
    Commonwealth v. McKinney.
    December Term, 1851.
    Indictments — Record Not Showing That Defendant Was Indicted — Effect.—An indictment for a wilful trespass was against Joseph McKinney. It was endorsed by the grand jury, an indictment against Thomas McKinney, “a true bill,” and so it was noted upon the record. A writ was issued and served on Joseph, who appeared and moved to quash it. Held:
    ist. Same — Same—Same.'—The writ should be quashed.
    3d. Same — Record—Power of Court to Alter.  — The Court cannot alter the record so as to make it conform to the indictment.
    This was an indictment for a wilful trespass to personal property in the Circuit court of Preston county: and the facts were agreed as follows. At the September term of the Court for 1850 an indictment for a *wilful trespass to personal property against Luke McKinney, John McKinney and Joseph McKinney, was sent to the grand jury, which indictment they returned to the Court with the following endorsement:
    “Commonwealth v. Luke McKinney, Thomas McKinney and John McKinney.”
    “Indictment for wilful trespass to personal property. A true bill.
    “William Royse, Koreman.”
    The record of the Court set out that, The grand jury adjourned on yesterday, appeared pursuant to the order of adjournment, and retired to their room; and after some time returned into Court, and presented an indictment against Thomas McKinney, Luke McKinney, and John McKinney, for wilful trespass to personal property, a true bill.
    A writ of venire facias was issued against the parties, which was served on Luke, John and Joseph McKinney; and thereupon Joseph McKinney appeared and moved the Court to quash the said indictment as to him, or to set aside the service of the venire facias upon him, and discharge him from further prosecution in this cause, for want of any sufficient record of the finding of a bill of indictment against him. Whereupon the Court, with the consent of the said Joseph McKinney, adjourned to this Court the following questions:
    1st. Whether the s.aid record of the finding of an indictment against Luke McKinney, Thomas McKinney and John McKinney, is a sufficient record of the finding of a bill against the said Joseph McKinney to put him to answer the same?
    2d. What is the legal effect of the variance between the record of the finding of said indictment and the indictment itself?
    *3d. Is it competent for the Court by an order now to be made, to correct the error in the record of the finding of the said bill, so as to make the same conform thereto, and to cause the said prosecution to proceed against the said Joseph McKinney with or without further process against him?
    4th. Ought the Court to quash the said indictment as to the said Joseph McKinney, or to set aside the service of said ven-ire facias upon him, and discharge him from further prosecution in this case?
    5th. What judgment ought the Court to render in the premises?
    
      
      Indictments — Failure of Record to Show Defendant Was Indicted — Effect.—Por the proposition thatif the record fails to show that the defendant was indicted, a motion to quash will be sustáined, the principal case is cited and approved in Simmons v. Com., 89 Va. 158, 15 S. E. Rep. 386, dissenting opinion of Phelegar, J., in Gilligan v. Com., 99 Va. 829, 37 S. E. Rep. 962. See also, generally, monographic note on “Indictments, Informations and Presentments” appended to Boyle v. Com., 14 Gratt. 674.
    
    
      
      Record Amendment. — See foot-note to Price v. Com., 33 Gratt. 820, where the principal caséis cited.
    
   ETRRD, J.,

delivered the opinion of the Court.

The Court is of opinion and decides, that the sheriff’s return of the venire facias as to Joseph McKinney should be quashed, and the said Joseph discharged from further prosecution upon the indictment, because it does not appear from the record that the said Joseph has been indicted; and it is not competent for the Court to alter or amend the record in that respect. Cawood’s Case, 2 Va. Cas. S27, and others referred to in 3 Rob. Pr. 98.

We deem it unnecessary to decide any other question.  