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

24. § 53. All original process to bring any person or persons to answer in any indictment, information or other criminal prosecution in any court in this commonwealth, and all subsequent process therein, shall be issued and bear teste by the clerk of such court, and be made returnable either to the first day of the next term, or to such other time as may be prescribed by law, or directed by the court. All subpœnas for witnesses in criminal cases, shall be issued and bear teste in the same manner, and be made returnable as occasion may require, to some certain day, either of the next term, or of the court then sitting.

25. § 20. When a presentment shall be made by a grand jury of this commonwealth, in any of the superior courts thereof, having criminal jurisdiction, of a felony committed by any person, and the person so presented would be entitled to a trial before an examining court of his or her county, it shall be the duty of the judge, who presides when such presentment is made, to issue his warrant directed to any sheriff or constable for apprehending the person so charged, and commit him, her or them to the jail of the county, where the presentment shall charge the said offence to have been committed; and upon the person so charged being apprehended and committed to jail, the jailor shall immediately notify some justice of the peace, in and for his county, thereof; which justice shall issue his warrant to the sheriff of his county, commanding him to summon the justices thereof, for the purpose of holding an examining court upon the person committed, in like manner as hereinbefore directed in other cases. And it shall be the duty of the said sheriff to summon the witnesses, who gave the evidence before the grand jury when the presentment was made, (as well as any others,) to attend the said examining court. A list of the names of the witnesses, who gave evidence before the grand jury, shall be endorsed upon the warrant by the judge, at the time of issuing the same. Feb. 7, 1809, c. 23; c. 24, ed. 1812.

26. § 16. After any person shall be indicted of treason, felony,* or other crime to which by law an infamous punishment is affixed,(7) if he or she be not already in custody, the sheriff shall be commanded to attach his or her body, by writ or by precept, which is called a capias; and if he return that the body is not found, another writ or precept of capias shall be immediately made returnable forthwith, in which the sheriff shall also be commanded to seize his or her chattels, and safely to keep them; and, if he return that the body is not found, and the indictee cometh not, an exigent shall be awarded, and the chattels shall be sequestered; but, if he or she come, and yield himself or herself, or if he or she be taken before the return of the fourth capias, the goods and chattels shall be saved to him or her; otherwise, they shall go and be vested as by law is hereinafter directed. From 1786, c. 57, 12 Stat. Larg. 340; 1792, c. 74, R. C.; Dec. 27, 1814, c. 31.

27.55. No sheriff, under sheriff, nor escheator, nor any other person, shall take or seize the goods of any person accused, or indicted of or for treason, murder or other felony, except only in such case where he shall be commanded, by the precept of capias hereinbefore directed, to seize the chattels of a person, not in custody, against whom an indictment for any such offence shall have been previously found; upon pain to forfeit double the value of the goods so taken, to him that is so hurt in that behalf, by action of debt to be pursued in any court of record. 1789, c. 30; 1792, c. 74.

28. 17. Upon any presentment, indictment or information in any court

v. Gourd, gen. ct. June T. 1825, 2 Virg. Cas. 470.

* A felony cannot be prosecuted by information. Com. v. Barrett, 9 Leigh, 671.

In proceedings for felony, accused must appear in person. Sperry v. Com. 9 Leigh, 623.

(1) See note (1) on page 263.

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

of record in this commonwealth, the court, wherein the same shall be, may direct all proper process thereon, whether before or after judgment, to the sheriff, or other officer of any county or corporation within the commonwealth where the offender may be found. And the sheriff or other officer, to whom such process shall be directed, is hereby empowered and required to execute the same, and make due return thereof to the court from which it issued. In any case of treason or felony, or other crime to which an infamous punishment is affixed, where a capias shall be directed to a sheriff or other officer of one county, to bring the body of the offender before any court of law in another county, it shall be the duty of such sheriff or other officer, upon the arrest of such offender, forthwith to deliver his body to such court, if sitting, or to the sheriff or jailor of such court, during the recess of the court. The said sheriff or jailor shall receive and imprison the person so delivered to him, in the same manner as if such person had been committed by a warrant from a justice of the peace, or by the order of the court awarding such capias. The sheriff or other officer, in executing this law, may impress as many men, horses and boats, as may be necessary for the safeguard and conveyance of the offender. And the said sheriff or other officer, together with the men so impressed by him, shall have the same compensation for their services and expenses in removing such offender from one county to another, as is provided for the sheriff and guard attending a criminal to the penitentiary, by this act, &c. [See tit. CRIMES, PUNISHMENTS, &c. No. 93, 94, p. 246.] The auditor of public accounts is hereby authorized and required to issue a warrant on the treasury, for the payment of the compensation hereby provided, on the production of a certificate, from the court awarding such capias, ascertaining the quantum of such service rendered, and the amount of such expenses incurred. Jan. 30-April 1, 1812, c. 30.

29.18. When, during the session of a court of law, process of arrest shall be awarded in any criminal prosecution, against the body, either of the accused, or of any witness in contempt, it shall be lawful for any sheriff, or other proper officer, to whom such process shall be directed, to execute it in any part of the commonwealth, whether within, or without, his county or corporation. In the performance of this duty, such sheriff or other officer shall have all the powers given to the sheriff, or other officer, in the next preceding section of this act; and he, and the men impressed by him, shall, in like manner, be paid for their services; except only, that the said sheriff or other officer, for the trouble and expense of travelling out of his county or corporation, to execute the process, and for doing any other act necessary and proper, in the service thereof, and for which no other compensation is provided by law, shall receive a resaonable compensation, to be allowed and certified by the court from which the process issued, and paid out of the public treasury. Rev. 1819.

30. § 21. Every person who may have been, or shall hereafter be, arrested under the following process, that is to say, under any capias issuing from the general court, or any court of law, to compel the appearance of such person to answer any presentment, indictment or information for a misdemeanour not punishable by confinement in the public jail and penitentiary-house, or to hear judgment on such presentment, indictment or information, or under any attachment issuing from the general court, the court of appeals, or any other court of law or equity, to bring the body of such person before such court, may be admitted to bail by the sheriff or other officer arresting him. It shall be the duty of the officer so admitting such person to bail, to take from him and his bail a recognizance in a sufficient sum, regarding the nature of the case, and the estate of the offender, 'not less, however, than two hundred dollars,' condi

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

tioned for the personal appearance of such person before the court from which the process shall have issued, at such time as may be required by such process; and the recognizance so taken shall be returned to the court from which the said process issued. If such sheriff or other officer shall fail to return the said recognizance to the court from which the said process issued, on or before the return day of such process, he shall be subject to the same penalties as if he had failed to return the process itself; and if such sheriff or other officer shall return insufficient bail, he shall be amerced at the discretion of a jury.' Alt. from Feb. 13, 1811, c. 10.

31. § 22. Provided, That nothing herein contained shall be construed to extend to any attachment issued to compel the performance of any decree in chancery, or the payment of any money due to witnesses, or others, by any order, judgment or decree. Ibid.

32. 23. If any such recognizance shall be forfeited, it shall be lawful for the court, into which the same is properly returnable, to proceed thereon in the ❤same manner as if it had been entered into in such court. Ibid.

33. § 54. If any private person having any prisoner in his keeping, arrested for suspicion of felony, treason or murder, and the person that is so arrested, escape by negligent keeping, before that he be brought to the jail, then the person from whom such prisoner so escaped shall be liable to a fine on being found guilty, on an indictment, in the superior court of that county in which such escape was made. 22 Geo. 2, c. 6, § 12; 27 Geo. 2, c. 1, § 37; 1789, c. 30; 1792, c. 74, R. C.

34. 27. When the grand jury shall have presented to the superior court of law a bill of indictment, against any person charged with treason or felony, the court shall cause the offender to be arraigned and tried the same term, if he be in the custody of the jailor, or if he be bailed and forthcoming agreeably to his recognizance; unless they see good cause to adjourn the trial to the next term;t and shall allow him counsel to assist him at his trial, if he desire it.(1) 1786, c. 57, 12 Stat. Larg. 343; 1792, c. 74, R. C.

35. 38. Whensoever, in treason or felony, or other offence punishable by confinement in the public jail and penitentiary-house,' any person shall stand mute on his arraignment, or persists, after being admonished by the court, in not answering directly to the indictment, (m) or shall be outlawed, (n) he shall be considered as convicted, and the same judgment, execu

+ See Moore v. Com. 9 Leigh, 639. Case in which prisoner's motion for a continuance, on the ground of the absence of a witness, was held to have been properly overruled.

(1) On the trial of a question of fact in a criminal case, the accused has a right to be heard by counsel before the jury, and the court has no right to prevent him from being so heard, however simple, clear, unimpeached and conclusive the evidence in its opinion may be; but the court has a superintending control over the course of the argument to prevent the abuse of that or any other right of counsel. Word's case, 3 Leigh, 743, 759, gen'l ct. July T. 1831.

(m) By the law of the United States, (April 30, 1790, c. 36, § 29, vol. 2, Colv. ed. 99; and 3 March 1825, c. 67, § 14; Acts Cong. 69; and 7 and 8 Geo. 4, c. 28, § 2,) standing mute is equivalent to the plea of not guilty. (n) By act of March 5, 1838, Sess. Acts, c. 98, p. 77, it is enacted, that in future

judgments of outlawry shall be rendered by the circuit superior courts of law and chancery of the county or corporation where the proceedings or prosecution may have been had, instead of by the coroner or coroners as theretofore. And by act of March 26, 1839, Sess. Acts, c. 73, p. 46, it is provided that all such judgments shall be liable to be reviewed, corrected and reversed, upon motion, or by writ of error coram nobis, as fully, and to the same extent, as similar judgments rendered prior to the act of 1838.

A person indicted for a trespass with force and arms, may be prosecuted to outlawry. The Com. v. Hale, gen'l ct. June T. 1821, 2 Virg. Cas. 241.

The proper mode of proceeding to outlawry in misdemeanours is, to issue a capias, alias capias, and pluries capias, on each of which the sheriff should return "not found," before issuing the exigent; whereupon the exigent should issue, and if a sufficient number of county courts should not intervene

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

tion, and disabilities, shall take place and be awarded, as if he had been convicted by verdict, or confession of the crime. 1789, c. 30, 13 Stat. Larg. 39; 1792, c. 74, R. C.; 12 Geo. 3, c. 20.

36. § 25. Whensoever an inquest be about to be taken in any court, in which inquest the commonwealth is a party, if he who appears and sues in behalf of the commonwealth will challenge any of the jurors, he shall assign a cause certain for his challenge; and the truth of such challenge shall be judged of by the court; and, if such challenge be sufficient, the juror shall be rejected, or if insufficient, he shall be admitted; and, in either case, the inquest shall be proceeded in. Ibid.

37. § 26. No person arraigned for treason shall be admitted to a peremptory challenge above the number of twenty-four, nor shall any person arraigned for murder, or any offence punishable by confinement in the public jail and penitentiary-house, be admitted to a peremptory challenge, above the number of twenty: and every person, so arraigned for any of the offences aforesaid, shall be admitted to the number of peremptory challenges as aforesaid. And if any person so arraigned, shall challenge, without cause, any above the number hereby allowed, such challenge shall be wholly disregarded, and the juror so challenged shall be impannelled and sworn as if he had been accepted.'(1) Ibid.; and Jan. 9, 1809, c. 4; 1792, c. 74, R. C.; 7 and 8 Geo. 4, c. 28, § 3.

to enable the sheriff to exact the defendant at five successive county courts, a new writ should issue, reciting the first, with the sheriff's return thereon, (which ought to state the manner in which it had been partially executed,) and requiring the party to be exacted from county court to county court, so that with the first he be exacted five times, after which fifth exaction, and before the return day of the exigent, the defendant should be outlawed by the judgment of the coroner of the county, whose name should appear by the return of the sheriff. If errors have intervened in the service of the process, the superior court should not look back into the record for them when a motion is made for the writ of capias utlagatum, but should award the writ if the return of the exigent is accompanied by such judgment of outlawry as the law requires. If the return does not shew such judgment, a certiorari may be directed to the sheriff and coroner requiring them to certify their judgment more fully, so as to make it conform to the truth of the case. The Com. v. Hale, Anderson and Hagerman, gen. ct. June T. 1821, 2 Virg. Cas. 241, 245.

(1) If the court erroneously overrule a prisoner's challenge to a juror for favour, and then the prisoner peremptorily challenge the juror, though the prisoner had not exhausted his peremptory challenge, the error is not cured. A. Lithgow v. The Com: 2 Virg. Cas. 297.

See tit. JURIES, post. If the objection to a juror appears in the form of a principal challenge, the prisoner must prove his allegations by testimony; if it is a challenge to the favour the prisoner appeals to the conscience of the juror on his voir dire. In

challenge to the favour, the juror is not bound to answer any question tending to fix infamy or disgrace on him; and it has been said in England that he is not compellable to answer whether or not he has formed and delivered an opinion, because the disclosure tends to his disgrace. Query. Is this still law in Virginia? But if he may refuse to answer that question it is his privilege, and not the commonwealth's; and if he does not claim it, but answer the question on his voir dire, then the rights of the prisoner are exactly the same as if he had proved the same fact on a principal challenge. Sprouce v. Com. 2 Virg. Cas. 375. See Baldwin's case, 1 Const. R. S. C. 289.

A challenge because the juror has expressed an opinion, is a challenge for principal cause, and need not be accompanied with personal ill will to render it valid. And the juror himself may be questioned on oath touching his opinion. The People v. Vermilyea, 7 Cowen, 108; and S. C. 369; and The People v. Mather, 4 Wend. 229, 238; and Com. v. Knapp, 9 Pick.

A person accused has a right to challenge a juror for cause before he is sworn, and the court is bound to judge whether the cause is sufficient or no to sustain the objection; but when, after a juror has been elected and sworn, and after trial and verdict, the prisoner asks a new trial on grounds of exception against him, existing before he was elected and sworn, such motion is addressed to the sound discretion of the court, and in the exercise of this discretion the court ought to consider the whole case, and be satisfied that justice is done. The Com. v. Jones, 1 Leigh, 598.

A person called to serve as a juror in a

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

38. § 59. Approvers shall never be admitted in any case whatsoever.(o) 1789, c. 30, and Ibid.

39. § 30. Execution of a sentence of death shall not be done in less than thirty days after judgment shall have been given against the prisoner. 1786, c. 57, 12 Stat. Larg. 344; 1792, c. 74, R. C.