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

14. § 39. If treason or felony, or other offence punishable by confinement in the public jail or penitentiary-house,'(1) be committed in any county or corporation, different from that in which the culprit shall be arrested, any justice of that county or corporation, in which he or she is arrested, may, (2) by his warrant, cause the offender to be put into the custody of the sheriff or serjeant, to be by him conveyed to the county or corporation where the offence was committed, (and every sheriff or serjeant, while he shall officiate in execution of this act, may impress so many men, horses, and boats, as may be necessary for the safeguard and conveyance of the offender into such other county or corporation,) and there brought before some justice thereof, who shall proceed in like manner, as if the offender had been brought before him in the first instance; and the sheriff or serjeant, for removing a criminal from one county or corporation to another, shall be allowed the same compensation for such service, as is allowed to sheriffs for removing criminals from the jails of the superior courts of law to the penitentiary-house, to be paid in like manner as other expenses for criminal prosecutions. See ante, tit. CRIMES AND PUNISHMENTS, No. 93, 95. From 1786, c. 57, 12 Stat. Larg. 340; 1792, c. 74, R. C. See 1 Hale, 580; 2 Hawk. c. 16, § 8, p. 183, 6 ed.

15. § 36. When any person shall be feloniously stricken or poisoned in one county or corporation, and shall die of the same. stroke or poisoning in ano

(1) Quary.-Does this specification, exclude other offences which are not felonies, but misdemeanours punishable by fine and imprisonment in the common jail, at common law, or by statute?

(2) An affidavit made before one magistrate, is admissible in an examination before another, on the principle that before the accused is put on his trial, all the proceedings are ex parte. Marshall's op. Burr's T. vol. 1, p. 24; U. S. v. Bollman & Swartwout, 4 Cranch, 75, 129.

To decide that an affidavit made before one magistrate, would not justify a commitment by another, might in many cases be productive of great inconvenience, and does not appear susceptible of abuse, if the verity of the certificate be established.

Geo. 2, have sanctioned the practice. In the case of William alias Thomas Best on habeas corpus, cor. Brockenbrough, J. 10th and 11th Feb'y 1834, arrested on a warrant issued by Hugh Caperton, a justice of the peace of Monroe county, July 15th, 1833, and backed by J. T. mayor of city of Richmond, on proof of authenticity, and executed by D. C. of city; and Best committed to serj. of city, to be conveyed to Monroe. Practice not questioned by counsel, and sanctioned by the judge. The only point presented was, the generality of the charge, (forgery, &c.) in the warrant, which the judge overruled, and remanded the prisoner to the serjeant to be conveyed to Monroc county, as directed by the mayor's warrant. Scott for prisoner, Lyons for com'th.

Frederick Cousins was convicted of Indorsement on a warrant to be executed in horse stealing by the superior court of law

another county:

of Petersburg. The evidence proved that the horse was taken feloniously by F. Cousins in Pittsylvania county, and then brought by him to Petersburg, and there feloniously had possession of him, and used him, and offered to sell him: Held, by the general court, that the superior court of Petersburg had jurisdiction of the offence. June T. 1830, 2 Leigh, 708.

See 2 East's Crown Law, 771, and authorities cited; and see Perkins's case, 1 Ry. & Moo. Cro. Cas. Res. 45. But if larceny be committed out of the jurisdiction of the commonwealth, and the property brought into the commonwealth, it will not be larceny in the commonwealth. See Simmons v. The Comth. 5 Binney, 617; Rex v. Prowes, 1 Ry. & Moo. C. C. R. 349; see The People v. Burke, 11 Wend. 129, on stat. law of N. Y.

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

ther county or corporation,(j) the offender shall be examined according to law by the court of the county or corporation where such stroke was given, or poison administered; and he shall be tried by the superior court of the same county. 1789, c. 30, 13 Stat. Larg. 39; 1792, c. 74, R. C.; 7 Geo. 4. c. 64, § 12; 7 and 8 Geo. 4, c. 20, § 56.

16. § 37. In like manner, an accessary to a murder or felony committed shall be examined by the court of that county or corporation, and tried by the superior court of that county, in which he became accessary; and shall answer upon his arraignment, and receive such judgment, order, execution, pains and penalties, as are used in other cases of murder or felony. Ibid.

17. § 13. If any person, summoned as a venireman to attend any court, shall fail to attend accordingly, not having a reasonable excuse, he shall be fined by such court eight dollars to go to the commonwealth, for the use of the literary fund. From 1788, c. 67; 1792, c. 73, R. C.; 2 and 3 Ed. 6, c. 24, p. 4. See tit. JURIES, post. No. 11, 12.

18. § 50. When, by law, the sheriff or other officer is directed to summon a jury to take any inquest, if the person or persons so summoned fail to attend, it shall be the duty of the sheriff or other officer to return the name or names of the person or persons so failing, to the next court of his county or corporation; or, where the process directing such jury to be summoned, issued from any other court, then to the next term of such other court; whereupon it shall be lawful for the court to fine such person or persons, in a sum not exceeding eight dollars. Jan. 25-June 1, 1806, c. 71, ed. 1808.

19. § 51. It shall not be lawful for any court, either of law or of equity, to impose any fine upon a juror, witness or any other person, for disobedience of its process, or for any other contempt, unless the person on whom such fine shall be imposed, shall either be present in court at the time, or shall have been duly served with a rule of the court, returnable to some certain day, requiring him to shew cause why such fine should not be imposed upon him, and shall have failed to appear and shew such cause. When any such fine shall so have been imposed, either in the presence of the party offending or after he shall have been served with a rule to shew cause against it, and shall have failed to do so, the order imposing the fine shall be final, and the party offending shall not again be heard, in the same court, to shew cause against it; any former law to the contrary notwithstanding. Jan. 12, 1813, c. 20.

20. § 14. Veniremen summoned and attending court for the trial of any person charged with a criminal offence, shall not be entitled to any compensation for their services; but, whenever, in the trial of any criminal cause, it shall be necessary to keep together the jury beyond the day on which they were impannelled, it shall be the duty of the court, before whom such trial shall be depending, to direct the sheriff or other proper officer to furnish such jury with convenient board and lodging during the period of their confinement.t For all reasonable expenses incurred under such order, the court shall

(j) But if the party be feloniously stricken, &c., in any county or corporation in Virginia, and die out of the territorial limits thereof, the offender cannot be tried for the felonious homicide in any county or corporation in Virginia, though he may be examined and tried for the felonious striking, &c., which was consummated in Virginia. The Com. v. Linton, gen. ct. June T. 1820, 2 Virg. Cas. 205.

According to the English rule, introduced by 2 and 3 Edw. 6, c. 24, the venue is laid in the county in which the death happens.

The Virginia law is, certainly, much more conducive to public justice, and is in accordance with the opinion that was most common at the common law. See 1 Hale, 426.

See ante, tit. CRIMES AND PUNISHMENTS, No. 2, note*. Acts 1840, c. 59, § 2, p. 50, providing for the case where the party died out of the commonwealth.

The sheriff is bound ex officio to keep the jury when adjourned in a criminal case. It is not indispensably necessary that he should be sworn, though it is generally done

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

make an allowance to the sheriff or other officer, and certify the same to the auditor of public accounts, to be paid out of the public treasury; provided, that such allowance shall in no case exceed the amount of one dollar and twenty-five cents per diem, for each juror so confined. March, 1661-2, act 37, 2 Stat. Larg. 74. From Feb. 10, 1808; Jan. 1, 1810, c. 121, ed. 1812; Jan. 9, 1813, c. 21.

21. § 28. When any prisoner committed for treason or felony, shall apply to the court the first day of the term, by petition or motion, and shall desire to be brought to his trial before the end of the term, and shall not be indicted in that term, unless it appear by affidavit, that the witnesses against him cannot be produced in time, the court shall set him at liberty, upon his giving bail, in such penalty as they shall think reasonable, to appear before them at a day to be appointed, of the succeeding term. Every person charged with such crime, who shall not be indicted before, or at, the second(3) term after he shall have been committed, unless the attendance of the witnesses against him appears to have been prevented by himself, shall be discharged from his imprisonment, if he be detained for that cause only; and if he be not tried at or before the third term(1) after his examination before the justices, he shall be forever discharged of the crime; 'unless such failure proceed from any continuance, granted on the motion of the prisoner, or from the inability of the jury to agree on their verdict.'(k) Oct. 1778, c. 2, § 6, 9 Stat. Larg. 474; 1786, c. 57, 12 Stat. Larg. 340; 1792, c. 74, R. C.; post. same tit. No. 34. out of abundant caution. But, if it were admitted to be necessary, it would be presumed he was sworn, unless the record shewed the contrary. William Bennett's case, 8 Leigh, 745; Brown, Clopton, and Christian, contra.

(3) If after the prisoner has been examined by the examining court for an offence, two actual sessions of a superior court thereafter occur, and it does not appear, from the records of the superior court, that an indictment has been found against him, he is entitled, under this statute, to be discharged from his imprisonment, although he has been in fact arraigned on and has pleaded to an indictment not appearing by the record to have been found by the grand jury. And if a third actual term has passed without such record of the finding, he is entitled under this statute to be discharged from the crime. The Com. v. Cawood, gen. et. June T. 1826, 2 Virg. Cas. 527.

(1) A special session of a superior court of law held for the trial of offences, is not the third term within the meaning of this act, but is a substitute for it; and, therefore, where there was a failure to hold two regular terms, and then a special session was held, at which the prisoner was not tried, but being indicted at the regular term succeeding the special session, he ought not to be discharged from the crime, but tried. Com. v. Lovett, gen. ct. June T. 1817, 2 Virg. Cas. 74.

The word "term," in this act, ought to be construed to mean the actual session of the court, and not the stated time when a court should be held. This construction must be given to this word in all the three

clauses of this section: therefore, where a prisoner was remanded for trial, by the examining court in June 1822; at the October term the court did not sit; at the May term 1823, the case was continued for the commonwealth; at the third term in October 1823, there was no court: Held, not entitled to be forever discharged from the crime. Ex parte Joseph Santee, gen. ct. November T. 1823, 2 Virg. Cas. 363; Judges R. Parker, White, Allen and Semple, contra.

(k) The prisoner was arraigned, and pleaded, and put on his trial, and the jury, after hearing the evidence and the arguments, retired to consult on their verdict. Not agreeing, they were kept together during the full legal term of the court; at the expiration of which they separated, without rendering a verdict. The prisoner was, on his motion, recognized to appear on the first day of the succeeding term. He appeared accordingly, and moved the court that he should be discharged from the prosecution. By the general court, November T. 1813: It not appearing from the record of the proceedings in this case, that the said superior court made any order discharging the jury, after it had been charged with the case of the prisoner; but on the contrary, it appearing from the said record, that upon the adjournment of the said court, at the end of the term, the members of the said jury were necessarily separated, and its capacities and legal existence destroyed by operation of law: It is, therefore, unanimously decided by this court [judges White, Stuart, Brockenbrough, Allen, Dabney, Daniel, Randolph and Dade,] that the prisoner ought not to be discharged from further prosecution on

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

22. § 29. If a prisoner shall desire any witnesses to be summoned for him

the indictment, notwithstanding at a superior court of law held at a former term, he had been arraigned upon the said indictment, and notwithstanding at the same court a jury was impannelled to pass between him and the commonwealth, and charged with his case, and retired to consult of their verdict, and not agreeing were confined the full legal term of the said court, and did not render any verdict in the said case, but separated on the adjournment of the court at the end of the term. The Com. v. J. E. Thompson, Virg. Cas. 319.

What is such a necessity, as will justify a court, in discharging a jury charged with the case of a prisoner, and re-committing him to another jury? See on this subject, The Kinlochs' case, Fost. R. 22, 29-39; Scalbert's case, 2 Leach. Cas. 620; Edwards's case, 4 Taunt. 309; The People v. Olcott, 2 Johns. Cas. 301; the Court's op. by Kent, J. 302-310; The Com. v. Bowden, 9 Mass. R. 494; The People v. Goodwin, Mr. Sampson's R. p. 181, 191, 222; 18 Johns. R. 187-207, S. C.; The People v. Barrett et al. 2 Caines' R. 304, and The Com. v. Cook et al. (December 1822,) 6 Serg. & Raw, 577; see The King v. Woolf et al. 1 Chitty's R. 401, and note (b), 2 Barn. & Adol. 609. S. C. The dispersion of the jury, with the permission of the court, during the interval of an adjournment in case of misdemeanour, does not vitiate their verdict, where there is no suggestion of their having been improperly practised upon in the interim. And whether the jury shall or shall not be permitted to separate before verdict, in cases of misdemeanour, is matter of discretion with the court. By the whole court of K. B.: This was a separation during the trial. Does the same rule apply, after the whole case is submitted to them, and they have left the box? U. S. v. Perez, 9 Wheat. 579. In this case the superior court admitted that some diversity of opinion and practice on this subject existed in the American courts; but after weighing the question with due deliberation, they were of opinion that the court is invested with the discretionary authority of discharging the jury from giving any verdict, whenever in their opinion, taking all circumstances into consideration, there is a manifest necessity for the act, or that the ends of public justice would otherwise be defeated; and were therefore of opinion that the discharge of a jury from giving a verdict in a capital case, without the consent of the prisoner, the jury being unable to agree, is no bar to a subsequent trial for the same offence. And see Rex v. Edwards, Russ. & Ry. C. C. R. 224; Rex v. James Streak, 2 Carr & Pay. 413; U. S. v. Haskell & Francois, 4 Wash. C. C. R. 402; Com. v. Clew, 3 Rawle, 498.

Per Holt, Ch. Justice, 9 November 1698, in a case of perjury tried before him, The King v. Perkins, he said, that it was the opinion of all the judges of England, upon debate between them,-that in capital cases a juror cannot be withdrawn, though all parties consent to it,-that in criminal cases, not capital, a juror may be withdrawn, if both parties consent, but not otherwise; and, that in all civil causes a juror cannot be withdrawn but by consent of all parties.. Carthew's Rep. 465. In the third ed. of Dickinson's Prac. Guide to the Quarter Sessions, ed. Talfourd, 1829, it is laid down on the authority of the case in Carth. that in cases of misdemeanours a juror may be withdrawn by consent of the prosecutor and defendant, but not without it. Dick. Qur. Sess. p. 390.

Whether the court possesses the power and authority to discharge a jury, [in a capital case] after they have been impannelled and sworn, on being satisfied there is sufficient reason to believe that there is no probability of the jury agreeing in a verdict, was discussed in the case of Sidney Fells, gen. ct., June T. 1838, but not decided. In this case the jury had been kept together (after the cause had been submitted to them) nine days; on the ninth day L. Hill, one of the jurors, submitted to the court his affidavit, that his health was suffering from confinement, and that he apprehended serious consequences would ensue if longer confined. And another juror submitted affidavit of Doct. B., that his wife was near her confinement, &c. Judge Nicholas discharged the jury under the circumstances, and thereupon Fells (free black,) moved the court to discharge him, on the ground that the discharge of the jury entitled him thereto. Question adjourned to gen. ct. Judge Upshur delivered opinion of court: It has long been well settled, both here and in England, that in cases of misdemeanour the court has power to discharge the jury, and again to put the accused on his trial before a new jury; but it has not yet been decided in Virginia, that the same power exists in trials for felony. One general rule is deducible from all the cases, (cited,) that the court may discharge the jury whenever a necessity for so doing shall arise; but what facts and circumstances shall be considered as constituting such a necessity, cannot be reduced to any general rule. The case before us is one in which the necessity for discharging the jury, contemplated in the authorities, is manifest and strong. And it would not have been right or proper in the court below to discharge the prisoner.

In any criminal case, whether capital or other, the court has power, for good cause, to discharge the jury, and put the accused

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

or her(2) to appear either at the examining court, or on the trial at the superior court of law, the clerk of the said court, or of the county or corporation court, (as the case may be,) shall issue subpoenas for such witnesses, who, being summoned, and attending, shall have the like allowance for travelling and attendance, and be subject to the same penalty for failing to attend, as is provided for witnesses in civil cases. May 1661-2, act 28, 2 Stat. Larg. 67; 1788, c. 67; 1792, c. 74, R. C. See tit. EVIDENCE, No. 5.(a)

23. § 52. Upon presentment made by the grand jury of an offence not capital or punishable by confinement in the public jail and penitentiary-house, the court shall order the clerk to issue a summons, or other proper process, (1) against the person or persons so presented, to appear and answer such presentment at the next court, and thereupon hear and determine the same, according to law.t Ibid.

upon his trial before a new jury. Com. v. Fells, 9 Leigh, 613.

Such power held to have been properly exercised in a capital case, where the jury had been kept together for nine days without agreeing on a verdict, and the health of one of the jurors was suffering from confinement, while the personal attentions of another juror were required by the situation of his wife. S. C.

(2) And the prosecutor or commonwealth's attorney, it seems, may in like manner obtain subpoenas for witnesses. See The King v. Ring, 8 T. R. 585.

(a) It shall not be lawful for witnesses summoned on behalf of a free person tried or examined for any offence whatever, to receive payment from the commonwealth for their attendance, but all charges for the summoning and attendance of witnesses on behalf of free persons, shall be charged and paid by such free persons as in other cases. Ch. 16, § 2, act Feb. 12, 1829, Ses. Acts, p. 22; Sup. R. C. 264.

(1) When the grand jury make a presentment for a misdemeanour, and upon the summons to answer, the defendant fails to appear, and the information is filed, the defendant must be summoned to answer the information. If the defendant be charged with an offence, to which an infamous or corporal punishment is affixed or may enure, the court may in its discretion award a capias in the first instance; and on presentments for offences of an inferior degree, the court ought, after two venire faciases returned not found, to award a capias. The Com. v. M'Clenegan, Virg. Cas. 155; The Com. v. Goode, gen. ct. June T. 1820. Since reported in 2 Virg. Cas. 200. J. Varner, presented April T. 1815: summons awarded and issued, returnable next Sept. T. Process executed; V. failed to appear; rule made absolute, and information ordered to be filed. Information was not filed at Sept. T. but 'twas filed at the succeeding April T. 1816, on which, summons was asked against V. to answer the information. Motion opposed, on the ground, that the omission to award process, &c.

operated a discontinuance. Per curiam. The failure to award process at Sept. T. 1815, did not produce a discontinuance of the prosecution. The Com. v. Varner, 2 Virg. Cas. 62.

Hill, presented March T. 1810; regularly proceeded against by information till Nov. T. when a special verdict was found against him; and cause continued till next term, March 1811; at this term the cause was not noticed in the order of the court; nor was it noticed at June T.; but at Aug. T. it was continued; and at Nov. T. 1811, judgment was rendered on the verdict against defendant on writ of error. curiam. The adjournment of the court at March T. 1811, without entering a continuance on its records, did not operate a discontinuance of the prosecution. Pitman Hill's case, 2 Virg. Cas. 61.

Per

A. Gourd, indicted 17th May, 1824; summons issued, returnable to next term; summons executed. The defendant did not appear at the next term, 18th Oct. 1824, and no order was made by the court directing any process to be issued, and none was issued. At Oct. T. no case was called on the docket for trial, except a case for felonyall the other causes on the docket, including Gourd's, were continued by a general order to the next term. At the next term, May 1825, defendant appeared, and moved to strike the case from the docket, on the ground of discontinuance. Per curiam. Under the facts stated, no discontinuance of the prosecution therein set forth, has occurred; and the Rep. J. Brockenbrough referred to the cases of Hill and Varner, supra, 2 Virg. Cas. 470.

For the common law doctrine on this subject, see Burley v. Banks, K. B. Jac. 1; 1 Bulstr. 143; Yelv. S. C. 204; and Cro. Jac. 283; and The Queen v. Tutchin, 1 Salk. 51.

+ Defendant was indicted for an assault at the Oct. term. The court rose without awarding any process. Decided in conformity with several previous decisions, that the failure to award process, produced no discontinuance of the prosecution. The Com.