GENERAL COURT. VIRGINIA, 1811.

The Commonwealth against Samuel Myers.

An adjourned case, from the Superior Court of Law, for Norfolk county.

WHITE, J. Samuel Myers was indicted before the Superior Court of Law for the said county, for wilfully, maliciously, and of malice aforethought, killing and murdering Richard Bowden.

Being arraigned at the bar, he pleaded three pleas in bar of the indictment. In substance

First, That he had been acquitted by an examining court, duly constituted, of the murder for which he stood indicted, as aforesaid

Secondly, That he had been acquitted by an examining court, duly constituted, of the murder charged upon him by the said indictment, and remanded to take his trial for manslaughter, committed by killing the said Richard Bowden.

Thirdly, That he had been acquitted by an examining court, duly constituted, of the murder and felony, charged upon him by the said indictment.

To all these pleas, the attorney prosecuting for the commonwealth, demurred generally; and Myers joined in demurrer-And because that court was not advised, what judgment to give, of and upon the premises, and considered the questions arising therefrom, and particularly two, which are specially stated, both new and difficult; it, with the consent of the said Samuel Myers, adjourned the said questions, particularly stated, and all and every other question of law, arising upon the said pleadings, to this

court.

By the tenth section of the Act concerning the General Court, and the sixteenth section of the act establishing the late District Courts, those courts had, and of course the Circuit Courts now . have a right, with the consent of the prisoner, to adjourn any question of law arising in a criminal case, to this Court, to be argued and decided therein.

The power of this court on such adjourned cases, is derived altogether from those sections, and cannot be carried beyond a fair and liberal construction of them. We cannot, therefore, decide any question, which may grow out of the record before us, unless it plainly appears upon that record, liberally construed, that the Circuit Court intended to ask our opinion upon such point. Therefore, as the questions submitted to this Court are; First, Those especially stated; and, Secondly, Those that arise upon the pleadings, any questions which did, or might have arisen in the Circuit Court, before the making up of those pleadings, are not before this Court.

However, as questions of that kind have been argued with great ability, by the gentlemen on both sides, and as they seem to be in some measure connected with those actually submitted to us, the Court will not withhold its opinion upon them.

First, It is alleged by the Attorney General, that a prisoner cannot plead more than one plea in bar, if the pleas offered to be pleaded be, in contemplation of law, repugnant to cach other.

Secondly, That the record pleaded in each of these pleas, or a certified copy thereof, ought to have been produced to the Court, to enable it to see that such a record did actually exist, and that in point of law, it offered a complete bar to the indictment. Although these points are somewhat connected with the questions submitted to us, and very important in their nature and consequences, yet it is believed that they do not arise upon the pleadings, as they stand upon this record. How can they be taken advantage of upon a demurrer. The demurrer confesses the truth of the picas. Suppose then for the present, that these pleas are otherwise good, and offer to the Court substantial bars to the indictment; Can any thing be more monstrous than to say, that a man shall be hung, when the attorney has confessed upon the record, that he has No. XIII.

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three different matters of defence, either of which, although they may appear somewhat repugnant, is sufficient in law to forbid it? Or, that he shall forfeit his life for not producing a record, the existence of which the attorney hath in like manner confessed? Besides, as to the repugnancy, how can the Court perceive it? This demurrer must be considered as a demurrer to each plea, and con. sidering it as such, the Court cannot, when applying it to one plea, look into any other. But as to the first of these points, 2 Hale, 239, 248, and 2 Hawkins, 276, 277, sec. 128-the same book, 283, sec. 136, are complete authorities to show, that although a person indicted of a capital offence, may not plead two pleas, deemed by law repugnant, in abatement, yet with respect to pleas in bar, when the Court is satisfied of their truth and efficacy, although they may appear somewhat repugnant, if they do not directly contradict each other, he shall be indulged. For what two pleas, not absolutely incompatible with each other, can be more repugnant than Auterfoit's Convict, on the prisoner's own confession, and not guilty? Yet, when we recollect how often ignorant and timid men have been coerced or deluded to make such confessions in open court, (as for instance in the case of Witchcraft) we shall admit not only the humanity, but the justice of the indulgence.

As to the second of these points, the allegation of the attorney, as now modified, seems to be correct; but cannot avail at this time, in this court. Speaking of the plea of Auterfoit's Acquit. 2 Hale, 241, says, "Stamford tells us, that the prisoner need not have the record of his acquittal in poigne, because the plea is not dilatory but in bar:"But," adds Hale, "if that should be law, it would be in the power of any prisoner to delay his trial as he pleaseth, by pleading Auterfoit's Acquit or attaint, in another court, and so put the King to reply nul tiel record, and then day given over to the next gaol-delivety to have the record, &c. For regularly, if a record be pleaded in bar, or acted upon in the same court, the other party shall not plead nul tiel record but have Oyer of the record; but if it be in another court, he shall plead nul tiel record, and a day given to procure the certificate of the record, or the tenor thereof: But it seems, that for the avoiding of false pleas, and surmises, and to bring offenders to speedy trial in ca

pital cases, the prisoner must show the record of his acquittal, or vouch it in the same court." He then proceeds to show how either may be done.

The first he tells us may be affected by haying the record remov. ed into chancery by certiorari, and having it in poigne. Or by having it sent to the justices sub pede sigilli, and it then goes on to say, if the trial is in the King's Bench, the second may be done, by the court's granting, " a writ of certiorari, to remove the record before "that court, in which case the court will respite his plea until the "record is removed, that he may form his plea upon it, for the re-, ❝cord is a part of his plea, thereupon his plea is put into form, "setting forth the record in certain, (as the attorney general has "said, ought to have been done in this case) by saying, for this, "he voucheth the record of the acquittance aforesaid—At the com. "mand of the King himself sent before the King, and now before, "the King remaining." So that the amount of the authority is, that to prevent delay and false pleas-whenever the plea of Auterfoits Acquit, or Auterfoits Convict, in another court is pleaded, the prisoner shall be ready to prove on the spot the truth of his plea, so far as it respects the record of the former trial. For the record is a part of his plea, and the truth of that must be proved to thei Court, by a transcript of the record duly certified, or the record itself properly brought before the court, and that if this proof is not instantly given, the court will overrule the plea, although for good cause shown it will give him time to plead until the record can be procured.

There is then no doubt with the court, but that the transcripts. of the records pleaded, or the records themselves ought to have been produced to the circuit court when these pleas were pleaded -Nor can the court doubt that they were so produced, not only because the court did not overrule the pleas for want of them, but because the Attorney has demurred to the pleas and thereby ad. mitted their existence.

Having disposed of these preliminary points, it seems most proper to take up the questions actually adjourned, in the order in which they are presented by the record.

The first of these questions, a question which involves considerations of the utmost importance to the criminal jurisprudence of this country, as well as the second plea contained in this record comes before us in this shape.

"Whether a court of examination hath power to acquit a prisoner charged before them with murder, of the murder with "which he stands so charged, and to remand the said prisoner to "be tried in the superior court, for manslaughter, on account of "the same homicide?'

Before we enter upon this subject, it may be necessary to observe that the attorney general has never asserted, nor has it entered into the mind of any member of this court, either that the circuit courts possess an appellate jurisdiction over the decisions of the examining courts, or that any court whatever has à right to annul or disregard the unreversed judgment of another court, be it never so erroneous, when brought incidentally before it, if such judgment was within the jurisdiction of the court which pronounced it. The positions laid down by the attorney general, were these: That the discriminating power contended for is not given to the examining courts either expressly, or by implication, and is not within their jurisdiction. And that rot being within their jurisdiction, if they do attempt to exercise it, their decisions, as to that, are merely void, and binding upon nobody. And surely if the premises are correct, the conclusion cannot be denied.

When entering into the consideration of this important question, it is necessary to premise that these courts of examination are courts unknown to the common law: That they are the mere creatures of the statute law, and cannot upon any principle, exercise any power or jurisdiction which has not been expressly con. ferred on them by that law, or which does not result to them as the means necessary to carry the jurisdiction expressly given to them into effect-These powers they do and must possess, but no

more.

What then is the statute law upon this subject? What are the powers which it hath given to these courts? And what other powcrs are necessary to the due exercise of the powers given?