for the safeguard and conveyance of said prisoner; and the court to which such prisoner may be removed is hereby directed to certify to the auditor of public accounts all claims attending the conveyance of said prisoner; which claims shall be paid in the manner now prescribed by law for the payment of like claims attending the removal of convicts to the penitentiary.' No justice of the peace, or member of a corporation court, who shall have committed any person for examination by the court of his county or corporation, or shall have been a member of the examining court, shall be sworn on the petit jury impannelled for the trial of such person. From 1786, c. 57, 12 Stat. Larg. 340; 1792, c. 74, R. C.

11. § 10. The offence of petit larceny may be tried in the court of the county or corporation in which such offence was committed. And to this end, it shall be the duty of the examining court before whom any offender shall be brought, if they think that he ought to be further prosecuted for the offence of petit larceny, and that such offence is cognizable before the court of their county or corporation, to remand such offender to jail to take his trial accordingly, or to take his or her recognizance, with sufficient security, for his or her appearance on the first day of the next quarterly term for such county or corporation, and to take the recognizances of all material witnesses to appear at the same time. Jan. 29-June 1, 1803, c. 21; Feb. 1—April 1, 1804, c. 41, ed. 1808. See ante, tit. CRIMES AND Punishments, No. 27, p. 220, and note thereto; also No. 68, and note thereto. See act April 8, 1831, Ses. Acts 1830-31, c. 38, 1, p. 106; Sup. R. C. c. 224, § 1, p. 278. See post. tit. CRIMINAL PROSECUTIONS, slaves, No. 2.

12. § 11. The mode of trial shall be by indictment, found by the grand jury of such county or corporation court, according to the rules adopted in the superior courts of law. The sheriff shall, immediately thereupon, summon twelve good and lawful men, not members of the grand jury, and in every respect qualified as veniremen in the said superior courts, who shall constitute a jury for the trial of such person. The right of challenge shall be the same as on other trials for felony. 1803, c. 21, ed. 1808. See post. same tit. No. 37.

13. § 12. The superior courts of law, in each county, shall have concurrent jurisdiction with the county and corporation courts, in the trial of free persons charged with petit larceny. And where any such person, charged at a quarterly term of the county or corporation court, with petit larceny, shall, by the grand jury or petit jury, be deemed guilty of grand larceny, they shall so state the fact; and it shall be the duty of the court to send the person, so deemed guilty, to the superior court of law of the county, for further prosecution; and to do all other acts, which are required by law to be done by an examining court who send a person to be tried in a superior court of law. And such superior court shall proceed against such person, in the same manner, as if he had been sent for trial by an examining court. Jan. 30-Apr. 1, 1812, c. 30. See The King v. Kynoston, 1 East's Rep. 117; 24 Geo. 2, c. 55.

(3) A prisoner having been arraigned, and pleaded in the county in which the offence was committed, need not be arraigned, nor

required to plead in the county to which the ven is changed. A. Vance's (2d) case, 2 Virg. Cas. 162.