
    Morris v. Commonwealth.
    December, 1838.
    Criminal Law — Refusal of Examining Court to Grant Continuance — How Advantage Taken. — The refusal of the examining' court to grant the prisoner a continuance of the case, is no ground for arresting judgment in the circuit court; hut, if available there at all, it should be taken advantage of by plea in abatement or motion to quash the indictment.
    
      Petition for writ of error to a judgment of the circuit superiour court of law and chancery for Chesterfield county.
    The petitioner, being indicted at October term 1838 for larceny, was tried, convicted, and sentenced to imprisonment for two years in the penitentiary. After the verdict was rendered, he moved the court to arrest the judgment against him, on the ground that in the examining court, an application which he made for a *continuance of the cause had been improperly refused. The bill of exceptions taken to the opinion of the examining court was set out in haac verba in the record of the circuit court. On argument of the motion to arrest the judgment, the circuit court held that the examining court did not err in refusing the continuance, and therefore overruled the said motion.
   SMITH, J.,

delivered the resolution of the general court. — It is deemed unnecessary to decide whether the examining court erred in refusing to continue the case on the motion of the prisoner, or whether such an error, if committed, could in any way avail the prisoner in the circuit court ; this court being unanimously of opinion that the plea of errors in arrest of judgment could not be sustained, inasmuch as it suggests matter making no part of the record, but matter which, if the prisoner could have availed himself of it at all, should have been taken advantage of by a plea in abatement, or a motion to quash. Cohen’s case, 2 Va. Cas. 158 ; William Angel’s case, Id. 231.

Writ of error refused.  