
    Morrissett v. The Commonwealth.
    1849. December Term.
    1. A prisoner is sent on to the County court for examination, and the case is twice continued for the Commonwealth. At the third term the proceedings are quashed for irregularity, on the motion of the prisoner. A new proceeding is then commenced against him for the same offence, and at the first term of the examining Court, the case is again continued for the Commonwealth. Held : The prisoner is not entitled to be discharged from the prosecution.
    2. Pleas rejected by the Court are not a part of the record, unless made so by bill of exceptions, or the express order of the Court.
    
      Henry Morrissett was indicted in March 1849, in the Circuit court of Chesterfield, for feloniously stealing two slaves, the property of Thomas F. Robion; and also for carrying the said slaves out of the county of Chesterfield, with intent to defraud the said Robion, and to deprive him of his said property.
    When the cause was called for trial, and before the jury was called, or the prisoner had pleaded, he moved the Court to discharge him from further proceedings, on the ground that he had been detained in prison for three terms of the County court without having been examined; and that the case had been continued on the motion of the attorney for the Commonwealth.
    It appeared from the record of the County court, that the Court had been opened for the examination of the prisoner at the October term 1848, and that the case was continued on the motion of the attorney for the Commonwealth: That the same proceedings had taken place at the November term. That at the December term, the Court, on the motion of the prisoner, quashed the proceedings against him as being irregular and defective ; and on the motion of the attorney for the Commonwealth, the prisoner was detained in custody, and sent before a justice of the peace, by whom he was again committed for the same offence. That at the January term for 1849, the case was again continued on the motion of the attorney for the Commonwealth. That at the February term, the prisoner moved the Court to discharge him, upon the ground that three terms had passed without his having been examined; but the Court overruled the motion, and then proceeded to his examination, and sent him on to the Circuit court for further trial.
    The Circuit court overruled the motion; and the prisoner excepted. He then offered two special pleas in bar, setting out the same grounds of defence as that on which his motion for a discharge was founded. The Court rejected the pleas, and the prisoner did not except ; nor were the pleas made a part of the record by an order of the Court.
    Upon the trial, the jury found the prisoner guilty, and fixed the term of imprisonment in the penitentiary at two years; and the Court sentenced him accordingly. Whereupon he applied to this Court for a writ of error.
   By the Court.

Pleas rejected by the Court are not a part of the record, unless made so by bill of exceptions, or the express order of the Court: And when that is omitted, it is to be presumed that the defendant has waived his pleas. White v. Toncray, 9 Leigh 347.

A prisoner is to be examined at the first term of the Court after commitment, but the examination may be continued by the Court until the third term. Act of 1848, § 2, p. 138. By the same act, §. 8, p. 139, a prisoner may be indicted for the same offence within twelve months after being discharged by the Court of examination.

The writ of error is therefore refused.  