
    *Sands v. The Commonwealth.
    January Term, 1871,
    Richmond.
    Jotnes, J., absent, sick.
    i. Statute — Interpretation—“Three Terms.” — The three terms spoken of in the act, ch. 208, § 34, Sess. Acts 1866-67, are three terms after that at which the prisoner is first held for trial. And though a prisoner has been arrested and committed to jail, or gives bail to appear and does appear, or is brought into court, on the first day' of'a term of a court, that term is not to be counted as one of the three terms afbresaid.
    2. Constitution — Effect on Existing Laws in Conflict Therewith. — The third section of the third article of the constitution, in relation to the qualification of jurors, does not operate woprio vigore, and without any legislation on the subject, to repeal all existing laws in conflict therewith; but until such legislation is had the existing law continues in force.
    3. Same — Statute—Venire Facias Should Conform to the Statute.’ — Under the second and fourth sections of the schedule of the constitution, the act in force at the time of the adoption of the constitution regulating juries in criminal cases, not haying been since altered, the venire facias for the trial of a prisoner for felony should be conformed to that act.
    4. Forgery — Evidence—Pecuniary Condition of Obligor. —On a trial for the forgery of a note of H., who is dead, the Commonwealth may prove that H. was prompt in the payment of his debts, and that he owned a large property — real and personal — and was doing a good business.
    5. Same — Evidence—Record of Former Proceedings.— An action at law was brought upon the note alleged to be forged, against the curator of H., and judgment rendered without any defence. A suit in equity was then brought to subject the real'estate of H. to the payment of the judgment; and there was a decree for sale, and sale; in both which suits the prisoner was counsel for the estate; and he purchased a part of the property. The records of these cases, with the testimony of the clerks of the respective courts, were admissible evidence with other evidence, to show the uttering of the forged paper, and the complicity of the prisoner in the uttering of it.
    *6. Uttering Forged Paper — Scienter.—To convict a prisoner of uttering, or attempting to employ as true, a forged writing, it must be shown that the accused, himself, uttered or attempted to employ as true the said forged writing, or was present at the time such forged writing was uttered or attempted to be employed as true, by some other person, aiding and assisting such person to utter or employ the same as true; and it must be further shown that the accused knew at the time that the said writing was in fact forged; and that such uttering or attempting to employ as true, was made or done by him with the intent to defraud. But any assertion or declaration, by word or act, directly or indirectly, that the forged writing is good, with such knowledge and intent, is an uttering or attempting to employ as true the said writing: provided that such assertion or declaration was made in the prosecution of the purpose of obtaining the money mentioned in the said writing.
    7. Jurisdiction of Hustings Court of Richmond. — The County court and Circuit court of Henrico, being held within the limits of the city of Richmond, an offence committed by proceedings in these courts, is committed within the jurisdiction of the Hustings court of the city, and may be prosecuted in that court.
    8. Corroboration of Witnesses — Inadmissible Evidence. —The ex parte settlement of a personal representative, by a commissioner of the court, though it has been confirmed, is not competent evidence to show that a witness not connected with the estate had the means to pay for real estate which he purchased, at a sale made by the person who was personal representative, as commissioner of the court, in order to sustain the veracity of the witness.
    This is an indictment in the Hustings court of the city of Richmond, against Johnson H. Sands, for forgery. It is founded on the same writing on which the indictment against Chahoon was based; and is in totidem verbis, except the substitution of the name of Sands for that of Chahoon. The indictment was found on the 4th of June, 1870, the last day of the May term of the court, and Sands not being in custody, a capias was awarded to bring him into ■ court on the first day of the next term. He was, accordingly, brought into court on the first day of the June term; and during the term the trial, on the motion of the attorney for the Commonwealth, was continued until the September term of the court; and at the September term the trial was continued until the third day of the October term.
    *At the October term of the court, the prisoner having been arraigned, he moved the court to discharge him from custody, and forever from further prosecution for the offence charged in the indictment, on the ground that there had been three regular terms of the court, after and since he had been held upon the said indictment, without a trial of him upon the same. But the court overruled the motion, and he excepted. It appeared that, by law, the Hustings court holds a term every month, except August; and has jurisdiction to try felonies at all its terms. The June term commenced on the 6th day of the month, and the court continued in session until the 2d of July. On the 6th of June, the first day of the court, the prisoner was brought into court; and the first entry on the record of the court of that term, is, that the prisoner, with his sureties, entered into a recognizance for his appearance on the next day. The July term commenced on the Sth day of July, and the court continued its sessions until the 30th of the month, when it adjourned to its September term; and it commenced its September term on the Sth of that month, and continued its session every day until the 30th of that month; on which day the court adjourned until the first day of the October term.
    The prisoner then pleaded, and moved the court to quash the venire facias; which motion the court sustained: and directed another venire facias, commanding the sergeant to summon twentjr-four men. of the corporation, who were qualified to vote and hold ofBce under the constitution of Virginia, &c. Upon the return of this venire facias, the prisoner moved the court to quash it, for errors apparent on its face: but the court overruled the motion; and the prisoner excepted. This .is his second exception. The third exception is to the qualification of a juror; but it was not considered by this court. The fourth exception is to the ^refusal of the court to quash another venire facias; and raises the same question raised in the second.
    In the progress of the trial, the Commonwealth introduced IQmanuel Francis as a witness, who said he knew Haunstein well for several years before his death; they were intimate friends, and he knew his handwriting very well, having often seen him write, and had papers in his handwriting in his possession until a very recent date. Being shewn the bond alleged to be forged, he says he thinks Haunstein never wrote it; and he gave his reasons for it. He was then asked by the attorney for the Commonwealth whether Haunstein was in good pecuniary circumstances at the time of the date of the bond, April 1st, 1861. To which question and to any answer thereto the prisoner objected; but the court overruled the objection; and permitted the witness to answer it; and he said that Haunstein had plenty of money always, and money in bank; was doing a first rate business, and owned six houses and lots in the county of Henrico, in the suburbs of the city; four of the tenements were small, one a large house, and another a good sized house and store, with large lot attached. To this opinion of the court the prisoner excepted. This is his fifth exception.
    After some further statements as to the habits of Haunstein, he was asked by the court the following question : You have said that you knew Solomon Haunstein intimately for a number of years ; that he made you his confidante; and that you were familiar with his business and habits; did you ever know Haunstein to borrow money? To this question the prisoner objected; but the court overruled the objection; and directed thq witness to answer the question : and the prisoner again excepted. This is his sixth exception.
    The seventh and eighth exceptions are the same as *the ninth and tenth in Chahoon’s case. The attorney for the Commonwealth then offered to introduce in evidence the record of the suit in the County court of Henrico, referred' to in the eleventh exception in Chahoon’s case. To the reception of this record as evidence the prisoner objected; and the attorney for the Commonwealth stated that he expected to follow up this record with evidence shewing that the prisoner was representing the estate of Haunstein, and permitted the judgment to go by default. That after-wards, when a bill was filed in the Circuit court to subject the lands of Haunstein to the payment of said judgment, the prisoner, still representing himself as the counsel for said estate, aided the counsel for the plaintiff to procure a decree for the sale of the land, and to subject the same to the payment of said judgment; and did have the same sold under said decree; and received for his assistance, in allowing said judgment upon said bond to' go by default, and for his further assistance in procuring said decree and the sale of said land, a large proportion of said land. And the prisoner thereupon repeated his objection to said record with said accompanying statement. But'the court overruled the objection, and admitted the record: and the prisoner excepted. This is his ninth exception.
    The Commonwealth then proved by the clerk of the County court, Folkes, the bringing of the suit by Chahoon, as stated in the eleventh exception in Chahoon’s case : that the witness marked the prisoner’s name to the case, as counsel for the defendant, before he made out his docket for the March term, 1867: Does not remember whether this was done by order of Sanxay, the defendant, or the prisoner. That, after this was done, Sanxay and the prisoner were in the clerk’s office together, and the prisoner stated that the proper mode to defend the suit was to put in a plea of non est factum, and make affidavit to it; that this was *the only mode of de-fence to the suit. Sanxay replied that he could not do it, because he could not swear that the signature to the bond was not Haunstein’s handwriting. After this conversation Sands did nothing further in the case. After other details, he said the County court at that time held its sessions in the clerk’s office of the court. And thereupon the prisoner moved the court to exclude all the evidence of the said Folkes, along with the said record, from the jury, upon the ground that the said testimony does not tend to prove any utterance of said bond elsewhere than at the county courthouse of Henrico, and at the clerk’s office of that court; both of which places, as he insisted, are, by the law of the land, not within the jurisdiction of the Hustings court; though situated within the corporate limits of the city of Richmond; and because said evidence does not legally tend to shew any uttering or attempting to employ the said bond as true by the prisoner, or any forgery thereof by him. But the court overruled the motion; and the prisoner excepted. This is his tenth exception.
    The Commonwealth then introduced another witness — Temple iQUett — who stated that he was the clerk of the Circuit court of Henrico county; and the Commonwealth then introduced and proved by the witness, as evidence in the cause, the record of a suit in chancer}1-, brought in that court in the name of Gleason, assignee of Thompson, against Sanxay, curator of Haunstein, to have the land-of Haunstein sold for the payment of the judgment which had been recovered against Sanxay, as stated in the last exception. In this suit there was a decree for the sale of the land, and for the settlement of Sanxay’s account as curator. This account was taken, and Sanxay was reported debtor to the estate in the sum of $917 56, as of the 16th of May, 1867. Sanxay, who had been appointed commissioner to sell the real estate, and out of the proceeds *to pay Gleason, or his counsel Chahoon, the amount of his judgment, made his report, by which it appeared that Mary J. Wilkinson was the purchaser of one house and lot at $800, R. S. Sanxay was purchaser of another lot and house at $1,060, William D. Porter was a purchaser of two tenements at $1,275; 'and J. H. Sands was a purchaser of two tenements and lots at $1,200; the nett amount of said sale being $4,079 38. And Sanxay files with his report the receipt of George Chahoon, attorney of Gleason, dated June 15th, 1867, for $4,996 94 — the amount due on his account as curator, and the nett amount of the sales of "the real estate, in part satisfaction of the judgment of Gleason, as-signee of Thompson, against Richard D. Sanxay, curator of Haunstein. These reports were confirmed by a decree of the 29th of October, 1867. To the reception of this evidence the prisoner objected; and thereupon the attorney for the Commonwealth stated that he intended to follow up this record with proof, as set forth in his statement, filed and made part of the bill of exceptions Ho. 9; and the court overruled the objections of the prisoner, which were repeated after said statement was made; and permitted the record to go to the jury as evidence; and the prisoner again excepted. This is his eleventh exception.
    The Commonwealth then proved by the witness that the bill in said case is in the handwriting of George Chahoon; that he never saw Chahoon in connection with the case; that the papers were given him either by Sands or the judge; he thinks by the judge. That there were interlineations in the bill made by Sands; which the witness pointed out. He further stated that the answer of the curator and the two decrees are in the handwriting of the prisoner, as is also the receipt by Chahoon to Sanxay.
    The Commonwealth then introduced Alfred Shield, clerk of the Circuit court of’the city of Richmond, *and tendered in evidence a record of said court in a case pending therein, under the style of Sands v. Page, escheator. This was a petition filed in said court by the prisoner, in July, 1869, to restrain Page, the escheator, from proceeding to have the real estate of Haunstein escheated to the Commonwealth. The petitioner claimed that he had purchased two of the tenements and lots at the sale by Sanxay, and had afterwards purchased from Mrs. Wilkinson the tenement purchased by her at that sale; that the said tenements and lots had been conveyed to him, and he was in possession of them; and he filed copies of the deeds; and he asked that the escheator and the register of the State might be restrained from proceeding to escheat the same. In this case the court, before any answer by the escheator or register was filed, entered a decree on the 17th of July, 1869, perpetually enjoining them from all further proceedings to have the said property escheated. In January, 1870, Page, as escheator, filed a bill of review in this case; and it is still pending in the Circuit court of the city of Richmond.
    To the reception of this evidence, the prisoner objected. And thereupon, the attorney for the Commonwealth stated that he expected to prove by the record that the portion of the real estate of Haunstein which the commissioner reported that he had sold to Mrs. Mary Wilkinson was conveyed by her to the prisoner, and that the deed was in his handwriting; and further to prove that Mrs. Wilkinson never purchased any part of Haunstein’s real estate, nor ever authorized any- one to purchase it for her; and that she never paid or received any money for the same. And thereupon the prisoner renewed his objection to the said record and -accompanying statement of the attorney for the Commonwealth. But the court overruled the objection; and the prisoner excepted. This is his twelfth exception.
    *The record having been read, the Commonwealth proved by Shield that the deed from Mrs. Wilkinson to Sands was written by the said Sands. And the Commonwealth then introduced another witness, Richard S. Sanxay, who testified that he was present at the sale of Haun-stein’s property, ‘made by his father as commissioner; that he bought two lots himself, and that another was bought by him in the name of Mary J. Wilkinson, his mother-in-law, by her permission; that he paid his father, as commissioner, for the said lot, $800 in cash; that he afterwards sold it to Sands, and Mrs. Wilkinson, at his request, executed the deed for it; that Sands paid him for it, paying four hundred dollars in money, and giving for the residue the notes of persons he mentions, amounting to between six and seven hundred dollars ; on one of which he sued, but failed to make anything; and on the other he did not realize more than one hundred dollars. He thought he was present when Sands paid the money on his purchases at the sale to his father, but is not certain of it; thinks it was paid at the office of Mr. Wellington Goddin in this city.
    And then the attorney for the Commonwealth asked the witness why he had bought the said lot in the name of Mrs. Wilkinson. To ■ which question the prisoner objected, on the ground that the said enquiry could not properly be brought in as evidence against the prisoner in this prosecution. And the attorney for the Commonwealth stated that the witness was One of the parties implicated in the matter of defrauding the estate of Haunstein; had been indicted for conspiracy; and he ’was obliged to enter a nolle prosequi in his case, to examine him; that he was a reluctant witness, and the attorney was obliged to examine him as if upon a cross-examination; and that he desired to shew by the witness that this was an arrangement between himself and Sands. And the court being of opinion that the ^witness was reluctantly-testifying in the case, permitted the attorney for the Commonwealth to proceed with his interrogation of the witness; and overruled the objection of the prisoner, and permitted the question tobe asked: and the prisoner again excepted. This is his thirteenth exception.
    The attorney for the Commonwealth further asked this witness whether he had bought one lot in his own name at said sale ; and being answered in the affirmative, he produced and shewed to the witness a writing, as follows: “Received of R. S. Sanxay, the sum of one thousand and sixty dollars, in full of the purchase money of the house bought by him, on the 16th instant, at the sale made by me of the real estate of which Solomon Haunstein died possessed, as special commissioner in the chancery suit of Gleason, assignee, &c. v. Haunstein’s curator, depending in the Circuit court of Henrico. Richard D. Sanxay, special commissioner;” and asked the witness why he had not embraced the money he said he paid for the lot bought in the name of Mrs. Wilkinson in the said receipt. To which question and to this receipt, as evidence against him, the prisoner objected: but the court overruled the objection, and permitted the receipt to be shewn to the witness, and the attorney for the Commonwealth to examine him about it; and directed the witness to answer the question: and the prisoner again excepted. This is his fourteenth exception.
    In the further examination of this witness, after interrogating him as to his business and employment as a soldier during the war, and as a clerk after the war, up to the time of the purchase; and after proving by him that the body of said receipt was in the handwriting of the prisoner; the attorney for the Commonwealth stating that he proposed to prove that the witness had no money, and the receipt was a sham, asked the witness the following ques-
    tion : From what source *did you acquire the money to pay for the lot purchased by you in your name, and in that of Mrs. Wilkinson? To which question and any answer thereto the prisoner objected; but the court overruled the objection: and the prisoner excepted. This is his fifteenth exception.
    After the witness had stated in his direct examination, in answer to the question of the attorney for the Commonwealth, that he got a part of the money from his father, for the board of the child of the witness’ sister, who was a lunatic; that his father recovered a pension due from the government of the United States to the husband of his said sister, whose name was 13liza M. Keith; and that the witness so received about four years’ board of said child; and he produced a paper purporting to be a copy of an account of the settlement of his father, as committee of said lunatic; and in the examination of said witness by the counsel for the prisoner, he asked to be permitted to shew this account to the jury. This was the copy of a report by a commissioner of the Hustings court of the city, dated February 28th, 1867, of the settlement of Richard D. Sanxay’s account, as committee of Flifta M. Keith, a lunatic. The account commenced April 3d, 1866, and came down to January 1st, 1867, and had been filed in the court and confirmed. The witness stated that the original was of record in the clerk’s office of the chancery court of the city of Richmond, where he had seen it recorded that morning; and it appeared that said office was closed for the night, it being then 11 o’clock: The counsel for the prisoner stating that he desired to shew by said account that the sum of $787 SO was paid by said Sanxay, as committee, for said board; and to shew by the witness that that was the sum paid to him. But the court refused to permit the said report, or any item of it, to go to the jury, and refused to permit the witness to be examined ^touching said paper: and the prisoner again excepted. This is his sixteenth exception.
    The Commonwealth introduced another witness — Thomas R. Bowden^who stated that he came to Richmond in May or June, 186S. The attorney for the Commonwealth then asked said witness: Did you ever see R. D. Sanxay at any time in connection with a claim against the estate of Solomon Haunstein? To which question the prisoner objected: and thereupon the attorney for the Commonwealth stated that he expected to prove by the witness that, before the institution of the suit upon the alleged forged i paper, the witness presented this claim to Sanxay, the curator, and claimed payment of it; that the curator pronounced the claim false and a swindle, and denied that the estate owed any money to any one; and thereupon the witness returned the claim to Chahoon, who brought the suit upon it heretofore set forth. But the prisoner still insisted upon his objection to the question, upon the ground that it was not stated by the attorney for the Commonwealth, that he expected to shew that the prisoner was informed at any time of the purport of the declarations of Sanxay to the witness; and if he did claim that he could bring home to, or in any manner connect the prisoner with this conversation, that connection ought to be shewn before putting said conversation in evidence before the jury. But the court overruled the objection : and the prisoner excepted.
    This is his seventeenth exception.
    The witness, Bowden, stated that he presented a claim which he obtained from George Chahoon to Richard D, Sanxay, curator of Solomon Haunstein, for six or seven thousand dollars, in favor of Gleason against the estate of Haunstein. This was in the latter part of the year 1866. Sanxay was very much excited at the presentation of the claim; said the estate of Haunstein owed nothing of any consequence, and *'that the claim was a fraudulent one and a swindle. He never saw the bond which is alleged to be forged, in Chahoon’s or anybody else’s possession, until he saw it in the clerk’s office of Hen-rico county court- after the sale of the property had taken place. He. had only a memorandum of the claim when he had the conversation with Sanxay, and did not then know how the claim was evidenced,, or that there was a bond for it; and did not state to Sanxay its nature further than the amount, and the name of the party who held it. After the interview he returned the memorandum of the claim to Chahoon. He never communicated the conversation with Sanxay to the prisoner, or had any conversation with him at any time about the claim. And then the prisoner moved the court to exclude the whole of the testimony of this witness from the jury, as not competent ag-ainst him. But the court overruled the motion; and the prisoner excepted. This is his eighteenth exception.
    All the testimony for the Commonwealth having been introduced, the prisoner moved the court to exclude from the jury the record of the Circuit court of Henrico in the chancery suit of Gleason, assignee, &c., v. Haunstein’s curator, and all the evidence of Ellett, touching the connection of the prisoner with the said record; and also the record of the injunction suit of Sands v. Page, escheator, &c., and the testimony of Shield in connection therewith; and to direct the jury to disregard the same, so far as they are relied upon by the Commonwealth as evidence to establish any act on the part of the prisoner, of uttering or attempting to employ as true the bond described in' the indictment; the prisoner insisting that the said testimony does not tend to show any acts or act of the prisoner amounting in law to an uttering or attempting to employ as true the said bond or endorsement alleged to have been forged. But the court overruled the motion; and the *plaintiff excepted. The whole evidence of the Commonwealth is set out in the bill of exception; but the statements made, in connection with the previous exceptions, is sufficient to show the bearing of the motion. This is his nineteenth exception.
    When all the evidence, both for the Commonwealth and the prisoner, had been introduced, the prisoner moved the court to give to the jury six instructions; all but the third of which the court gave. The third instruction asked is as follows:
    3. That before the jury can convict the accused upon the second and fourth counts in the indictment, the jury must be satisfied, from the evidence, that the accused himself uttered or attempted to employ as true the said forged writing or forged endorsement respectively, or was present at the time such forged writing or forged endorsement respectively were uttered or attempted to be employed as true by some other person, aiding and assisting such other person to utter and employ the same as true; and in either case that the jury must be further satisfied, from the evidence, that the accused knew at the time that the said forged writing, or the said forged endorsement respectively, were in fact forged ; and that such uttering or attempting to employ as true, in either case, were made or done by the accused with the intent charged in the indictment.
    This instruction the court refused to give, and in lieu thereof gave the following:
    3. That in order to convict the accused upon the second and fourth counts of the indictment, thie jury must be satisfied, from the evidence, that the accused uttered or attempted to employ as true the forged ■writing, or the endorsement thereon respectively mentioned, with the knowledge, at the time of said uttering or attempting to employ as true, that the same were forged, and with the intent therein charged; but any assertion or declaration, by word or act, directly or indirectly, *that the forged writing or endorsement is good, with such knowledge and intent, is an uttering and attempting to employ as true of the said -writing or endorsement.
    To the refusal of the court to give the third instruction as asked, and to the instruction given in lieu thereof, the prisoner excepted. This is his twentieth exception.
    The jury found the prisoner not guilty on the first and third counts in the indictment; but found him guilty on the second and fourth counts; and fixed the term of his imprisonment in the penitentiary at five years. And the prisoner moved the court for a new trial on various grounds ; but it is unnecessary to state them. The court overruled the motion ; and the prisoner excepted. The court certified the facts proved; which were such as are stated in Chahoon’s case, or may be gathered from the previous exceptions.
    The prisoner applied to this court for a writ of error to the judgment, which was allowed.
    Young, and Henry A. Wise, for the prisoner.
    The Attorney-General, for the Commonwealth.
    
      
      As to the propositions laid down in the second, fourth, and seventh headnotes, see foot-notes to the preceding case.
    
    
      
       Evidence — Record of Former Proceedings. — See principal case cited in State v. Henderson, 29 W. Va. 157, 1 S. E. Rep. 232.
    
   CHRISTIAN, J.,

delivered the judgment of the court.

This day came as well the plaintiff in error, by his counsel, as the attorney-general in behalf of the Commonwealth, and the court having maturely considered the transcript of the record of the judgment aforesaid, and the arguments of counsel, is of opinion that there was no error in the judgment of the Hustings court of the city of Richmond in refusing to discharge the prisoner from further prosecution upon the ground that three regular terms of said court had passed without his trial.

The 34th section of chapter 208, of Sess. Acts, 1866-7, is in these words: “Every person charged *with felony, and held in any court for trial, shall be forever discharged from prosecution for the offence, if there be three regular terms of such court, after he is-so'held, without a trial; unless the failure to try him was caused by his insanity, or by the witnesses for the Commonwealth being enticed or kept away, or prevented from attending by sickness or inevitable accident, or by a continuance granted on the motion of the accused, or by reason of his escaping from jail, or failing to appear according to his recognizance, or of the inability of the jury to agree in their verdict. ”

It is provided by law, that “there shall be a term of the Hustings court for the city of Richmond for each month in the year, except the month of August, commencing on the first Monday in the month, and continuing so long as the business before the court may require.”

The record shows that the accused was indicted at the May term, 1870, to wit: on the fourth day of June, that being the last day of the May term. A capias to answer the indictment was at once issued. The record does not show when the capias was executed; but it appears that on the first day of the June term, to wit: on Monday, the 6th day of June, the accused was brought into court in custody of the sergeant of the city of Richmond, under the capias awarded against him on the 4th day of June.

Upon the motion of the attorney for the Commonwealth, the case was continued from time to time until the October term. On the 31st day of October, the accused, being arraigned upon the indictment found against him on the last day of the May term, moved the court to discharge him from further prosecution, upon the ground that three regular terms of the court had passed since he had been held for trial under said indictment. The court overruled this motion; and the prisoner excepted, and brings before this court the *question, What is the true construction of the 34th section of the act above referred to?

It is insisted by the counsel for the accused, that the June term of the said Hustings court must be counted as one of the terms after which the accused was held for trial, because the record shews that, on the first day of that term, the accused was brought into court, under the capias issued on the last day of the May term, and that the first entry made upon the records of the court on that day (to wit: the first day of the June term), was an entry recognizing the accused to appear on the next day; and that the whole of the June term remained, at which he might have been tried; and that, therefore, the June term ought to be taken into the computation, to make up the three regular terms.

The court is of opinion that the accused, in this case, was held for trial, in the Hustings court for the city of Richmond, on the first day of the June term, and not before. He was held for trial in that court, from the moment he was delivered by the officer, charged with the execution of the capias, into the custody of the court,- and not before. While in custody of the officer, under the capias, he was held by that officer, to be brought into court to answer the indictment, and could not be said to be held in court for trial, until actually delivered into its custody. So that, no matter when he was arrested by the officer, he was held in court for trial for the first time on the day he was brought into court in charge of the officer who executed the capias. The law makes it the duty of an officer, who-under a capias from a court arrests a person, accused of an offence not bailable, or' for which bail is not given, to deliver the: accused to the court, if sitting, or to the-jailor thereof, who shall .receive and imprison him. Sess. Acts, ’66-7, \ 20, p. 930.

If the court be in session, he can be said to be held in court for trial, only from the time he is delivered *into the custody of the court. If the court be not in session, and the accused is committed to jail, he cannot be said to be held in court for trial until after the session of the court begins ; for, during the vacation of a court a party cannot be said to be held in court for trial. So, where a party has been committed by a justice of the peace, and sent on to answer an indictment, such party can only be said to be held in court for trial from the time he appears to answer the indictment, if on bail, and if in jail, from the time the court meets in which he may be tried. In any case, the term of the court in which he is first held for trial is not to be computed to make up the three regular terms; but there must be three regular terms after that term, without a trial, before he can claim his discharge. Now, the section under consideration provides that every person charged with felony and held in any court for trial, shall be forever discharged from prosecution for the offence, if there be three regular terms of such court after he is so held without a trial. Each term of a court has a fixed period at which it begins and ends. The term of the Hustings court of the city of Richmond (as prescribed by law) begins on the first Monday in each month, except the month of August, and ends whenever the court adjourns to the next term. The term may consist of thirty days, or ten days, or one day, depending upon how long the court may sit. If the court should adjourn on the first Monday (sitting only one day), to the first day of the next term, that one day is as much a term of the court as if it sat for thirty days. Before a prisoner is entitled to his discharge, under this section, there must be three regular terms — that is, plainly, whole terms; not parts or fractions of three terms, but three entire terms, of such court after he is so held, without a trial; or, in other words, there must be three periods of a session of such court, having a beginning and ending after that term *when he is first held for trial. If the term has commenced (no matter how soon after its commencement the prisoner has been delivered into the custody of the court), that term cannot be counted as one of the three regular terms, after he is held for trial, because a part of that term has already expired and there is but a part of it left; it may be a large part or a small part, depending upon how long the court may sit; still it is not an entire term. And it cannot be said that in such a case a term of the court has passed when only a part of a term has expired: for that would be to hold that a term of a court means a part of a term.

Nor is there any force in the position that, in this case, the June term must be computed as one of the three regular terms after the accused was in custody, because there was sufficient time left, of that term, in which he might have been tried. To adopt this view would be to put the decision in every case upon evidence aliunde, instead of having a uniform rule of interpretation to be applied to all cases. In the language of Judge homax in Bell’s case, 7 Graft. 646, ‘ ‘It seems much better to take some fixed and uniform rule from the language and meaning of the statute, than a rule to be derived from what the court may be supposed, in a presumed state of its business, to have had the capacity to do.” The court is therefore of opinion that the said Hustings court was not in error in refusing to discharge the prisoner.

II. But the court is further of opinion that the said Hustings court was in error in- refusing to quash the venire facias, which, directed the sergeant of the city of Richmond “to cause, to come before the Hustings court twenty-four good and lawful men, qualified to vote and hold office under the constitution of the State of Virginia, each one of whom is twenty-one years of age, to recognize, on their oaths, whether the said Johnson H. *Sands be guilty of the felony with which he stands indicted or not.”

The court is of opinion that the provisions of the constitution, contained in the third section of the fourth article, which declares that “all persons entitled to vote and hold office, and none others, shall'be eligible to sit as jurors,” does not execute itself proprio vigore; but that legislative . action is necessary to put it into operation and give it effect. This would be so, independent of the schedule. But the schedule, which is a part of the constitution, and which limits its operation, contains the following provisions, which, in its own language, were adopted in order that no inconvenience might arise from changes in that constitution. Sec. 2: ‘ ‘All indictments which shall have 'been found, or which may hereafter be found, for any crime or offence committed before the adoption of this constitution, may be proceeded upon as if no change had taken place.” Sec. 4: “All crimes and misdemeanors and penal actions shall be tried, punished and prosecuted as though no change had taken place, until otherwise provided by law.” The second section refers exclusively to crimes and offences committed before the adoption of the constitution. It was not intended, however, as a limitation on the power of the Legislature to adopt a mode of criminal !■ procedure in all cases of crimes and misdemeanors (whether committed before or after the adoption of the constitution) ; but was intended simply to provide that proceedings in the cases therein mentioned might be had; according to the existing law, in the absence of such legislation. The fourth section is a broader and more comprehensive provision, embracing all crimes and misdemeanors and penal actions; and is an emphatic and positive declaration, that they shall be tried, prosecuted and punished, as though no change had taken place, until otherwise provided by law.

*The issuing and execution -of a writ of venire-facias, is certainly a part, and a most important part, of every criminal trial. It is a necessary incident to every trial, and provisions concerning it are always contained in the Criminal Code, under the head, “Trial and its incidents.” It is manifest, that everything relating to the trial of a criminal offence, must, by the very terms of the schedule, be proceeded with under the forms of existing laws, until the Legislature shall make the change. The courts cannot make the change by seeking to conform the writ to a provision of the constitution, which is inoperative -without legislative action; for that would be for the courts to assume legislative functions, and perform a legislative act. Whenever the Legislature shall provided, different mode of criminal procedure, in accordance with the provisions of the constitution, in respect to jurors, then, of course, the proceedings in all cases will be had in conformity to such laws; but, until such change is made, the existing laws remain in full force and effect. The courtis, therefore, of opinion, that the venire facias in this case, instead of being issued in the form set forth in the second bill of exceptions, ought to have been issued in pursuance of the directions of chap. 208 of the Code, as amended by the act of 1866-7, pp. 932, 933; and for this error the said judgment must be reversed.

The court might here conclude this opinion, without taking any notice of the other questions presented by the record. But, as these questions have been fully argued before this court, and as many of them may arise in the future trial of this case in the court below, this court has considered them, and will now proceed to express an opinion upon such of them as are likely again so to arise.

III. It is not necessary that the court should express any opinion upon the third assignment of error, as to *the acceptance of the juror Cunningham, inasmuch as in the new trial to be had this question cannot again arise.

IV. As to the fourth assignment of error, to wit, as to the admissibility of evidence offered by the Commonwealth to show the pecuniarj- condition and habits of Solomon Haunstein, the court is of opinion that the Hustings court was' not in error in admitting such evidence, and in refusing to ex-clude the same from the jury.

V. The court is further of opinion that the Hustings court was not in error, in admitting in evidence to the jury, the record of the proceedings of the County court of Henrico, in a suit upon the alleged forged bond, together with the testimony of Wm. Folkes, the clerk of the said court.

VI. Nor did the Hustings court err, in admitting as evidence, the record of the proceedings of the Circuit court of Henrico, the object of which last named suit was to enforce the judgment which had been obtained on the alleged forged bond, together with evidence of Temple TOllett, the clerk of the said court; the court being of opinion that every act of the prisoner, tending to shew an attempt to employ as true the bond of Solomon Haunstein, alleged to be forged, by seeking in any way, through the courts or otherwise, to subject the estate of said Haunstein to the payment of the alleged forged bond, was legitimate evidence to go to the jury, to be considered and weighed by them, along with the other facts of the case.

VII. The court is further of opinion that the Hustings court was in error in admitting in evidence the record of the chancery suit of “Sands v. Page, escheator,” and that the same ought to have been excluded from the jury as irrelevant to the issue they were sworn to try.

VIII.and IX. The court is further of opinion that *the Hustings court did not err in refusing to exclude from the jury the questions asked the witness, R. S. Sanxay, and his replies thereto, which form the subject of the 13th, 14th and 15th bills of exceptions, in reference to the sale of the real estate of Solomon Haunstein, and his purchase at said sale. Nor was there any error in excluding the paper offered during his examination by the prisoner’s counsel; that paper being an ex parte settlement, by a commissioner in chancery, of the transactions of Richard D. Sanxay, the father of the witness, as curator of a lunatic, one Fliza Keith; and was not only wholly irrelevant to the issue, but was not evidence for the purpose for which it was offered, to wit: to sustain the veracity of the witness, R. S. Sanxay.

X. Upon the 10th error assigned, which presents the question, whether the conversations between the witness, Thomas R. Bowden, and Richard H. Sanxay, who was the curator of Haunstein’s estate (which conversation, it is shown, was not communicated to the prisoner), were proper evidence to go to the jury, the court is equally divided, two of the judges (Moncure and Anderson) being of opinion that such conversation is admissible as evidence, while two (Christian and Staples) are of opinion that it ought to have been excluded; the result being, bjr the decision of a divided court, that there was no error in the Hustings court in refusing to exclude such evidence.

XI. The eleventh assignment of error, as to the motion to exclude the two chancery records, after the close of the Commonwealth’s evidence, raises in another form the same questions which have already substantially been disposed of, and there only remains to be considered

XII. The twelfth error assigned, which is the refusal of the court to give the third instruction asked for bjr the prisoner’s counsel, and the giving another in lieu *thereof. The court is of opinion that the Hustings court did not err in refusing to give the instructions asked for, without explanation or modification. But the court is of opinion that the Hustings court should have given the said instruction entire, in the language in which it was asked, or language of like import, with the following or like modifications added: “But anj' assertion cr declaration, by word or act, directly or indirectly, that the forged writing or endorsement is good, with such knowledge or intent, is an uttering or attempting to employ as true said writing or endorsement; provided that such assertion or declaration was made in the prosecution of the purpose of obtaining the money mentioned in said writing so that the instruction would then read as follows: That before the jury can convict the accused upon the second or fourth counts of the indictment, the jury must be satisfied, from the evidence, that the accused himself uttered or attempted to employ as true the said forged writing, or the forged endorsement respectively, or was present at the time such forged writing or forged endorsement, respectively, were uttered or attempted to be employed as true, by some other person, aiding and assisting such other person to utter and employ the same as true; and in either case, that the jury must be further satisfied, from the evidence, that the accused knew at the time that the said forged writing, or the said forged endorsement, respectively, were in fact forged ; and that such uttering or attempting to employ as true in either case, were made or done by the accused with the intent charged in the indictment. But any assertion or declaration, by word or act, directly or indirectly, that the forged writing or endorsement is good, with such knowledge and intent, is an uttering or attempting to employ as true the said writing or endorsement; provided that such assertion or declaration was made in the prosecution of the purpose *of obtaining the money mentioned in the said writing.

XIII. The court is further of opinion, for reasons given in the opinion of the court in the case of Chahoon v. The Commonwealth, that the offence with which the accused stands indicted was committed, if committed at all, within the jurisdiction of the Hustings court of the city of Richmond.

Wherefore, for the error of the said court of Hustings in overruling the motion of the accused to qtxash the venire facias, as aforesaid, it seemeth to the court here that the judgment aforesaid is erroneous. Therefore it is considered that the same be reversed and annulled; and it is ordered that the verdict rendered by the jury be set aside, and that the cause be remanded to the said court of Hustings, with directions to proceed in the manner prescribed by law, to cause another jury, duly qualified, ■ to come and say whether the said Johnson H. Sands be guilty of the felony wherewith he stands accused in the said indictment mentioned, or not guilty; and further to proceed as the law requires.

Which is ordered to be certified to the said court of Hustings for the city of Richmond.

Judgment reversed.  