
    *Philips v. The Commonwealth.
    October Term, 1868, Richmond.
    i. Criminal Law—Murder—Jurisdictions of Circuit Court.—On the 34th of June 1867 P. was committed by a justice of the peace, for examination, upon a charge of murder. The examining court commenced on the 2nd of July, and sent him on for trial before the Circuit court, of the county. At the October term 1867, of the Circuit court, he was indicted for murder, and when he was arraigned he tendered a plea to the jurisdiction of the Cir.cuit court. The court had jurisdiction to try the prisoner.
    a. Criminal Proceedings—Objection to Jurisdiction.— Though the plea tendered by the prisoner was informal and properly rejected by the court, yet the objection to the jurisdiction, being a mere question of law, however made, whether by suggestion or motion ore terms, should be considered and decided by the court.
    3. Statute—Repeal of Law as to Examining Courts —Prospective.—The act passed 27th April 1867, Sess. Acts 1866-67, ch. 118, p. 915,'to revise and amend the criminal procedure, provided that it should go into operation on the 1st of July 1867, and it repeals the law in relation to examining courts. Still a prisoner committed on a charge of murder on the 24th of June 1867, must be committed for examination; and it is proper to proceed, under the former law, in the examination of the prisoner before an examining court, and his trial before the Circuit court.
    
      4. Jiidge—Authority over Jury-After Daily Adjournment.—The authority of a judge who presides at a criminal trial, extends oyer the jury not only during the day whilst they are in court, hut after the adjournment for the day; and it is not illegal or improper for the judge to take charge of a juror In the temporary absence of the sheriffs to-whom the jury has been committed.
    5. Separation of Jurors from Control of Officer—Prima Facie Vitiates Verdict.—Separation of a juror out of the custody and control of the officers having charge of the jury, is prima facie sufficient to vitiate the verdict; and it is incumbent on the commonwealth to refute that presumption, by disproving all probabilities or suspicions of tampering.
    
      6. Statute-To What it Applies.—The act, Code, edi. of 1860, ch. 16, ? 18. upon the construction of statutes applies to cases of repeal of statutes in express terms, as well as to repeals by implication; and it preserves the rights which are inherent in the proceedings; and the proceedings are to conform *to the new law, only when the change would not affect or impair these rights; and this whether the change m the proceedings is criminal or civil.
    At the October term, of the Circuit court of Henrico county for 1867, James Jeter Philips was indicted for the murder of his wife, Mary Emily Philips. After the prisoner was arraigned, and was called upon to answer the indictment against him, he tendered a plea to the jurisdiction of the court, because he says “that by the law of the land, and the statutes in such case made and provided, this honorable court hath no jurisdiction for the trial of said indictment, protesting that he has not, in any manner whatsoever, demanded or assented to such trial, and that he has never been in any manner before this court until the finding of said indictment; and this he is ready to verify,” &c. This plea the attorney for the Commonwealth moved the court to reject, upon the ground that it did not state what court had jurisdiction to try the accused for the offence charged, and for other grounds apparent in said plea; and the court sustained the motion; whereupon, the prisoner excepted.
    After the prisoner had pleaded not guilty, he, by his counsel, moved the court to quash the venire facias upon which the jury, about to be called, was summoned. The writ bore date the 30th day of September 1867; was issued by the clerk of the County court of Henrico, and directed to the sheriff of the county, directing him to summon twenty-four freeholders of the county to appear at the next October term of the Circuit court for the trial of the prisoner. The attorney for the Commonwealth offered in evidence the record of the examining court, by which the prisoner had been sent on for trial. Erom this record it appeared that on the 24th of June 1867, the prisoner had been committed to the jail of the county by a justice of the peace of Henrico county, that he might be examined before the *County court of said county, for the murder of Mary Emily Philips. That the said County court met for the trial of the prisoner on the 2d of July 1867, when the trial commenced, and progressed from day to day until the 13th of the month, when the County court sent him on for trial to the Circuit court of the county. The prisoner objected to the introduction of this record, but the court admitted the evidence, and overruled the motion to quash the venire facias. And the plaintiff excepted to both the opinions of the court.
    After a very protracted trial, the jury could not agree upon a verdict, and were discharged by the court, and the case was continued. It again came on for trial at a special term of the court, which commenced on the 15th of June 1868, and progressed until the 9th day of July following, when the jury found the prisoner guilty of murder in the first degree, as charged in the indictment.
    Several exceptions were taken by the prisoner to rulings of the court; but only one of these was the subject of consideration in this court. This was upon a motion for a new trial, upon the ground of irregularity in the treatment of the jury, and that after the evidence had been fully heard, and before the verdict had been rendered, there had been a separation of said jury, and the absence of one of them from the control and custody of the officers having them in charge.
    It appears from the record, that the jury was made up of persons brought from the counties of Albemarle and Alexandria. When the court adjourned for the day, during the trial, the jury were committed to the charge of the high sheriff and of two of his deputies, who were sworn each day. During the adjournment of the court, the jury were kept in a room in the Exchange hotel, where the judge was staying. On the 3d of July one of the jurors was unwell, and on the morning of the 4th of July the judge called at the jury room *to enquire after him. A juror, Thomas A. Walters, complained to the judge that the excessive heat had produced a sick headache, and asked his permission to sit in the open air on the porch. This was granted, and the juror proceeded in charge of John Smith, one of the deputy sheriffs, to the back porch of the hotel, and whilst they were sitting there the judge took a chair near them. The hotel is built on four sides of a square, with a large vacant space in the centre, and the portico runs along three sides of this square; the juror and the sheriff were seated some fifty yards from the room where the jury were kept, and there were other persons sitting about on the portico, but nothing was said by them.
    A short time after the judge took his seat, as before stated, a portion of the jury came with W. M. McGruder, another sheriff, who complained of being lame, and requested Smith to take charge of those who desired to take a walk. Smith accordingly went with these jurors, and the judge directed McGruder to return to the jury room, where he had left three of the jurors locked up, saying that he would take charge of Mr. Walters; and McGruder accordingly returned. In a few minutes thereafter—the juror estimated them at from three to four —the judge went with the juror, Walters, to the jury room. No conversation in relation to the trial took place between the judge and the juror; and the prisoner, through his counsel, says in his petition for a writ of error to this court, that he does not mean in the slightest degree to impugn the integrity of the judge, for whose fairness and impartial candor he entertains the highest respect. He is advised, however, that an error in law was committed, and he so assigns it for error.
    The court having sentenced the prisoner in pursuance of the verdict, he applied to this court for a writ of error; which was awarded.
    *The case was argued by Guigon, M. Johnson and Crump, for the prisoner; and the Attorney General and Young, for the Commonwealth.
    Guigon for the prisoner:
    In June '1867, James Jeter Philips was arrested in the county of Henrico, charged with the murder of his wife. In the month of June, he was examined by a single magistrate and sent on for examination to the next County court, whose . term commenced on the 1st Monday of July, that being the 2nd day of the month. His examination before the County court commenced on the 2nd of July and was continued until the 13th, when he was remanded by the examining court to the next term of the Circuit court, which met in October. On the 26th of October an indictment was found, and to this indictment, he tendered a plea to the jurisdiction, which set forth that he had not demanded or assented to be tried in that court, and had never been before the court until the finding of the indictment. This plea, the court below rejected, upon the ground that while denying its jurisdiction, the plea set up no other jurisdiction. The prisoner thereupon demurred generally to the indictment and each count, and the court overruled the demurrers. He then moved to quash the indictment, which motion the court also overruled. After pleading to the indictment he moved the court to quash the venire facias, and the attorney for the Commonwealth offered to supplement the record with the record of the examining court; which was objected to, and objection overruled, the record of examining court admitted, and motion to quash the venire facias overruled, and exception taken.
    At the October term, the jury empanneled failed to agree, and the case was continued to a special term in June 1868, when the accused was convicted.
    After the verdict, a motion for new trial was made *on the ground of separation of jury and irregularity in their treatment. The ground of the motion for new trial was, that after the evidence in the case was closed and the argument had begun, one of the jurors who were lodging at the same hotel with the judge, complaining of sickness, asked permission of the judge, who had gone to the room where the jury were, to sit in the open air in the porch of the hotel; that the juror went into the portico with one of the deputy sheriffs, and while they were sitting there, the judge took his seat near them, the deputy sheriff returned to the jury room, leaving the juror and the judge in conversation together, where they remained for about five minutes, when the juror returned to the jury room. It appeared by the affidavit of the juryman that nothing was said about the trial except a compliment by him to the speech of one of the counsel. The place where the judge and juryman were sitting, was a place frequented by the guests and visitors of the hotel, and there were several persons sitting around.
    1st, as to question of jurisdiction. By Sess. Acts 1866-7, pp. 915-946; the whole system of criminal proceedings is changed. Before those acts went into operation (1st July 1867), all felonies were examined by an examining court and tried by the Circuit court. By these acts, examining courts were abolished, § 1, p. 915; and by f 1, p. 931, it is expressly declared that trials for felony shall be in a County or Corporation court. They further provide, that the accused, when before the County court, may elect to be tried before a Circuit court, p. 931. There are also some exceptional cases, where it is provided the Circuit court may try, but they do not apply to the case at bar. By l 16, p. 929, it is also provided that when a prisoner is indicted before a Circuit court by a grand jury, the proceedings must be certified to the County court.
    By the constitution of this State, the Circuit courts *have such jurisdiction only as is given them by the legislature.
    By the provisions of the law just cited, the Circuit courts are disrobed of the power to try felonies, except: 1st. When pending in court on the 1st July 1867 ; 2nd. When the prisoner elects to be tried there. These are the only classes of cases in which felonies can be tried by the Circuit court since the 1st of July. The record shows: 1st. That this case was not pending in the Circuit court on the 1st of July, or until October. 2nd. The plea in abatement and his affidavit show that he never elected to be tried in the Circuit court.
    If then, the Circuit court had no jurisdiction to try this case, the only remaining question to be considered, is: has the question of jurisdiction been properly raised, and is it properly before this court?
    We maintain upon authority that the question of the jurisdiction of a court to try a criminal case may be raised in any of the following forms: 1st. By motion to quash the venire facias; 2nd. Demurrer to the indictment and motion to quash; 3d. Plea to jurisdiction; 4th. General issue; 5th. On motion for a new trial; 6th. On motion in arrest of judgment. In fine that the authorities fully maintain the proposition that w'henever it appears in any manner in a criminal cause, that the court has not jurisdiction, the question of jurisdiction arises and will be considered and decided, and no technical presentation is necessary.
    In this case, the question of jurisdiction first arises on the motion to quash the venire facias, sent forward by the clerk of the examining court to the Circuit court. It may be objected that this motion to quash the original venire facias was on the first trial. The answer to this is, that it stood at the threshold of all trials, shewing that the case was sent up from an impossible tribunal—an examining court, which had been abolished—for trial in a court from which the authority to try had been expressly *taken away by statute. It was not like a bill of exceptions taken during a trial. It was upon a necessary preliminary to any trial and to all trials.
    Objection to jurisdiction, if apparent on record, may be taken advantage of at any stage of proceedings. Martyn v. Com., 1 Mass. R. 347; Lawrence v. Smith, 5 Mass. R. 362; State v. Turner, Wright’s R. 21; Humphrey v. State, Minor’s R. 64; Capron v. Van Noorden, 2 Cranch’s R. 126; Killand v. Capriess, 2 Dall. R. 368.
    2d. On demurrer to indictment, where a court is of limited, local or inferior jurisdiction, the face of the pleadings must show the jurisdiction. Kemp v. Kennedy, 5 Cranch’s R. 172; Albre v. Ward, 8 Mass. R. 86; Powers v. People, 4 Johns. R. 292; Den v. Turner, 9 Wheat. R. 541; Hill v. Pride, 4 Call 107; State v. Hardy, 2 Mass. R. 303. In the last mentioned case the prisoner was arraigned before a single judge, the statute requiring him to be heard and tried before three judges. There was no plea entered except “not guilty;” only a memorandum of the fact that one judge was present at arraignment by the clerk on the indictment. The Supreme court set aside the judgment.
    In Capron v. Van Noorden, it was decided that a court of limited jurisdiction must see that it has jurisdiction. Unless it appear, the Supreme court will reverse, even on application of the plaintiff who sought its jurisdiction. In Lord Coningsby’s case, 9 Mod. R. 95, where there is limited jurisdiction, demurrer will lie. In Queen v. Serra et als., 61 Eng. C. L. R. 53, where there was no plea to jurisdiction or in abatement, after full discussion by common lawyers and civilians, the court held that the Stat. 7 & 8 Vic. ch. 2, which gave the courts jurisdiction of felonies committed at sea, did not authorize a conviction for homicide committed by a foreigner on a vessel captured as a slaver.
    3d. Plea to jurisdiction. It is objected that this plea is bad because it does not show jurisdiction elsewhere.
    *This doctrine only applies to the Courts of Westminster, which, says Bacon, of the King’s Bench, “hath so sovereign a jurisdiction that an act of parliament appointing all crimes of a certain denomination to be tried before certain judges, doth not exclude the jurisdiction of this court, without express words.” Bacon’s Abr., Court of K. B. vol. 2, 690. In Doctrina placitendi 295, “Courts of Westminster must ever be esteemed the Superior courts of the realm; and the supposition is that every thing is done within their jurisdiction unless the contrary especially appears. On the other hand not any thing shall be intended within the confined jurisdiction of an inferior court but what is expressly alleged. In the Earl of Derby v. Athol, 1 Ves. sr. R. 202, Lord Hardwicke said: “Nothing is out of the jurisdiction of this court unless another jurisdiction is shown; but in an inferior court of limited, local jurisdiction, nothing shall be intended to be, which is not alleged to be within its jurisdiction.” So in Bishop of Sodor v. Earl of Derby, 2 Ves. sr. 338, Lord H. referring to his decision in Athol v. Derby, says, “where a plea to the jurisdiction is to a court of general jurisdiction, you must show where the jurisdiction is, but if it is an inferior court, you need only plead thereto and not show where it is.” King v. Hon. Robt. Johnson, 6 East’s R. 583, follows the last named cases.
    Upon these authorities (and many more might be cited) if the Circuit court is a court of inferior, limited, local, or circumscribed jurisdiction, it is not necessary to show another jurisdiction, and the plea which simply denies the jurisdiction is good. By the constitution, the jurisdiction of the ¿ircuit court is not inherent—not original—not absolute, but to be prescribed by law. Such jurisdiction as the law gives it, it has, and no other. Whenever the law changes, its jurisdiction is modified, enlarged or diminished. What was its jurisdiction after the 1st of July 1867, limited or unlimited—general or special?
    *The law, after that date, made its jurisdiction limited and special. The same power that had given it jurisdiction, had taken away its jurisdiction and given it to another court. The jurisdiction which this court assumed had been given by peremptory language to -the County court. This plea, therefore, contains all the requirements of the law and it was error in the court below to reject it.
    4th. The courts have also held that where there is no jurisdiction, “not guilty,” or plea in bar is sufficient. Nabob of Carnatic v. E. India Co., 1 Ves. jr. 372; West v. Turner, 6 Ad. & El. R. 614.
    2nd. Upon the question of separation of jury and power of judge.
    The judge who tries a case has no power by statute over the jury'. The sheriff has by law control of the jury.
    Riotous conduct in the presence of a judge, during recess of court, is no contempt. Stuart’s case, 2 Va. Cas. 320.
    In Dandridge’s case, 2 Va. Cas. 408, it was held to be contempt to offer insult to the judge for an opinion expressed in a case tried by him and on the docket for trial again. All the judges base their opinion upon the public policy, which requires that the judge shall be unbiased and free to decide. Judge Dade in his opinion declares that Com. v. Stuart decides that in intervals of adjournment, during the term, the court is not to be regarded as sitting, so as to subject one to the process of attachment for such conduct to the judge as would have amounted to contempt during the session of the court.
    In Sargeant v. Roberts, 1 Pick. R. 337, the Supreme court of Massachusetts decided, unanimously, that “when the court is adjourned, the judge carries no power with him to his lodgings, and has no more authority over the jury than any other person. ’ ’ This *was a civil case, and the court say “it is impossible to complain of the substance of the communication made by the judge to the jury: and, nevertheless, they reversed the judgment of the court below and set aside the verdict.
    In Cochran v. State, 7 Humph. (Tenn.) R. 544, the facts attending the going at large of the jury are not stated; but the court say “too much strictness cannot be used to keep a jury charged with the life and liberty of q citizen, from mingling with the community during their deliberations ; more especially where there is any excitement against a prisoner.”
    In Jones v. State, 2 Blackf. (Ind.) R. 475, the verdict was set aside, and a new trial granted, because the record did not show affirmatively, that during adjournment from day to day the jury had been placed in the custody of the proper and sworn officers.
    In McCann v. State, 9 Smedes & Mar. R. 465, held that if the jury, or anyr part of it, are with an officer not specially sworn, or have intercourse with third persons, the possibility of influence must be wholly negatived.
    In Moody v. Pomeroy, 4 Denio R. 115, (N. Y.) a civil case, the judge went into the jury room while they were deliberating, and gave instructions, which were correct, but without express consent of parties; though they knew he was going and did not object. New trial was awarded. So in the case of Taylor v. Betsford, 13 John. (N. Y.) 487.
    Hines v. State, 8 Humph. R. (Tenn.) 597, the fact of a separation of a juror being established, the possibility of tampering exists, and prima facie the verdict is vicious; and the affidavit of the juror is not sufficient to show that he had not been tampered with. In this case, the jurors had not been sworn, but had been selected and placed in the hands of an officer. The juror swore he was taken suddenly ill, and conversed with *no one; and when the -officer found him immediately afterwards he was ill. But the court set the verdict aside for this separation.
    Wesley v. State, 11 Humph. R. 502, decides that in case of capital felony, the judge has no power to authorize separation of the jury even with consent of the accused.
    It seems that by the New York statutes, constables are required to take charge of the juries in civil cases. A person other than a constable being sworn in to take charge of the jury by the judge, the Supreme court (Staley v. Barhite, 2 Caines’ R. 221), set aside the verdict on that ground. In State v. Shippen, Drayton’s R. 169, the Supreme court of Vermont set aside the verdict because of the temporary separation of a juror from his fellows. In Hare v. State, 4 How. Miss. R. 187, the Supreme court of Mississippi, Justice Shakey delivering the opinion of the court, set aside a verdict because a person not sworn, was permitted to remain in the jury room for a few minutes in the absence of the sheriff, though it appeared nothing was said about the case.
    When there is a temporary separation of a jury, it is not necessary for the accused to offer any further evidence; the verdict will be set aside because there is a possibility of tampering.
    Chief Justice Shaw, delivering the opinion of the Supreme court of Massachusetts in Commonwealth v. Roby, 12 Pick. R. 406, 519, after commenting on all the authorities, says: “The result of the authorities is, that when there is an irregularity which may affect the impartiality of the proceedings, ’ ’ as “when the jury have improperly separated themselves or have had communications not authorized, or have been exposed to the effect of influence, there, inasmuch as there can be no certainty that the verdict has not been improperly influenced, the proper and appropriate mode of correction or relief is by undoing what is thus improperly, and may have been corruptly, done. ’ ’
    *Eollowing up the Virginia decisions, it was held in Mississippi (Organ v. State, 26 Miss. R. 78), that where a juror separated himself for a few minutes from his fellows, this of itself vitiates the verdict; and the affidavit of the juror is inadmissible to justify his conduct during his absence.
    Eastwood v. People, 3 Parker’s R. 25, relies upon McCaul’s case, and after full examination of all the authorities, lays down the rule that any separation of the jury is sufficient to vitiate a verdict, unless it is shown by incontrovertible testimony, that no injury could have been done; and the oath of the juror is not to be received for that purpose.
    In California, where by statute the jury may separate by leave of court, it was held, People v. Backus, 5 Calif. R. 275, that any separation of the jury, without such leave, vitiated the verdict; and the affidavit of the juror cannot be received to purge his conduct.
    The Supreme court of Minnesota, Hoberg v. State, 3 Minn. R. 262, decided that after the jury have retired to consider of their verdict, the judge has no more right than any other person to communicate with them, without the consent of the accused and his counsel; and this even where the communication from the judge to the jury was merely to inform them that if they wished any information on matters of law they should come into court and ask for it. Because of this communication the verdict of the jury in the case was set aside.
    In Virginia, McCaul’s case, 1 Va. Cas. 272, the General court decided that a temporary separation of a juror, though his affidavit showed that there was no tampering and no conversation about the case, vitiated the verdict; and it was also held that where a juror visited his family in charge of the officer and went up stairs to see his sick child for a few minutes, though he testified that nothing was said during his absence *about the trial, that this was proper cause for setting the verdict aside. In Mills’ case, 7 Iyeigh 751, the jury brought in an imperfect verdict and -were dismissed, but immediately called back before they had left the court room, except one who had gone a short distance with the sheriff; and they then returned and corrected their verdict; this was ground for new trial.
    On the strength of these authorities we submit—
    1st. That except while the court is in session, the judge has no more to do with the jury than any indifferent person.
    2nd. That if there be a separation of a juror from his fellows, not in charge of an officer sworn to keep him in charge, so that there is a possibility he may have been tampered with, it vitiates the verdict, unless by independent testimony it is shown that nothing wrong was done during such separation.—That there was a separation in this case of a juror from his fellows, and from the proper and sworn officers, is clearly proved; and there is no evidence of what transpired during that separation, except the affidavit of the juror himself, who states that the argument of one of the counsel was alluded to. If this be not good ground for a new trial, then this court must not only disregard the adjudicated cases from the highest tribunals of nearly every State of the Union, but must disregard the former decisions of our own highest court—decisions which have been followed and canonized as law by the Supreme courts of many States.
    Young, with whom was the Attorney General, for the Commonwealth :
    The first and most difficult question which is presented in the consideration of this case, is the question of jurisdiction. And while it might be well contended, on behalf of the Commonwealth, that in no one of the numerous modes, in which the point is sought to be ^raised by the prisoner, has it been so presented that this court can consider it; nevertheless in view of the fact that the court has, particularly in its recent decisions, evinced a strong inclination to consider and give lull weight to objections to the jurisdiction in criminal cases, no matter how or when raised, the case will be treated in the argument as if the record of the examining court, upon which alone the question of jurisdiction can be raised, was fully open to the inspection of this court at any and all of the stages of the prosecution in the court below.
    The solution of the question depends upon the proper construction to be given to the act of April 27th, 1867, entitled “an act to revise and amend the Criminal Procedure.” Sess. Acts of 1866-’7, p. 915. Was this act intended to be prospective in its character, and to apply to prosecutions after the 1st of July 1867, the day on which it went into operation; or was it intended to apply in all its provisions to prosecutions originating as well before as after that day?
    In this case, the prisoner was arrested in the month of June, and had his examination before a justice, who determined, on the 24th day of June 1867, to commit for further proceedings. As the law was on that day, the justice had no alternative but to send him to an examining court; and there not being time to call a special session of such court, he was necessarily remanded for examination before the County court at its next regular term, which commenced on the 2d of July: and he acted accordingly. Prom the date of this commitment, his case was no longer within the power of the justice, but was pending in the examining court. See Hamlett v. Commonwealth, 3 Gratt. 82.
    And the question presented is, whether the repeal of chapter 205 of the Code, authorizing examining courts, applies to this case, so as either to destroy the prosecution entirely at that stage, or to require that it be thereafter ^'proceeded with, if at all, under the act of the 27th April 1867. Now this is a question of legislative intention, and this intention, according to the cardinal rules of construction, is the great point to be arrived at. No law will be so construed as to defeat the legislative intent; but to carry it out. The purposes of this act, as declared in its title, were “to revise and amend the Criminal Procedure.” Its avowed object was the promotion of justice; to recognize and punish crimes; not to repeal the statutes concerning them. It recognized an existing status of criminal proceedings, which it sought to revise .and amend, for the furtherance or supposed furtherance of justice. Rrom its very nature it must be regarded as a prospective statute. Its operation was postponed until a future da3r. It recognized an existing state of criminal proceedings, which, until it went into active operation, its framers must have known and expected would furnish the rule of proceeding against persons charged with crime. Nor could they have rational^' expected any change to take place in these proceedings until the new law went into effect. They must, necessarily, have known that criminal proceedings would be in existence and progress in many cases and in various stages, at the time fixed upon for the new law to go into operation ; and it cannot be presumed that it was the intention of the legislature by this new act to nullify all or anything that might have been done, and legally done, in an3r case under the old law towards the trial of a person charged with crime. And if such a result is produced by any given construction of any portion of the new law, that fact of itself would afford the very strongest reason for not adopting any such construction.
    An examination of the structure of the new act will render it manifest that the changes proposed were intended to be prospective in their character and operation. Such is, moreover, the general rule of ■ construction. *1 Bishop on Criminal Taw, g? 66 and 170; Sedgwick on Stat. and Const. Taw, pa. 190, 191. The proceedings for the prevention of crime and for the arrest of a person chargéd therewith, are the same as those contained in the former law. The first step, however, taken by the justice looking to the trial of the accused, is, in cases of felony totally changed. The commitment, which before was for examination, is under the new law a commitment for trial. The examining court which was under the former law a step between the commitment by the justice and the trial of the accused, fell as a necessary consequence of the change in the form of commitment. It is no longer a commitment for examination, but for trial. It is thus apparent that this new system must have contemplated'future prosecutions, at least from the period of commitment. It could not have been intended to apply to those prosecutions in which the very first step taken by the justice was in a totally different direction. The prosecutions intended to be embraced within it, were those in which the commitment could, under the law in force at the time, only be a commitment for trial. Hence, the abolition of the examining court could only with reason be applied to the class of prosecutions in which the commitment was and could only be for trial; in other words to prosecutions in which the commitment was made under the new law and after it went into effect on the 1st July. Ror to apply this repeal of the examining court to cases of prior commitment for the avowed object of examination, would be to make the legislature intend to nullify the prior act of commitment, and declare it inoperative as to its ultimate object. When, therefore, the repeal of the charter concerning examining courts, went into effect on and after the 1st July 1867, it so went into effect as a part and as a part only of the new s3rstem of commitment for trial in the County court; and such repeal must be intended to apply to *those cases, and to those cases only, which could have been legitimately initiated by a commitment for trial; in other words to those cases only in which the commitment took place after the new law went into effect, or after the 1st July 1867. It thus would appear that this repeal had no application to or effect upon the functions of the County court in cases where those functions had been called into existence legitimately by a commitment for examination made prior to the 1st July 1867; and such repeal could not, therefore, suspend or otherwise affect the exercise of those functions in the present case. That court, so far as the present case is concerned, which was then pending in it, remained in existence notwithstanding the repeal, and properly convened and proceeded to examine the accused.
    The provisions of § 18, chapt. xvi., p. 115, of the Code of 1860, concerning the construction of statutes, fully harmonize with and sustain this view. Criminal prosecutions, as well as. civil suits, are embraced within its manifest scope and purpose. It contemplates the existence of former proceedings, inasmuch as it speaks of “proceedings thereafter had,” of convictions and judgments thereafter to be obtained. It plainly intended to leave, unaffected by the repeal of any law, all offences committed before the law passed, all “acts done, rights accrued, or claims arising” before the new law takes effect. These it intends to preserve, not to impair and defeat.
    By reference to the Report of the Revisors, 1847-’8, p. 75, § 21, it will be seen that this section, as originally reported by them to the legislature, contained after and in connection with the words, ‘ ‘save only that the proceedings thereafter had,” the words “in any prosecution, suit or proceeding, whether brought before -or after the new law takes effect;” and thus demonstrating that the section intended to refer to and preserve *all proceedings in prosecutions taken under the old law. These last words are omitted in the section as it fináis passed; but manifestly omitted in pursuance of the system of brevity- attempted by the Code, and because their omission did not affect the meaning of the section. In the note of the revisors to this section, as proposed by them, it is declared that their object was to avoid the repetition of the repealing and saving clauses which occur in the Code of 1819, by enacting a general clause applicable to all statutes. So the effect of this section upon the Code, and upon all future amendments of it, is the same as if its provisions were repeated at the end of every new statute. The court is referred upon this point to Acts of 1847-’8, oh. 27, p. 164; Code of 1849, ch. 216, ? 2; Rev. Stat. of Massachusetts of 1836, p. 800, ch., 146, and notes; Geni. Stats. Mass, of 1860, p. 880.
    But it is insisted on the other side, that under the above provision, the proceedings in this case should have conformed to the new law, after the 1st of July 1867. While it may be true that this conformity should take place “so far as practicable,” yet the question arises was it practicable in the present case? On the 1st July, when the new act took effect, it found the prisoner’s case pending in the examining court, upon a perfectly valid commitment for examination, under the laws in force at the time it was made. Now, by what process can this commitment for examination under the existing law, be converted subsequently into a commitment for trial under a law not in force at the time it was made? Would not this be practically to invalidate a perfectly valid act of commitment for examination, and to enable the justice to commit for trial under a law which had not gone into effect at the time of commitment? Thus the new law would be made, as to this prosecution, to take effect before the 1st of July instead of on that day. Moreover the very character *of the examining court forbade any such moulding of the prosecution. It was a special tribunal with peculiar functions. It might be convened independently of the regular term of the County court, and consisted of a special number of justices, with a jurisdiction of a peculiar character. After a discharge by it, the prisoner could not be thereafter questioned or tried for the offence. .By what process then, could the prisoner, without his consent and without any waiver on his part of its advantages, have been transferred to the County court for trial? Would not such a step on the part of the Commonwealth have furnished just ground of complaint to the prisoner, and have probably been a fatal blow to the whole prosecution? The requirement of conformity to the new law, “so far as practicable,” in its very terms contemplates a condition of things in which such a conformity is not practicable. There was, therefore, no course open for the Commonwealth, particularly in the absence of any motion or objection by the prisoner in the examining court, but to treat the case as unaffected by the new law, and to proceed with the examination.
    The construction contended for by the counsel for the prisoner is liable to the objection that under it the act which went into force on the 1st July 1867, abated all prosecutions then pending at any stage in an examining court. Cases may have been pending in examining courts at the preceding May or June terms, indeed even before April 27th, 1867, the date of the passage of the act, which on account of the absence of witnesses, or other sufficient cause, had been continued from time to time without the examination having taken place. The day the new law took effect might have found an examining court in actual progress of the examination of an accused. In all such cases the prisoner would have been actually at the bar of the examining court. The construction contended for *would in all such cases destroy the prosecution by abolishing the court in which the case was pending, deprive the prisoner of the benefits of the examining court, undo all that had been properly done by the Commonwealth towards his trial, and require and subject the prisoner to a prosecution de novo! There would thus be practically an interregnum established for the benefit of crime; an interval between the old and the new systems, during which felons could be effectually proceeded against under no law ; but in which the justice would be compelled to resort to such devices as that suggested in the petition, the adjournment of the case from one system to the other, from the 24th June to some period in July, though on the first named day he had completed a protracted examination and was ready to commit the prisoner; thus, for the purposes of this construction, perverting the power of adjournment given to him, to purposes foreign to those for which it was obviously conferred. This court will not easily be persuaded that the legislature contemplated a state of things like this; or that such a result is the necessary consequence of the change in the law of criminal procedure which they have made.
    Perry’s case, 3 Gratt. 632, cited by the other side, is not analogous to the case at bar. The change in the mode of summoning and empanneling a jury made during the pendency of the prosecution, in no wise affected any of the previous steps taken in the case. It did not arrest the prosecution or take the case out of any tribunal or jurisdiction in which it was before the change took place. It was a proceeding in the case in the same court and could be conformed to without any difficulty upon the trial.
    Ewing’s case, 5 Gratt. 701, also cited for the prisoner, is in fact authority for the Commonwealth, and is in accord with our construction of the law. It shows that the mode of proceeding in the case turns upon the time *and mode of the commitment. The commitment in that case was under the new law, and after it had gone into effect, and the inference is irresistible that if the commitment in that case had been under the old law, the examining court would have been held and the prisoner remanded under that instead of under the new. The case of Ashlock v. Commonwealth, 7 B. Monr. R. 44, is conclusive against the proposition that this act takes away jurisdiction already conferred and acquired in pending prosecutions. Its reasoning applies with full force to cases pending in an examining court, which had then jurisdiction to hear and determine them upon the principles of that court.
    All the authorities cited on the other side, among them, 1 Bishop’s Crim. Law, \ 100-103 and notes; State v. Slave King, 12th Louisiana Annual Rep. 593; Regina v. Inhabitants of Denton, 14 Eng. L. & E. R. 124, to show that prosecutions .have been arrested by the repeal of the law punishing the offence or prescribing and regulating the mode of proceeding, are answered by the fact, that in none of the repealing statutes affecting them, was there any reservation such as is contained in chapter 16, § 18, of the Code of 1860, before cited, either as to the offence committed or the proceedings had and taken under the old law.
    But it is argued for the prisoner, that eyen conceding the authority of the examining court to sit in this case after the 1st July, still the Circuit court had no power to try him, because by chapter 208, § 1, Session Acts ofl866-’7, p. 931, it is provided that “trials for felony shall be in a County or Corporation court,” except in certain cases, in which the prisoner may demand to be tried in the Circuit court. But this language, comprehensive as it is, by no means necessarily imports that all trials for felony shall thereafter take place in those courts. It must, in the very nature of things, be held to refer to and include only trials in those prosecutions, *which had their inception under this new law. Every such trial must, of necessity, presuppose a commitment for trial by a justice, under the previous provisions of the' law, and an ‘indictment found upon such commitment. Now no commitment for trial could have taken place prior to July 1st, 1867; and consequent^ the trials for felony, which are to take place in the County courts under this section, must be those and those only which take place under commitments made since that day. The indictments under which such trials are to be had, whether found in the Circuit or County courts, must be those referred to in § 16, of chap. 207, Sess. Acts of 1866-’7, p. 929, which, it will be presently shown, are indictments found in prosecutions originating since the new law went into effect. If the proceeding of the examining court was proper in this case, it follows, as a necessary consequence, that the prisoner must be "remanded for trial in the Circuit court under the old law, as that was the only court to which an examining court could remand him. This provision of chapter 208, as to trials for felony in a County court, is, in truth, as much prospective in its operations as any other portion of the new act. It is a part of the new integral system of criminal procedure, and embraces only those cases in which there has been a commitment for trial in the County court. All cases of commitment for examination under the old law must go to the Circuit court for trial, or they go no where.
    It is moreover argued for the prisoner, that the indictment in this case when found in the Circuit court should have been immediately certified to the County court under the provisions of $ 16 of ch. 207 above referred to. The language of this section is comprehensive enough to include, in its literal terms, all indictments found in a Circuit court since the first of July 1867. It is nevertheless apparent that there are classes of cases which cannot be embraced in it. Take the *case of a prisoner examined for murder and sent on to a Circuit court for trial in the month of May or June 1867. His case is confessedly from that time pending in the Circuit court, but he cannot be indicted until the next term of the Circuit court, which does not occur .until after the 1st July 1867. Must a copy of the indictment so found be certified to the County court? Obviously not; for it was a prosecution pending in a Circuit court at the time the act of 1866-7 took effect, and was therefore within the literal terms of l 4, ch. ccxi., Sess. Acts 1866-7, p. 945, which is so much relied upon on the other side. Moreover, in such case, a capital felony, the Circuit court has no power under this section to send the case down to the County court, but must retain it for trial. Moreover, if in the case at bar, the court following the theory of the defence, had certified a copy of the indictment to the County court, it would have been the plain right of the prisoner to have elected to be tried in the County court, or to demand a trial in the Circuit court; in which latter case, it would have been the duty of the court to certify back to the Circuit court, not a copy of an original indictment found in the County court under § 1 of ch. -208 of Acts 1866-7, before referred to, but a copy of a copy of an indictment originally found in the very Circuit court to which this copy of a copy would have been sent for his trial 1 A proceeding so incongruous could surely not have been within the contemplation of the legislature. Moreover, it is fair to infer that when the prisoner has properly had the benefit of an examination before the County court, it could never have been intended that he should go back again to that court, with the privilege of an election between that and the Circuit court as the place of his trial. The provisions of § 16 of ch. 207, must, therefore, have been like all the other provisions of the act, intended as prospective in their operation, and only to apply to indictments found in prosecutions originating *in commitments for trial since the 1st July 1867. It has been argued for the defence, that the Circuit courts have, since the passage of the new law, no further jurisdiction over criminal trials than is specified in § 4, of ch. ccxi., Acts of 1866-’7, p. 245. But it is apparent that this section was not intended to confer jurisdiction on the Circuit courts in pending cases. This jurisdiction they already had, and the repeal of the former law would not, under the operation of § 18 of ch. 16, of the Code, have prevented them from disposing of all the cases, whether of felon3|- or misdemeanor, pending in or cognizable by them at the time the new law took effect. Indeed, but for the provisions of § 4, those courts would have been obliged to have gone on and tried all such cases. The true object of that section was therefore simply to authorize those courts to transfer all misdemeanors and all felonies, except capital ones, to the County courts, to which such jurisdiction had been confided by the new law; thus harmonizing the proceedings in the old cases as far as possible with the new system.
    II. Was any error committed by the court below, in rejecting the plea to the jurisdiction, tendered by the prisoner? It is insisted on his behalf that this was a good plea, and that even if the Circuit court had jurisdiction to try the case, nevertheless the prisoner had the right to raise the question of jurisdiction by a plea, and that its rejection was an error, which should reverse the judgment. But if the question of jurisdiction has been shown to be in favor of the Commonwealth, it cannot be proper to reverse the judgment, even if the plea be a good one. If the plea had been filed, the Commonwealth would necessarily have replied by vouching the record of the examining court, which is the foundation of the court’s jurisdiction; and it cannot be proper to reverse the judgment, merely to allow the question to be presented in a different form, *if this court is of opinion that the record of the examining court sustains the jurisdiction of the Circuit court; for, in that case, the prisoner could have sustained no possible injury by the rejection of the plea. But the plea is not good upon its face, and was properly rejected. The indictment avers, that the offence was committed within the jurisdiction of the court. The plea is, in effect, a simple denial of jurisdiction, without any averments traversing any of the sources of jurisdiction. In its very nature it must state the objections to the jurisdiction, so that the Commonwealth might reply to the specific ground taken, and thus an issue be arrived at. If the indictment alleges jurisdiction, and the plea simply denies it, it in effect amounts to a demurrer. It is impossible in such case to say whether the jurisdiction is denied because the prisoner did not commit the offence in Henrico, or because he had not had accorded to him some privilege to which he was entitled as a prerequisite to the jurisdiction of the Circuit court. The matters of the plea contained under the protestation cannot be considered as averments under any just principles of pleading. The protestation in no manner adds to a plea; it merely excludes the conclusion of the admission of a fact from the failure to deny it. It is a declaration purely collateral to the main pleading, and intended to enable the party to dispute the fact not traversed in another action or proceeding. Stephen on Pleading, p. 235-237. Of so little real substance is it now regarded, that it has been dispensed with by § 25, of ch. 171, Code of 1860.
    But, even if the matters stated under the protestation be treated as averments, the plea is wholly irresponsive as a denial of the jurisdiction claimed. It was manifest upon the face of the indictment, that the jurisdiction claimed did not arise under the new law; for the record shows that the indictment was not found in and did not come from the County court. It is no *copy of an indictment found in the County court and certified to the Circuit court, upon a removal on the demand of the prisoner. ' On'the contrary, it is an original indictment found in the Circuit court. The Circuit court was bound judicially to notice the fact that there was a pending prosecution for murder in it against the prisoner, which had been remanded to it, whether rightfully or wrongfully, from the County court, as a court of examination. If the prisoner desired by a plea to test the legality of this source of apparent jurisdiction asserted under the old law, he should have conformed to the mode in which such objection was invariably raised. He should have pleaded that he had never been duly and legally examined by a competent examining court and remanded for trial in the Circuit court. This he did not do, but confined himself to what was at most a denial of jurisdiction under the new law. It was obvious to the Circuit court that no such source of jurisdiction was claimed by the Commonwealth, and his plea of totally irresponsive and immaterial facts, was properly rejected. Upon the form of pleas to the jurisdiction, the court is referred to 4 Chitty’s Cr. Haw, ed. of 1819, p. 506 to 515; 1 Wentworth’s Pl. p. 51; 4 Ib. 63; 1 Robinson’s Forms, p. 16; Horton’s, &c. v. Townes, 6 Leigh 47.
    III. The only remaining question of difficulty in the case, arises upon the objection of the prisoner that there was irregularity in the treatment of the jury, and a separation of one of the jury from his fellows and from the sheriff. The alleged irregularity in the treatment of the jury consisted in the fact that on one morning of this protracted trial, a juror, oppressed by the heat of the jury room, was permitted by the judge to sit on the portico of the hotel in the company of one of the deputy sheriffs, and that while there, the judge himself took a seat near them with the evident purpose of guarding against any improper communication being had *with the juror. This deputy having been called to walk out with a portion of the jury, and the rest of them being in their room on the opposite side of the portico, attended by another of the deputies, this juror was thus left for a few moments alone with and in charge of the judge himself. This occurred on the 4th July, on which day, the court, for obvious reasons was not in session. We insist that the control of the judge over the jury does not cease for all purposes with the adjournment of the court for the day. In legal contemplation, the jury are, during the whole period of the trial, in the custody and under the control of the judge. And while their actual custody during the recesses which necessarily occur during the dajr for refreshment, and the adjournments for rest at night is under long established practice, entrusted to the sheriff and his deputies; still this temporary custody is subordinate to and in aid of the controlling authority of the court and of the judge. While out of court, and in the absence of the prisoner, it would be a gross abuse for the judge to interfere with the deliberations of the jury upon the case by any communication touching the trial; but it cannot be improper for him to supervise the conduct of the officers in charge of them, and even to aid those officers in reference to the personal comfort and health of the members of the jury, and for the prevention of any improper outside influences. The case of Sargent v. Roberts, &c., 1 Pick. R. 337, and other cases cited for the prisoner on this point, were all cases of interference by the judge out of court with the jury, by instructions or other communications in reference to their duties in the pending trial, and are not authoritj' against the positions maintained on behalf of the Commonwealth.
    .Nor was there any separation of the jury in any just sense of that term, which can vitiate the verdict. In Thompson’s case, 8 Gratt. 637, all the prior .cases in our Appellate courts are reviewed, and the result deduced, *that the question whether separation per se vitiates a verdict in a case of felony had never been authoritativelj' decided in this State at that period. Wormley’s case, 8 Gratt. 714, did not settle it; for that was a case of total abandonment of the whole jury by the sheriff to the company of unsworn and irresponsible citizens. This court can now lay down a rule which is consistent with reason and with the overwhelming weight of authority. There can be no just reason for setting aside the verdict in this case, when there is not even an intimation of any improper influence upon the jury. They were held by the sheriff and his deputies during this trial, extending through three weeks, save that one of them was for a few moments in the immediate charge of the judge himself. Here was no abandonment of the whole jury or any part of it, to the society of unsworn persons, but at most the assumption by the. judge for a few moments and for a temporary purpose connected with the comfort .of the jury, of the custody of one member of it, under all the sanction which the official oath and high character of that officer can afford. Such a circumstance can justly constitute neither “Irregular treatment” nor “Separation” of the jury.
    
    Crump for the prisoner, reviewed the former constitutions and laws of the State on the subject of the jurisdiction of the courts, and deduced from them the conclusion, that at the present day no court in Virginia has jurisdiction in any case except as it is conferred by the statute. He then proceeded: The common law, with some restrictions, was adopted by statute; but no court derives its jurisdiction from the common law. And now there is no court in Virginia which is not a court of limited jurisdiction. *The idea of superior and inferior courts, in the English sense, is abolished. In 1799 the question came' up, 4 Dali. R. 8, where it was held, that though not inferior 'in the English sense, jret the Circuit courts of the United States having jurisdiction on a few subjects, it is therefore to be presumed that the court has not jurisdiction in a case unless it is shown on the record. To the same effect is the case of Sheddeh v. Custis, 6 Call 241. And to show how carefully the court watches this limited jurisdiction, I refer to the case of Railroad Company v. Rock, 4 Wall. U. S. R. 177.
    An acquittal before a court which has no jurisdiction is a nullity. Ryan & Moody 175; 1 Arch. Crim. Pr. 112, 115; 1 Bish. Cr. E., § 666. Then if the examining court had no jurisdiction to examine and remand the prisoner for trial in the Circuit court, the judgment of this court, if it had acquitted the prisoner, would have been a nullity; for the law is express, that he shall be examined before he is tried in the Circuit court. Hurd’s case, 5 Eeigh 715. Por the distinction between a void and a voidable jurisdiction, I refer the court to Griffith v. Frazier, 8 Cranch U. S. R. 23.
    Then how shall the question of jurisdiction be made? I shall not now go behind the plea. Where the plea to the jurisdiction is to the person, or that the cause of action is out of the territorial jurisdiction, then the plea must give a better writ. But in a plea to the jurisdiction in a criminal court, because the law has not given to the court the power to try the case, this is all that is necessary to be stated. 3 Chit. PI. 895, marg. Pleas to the jurisdiction, and pleas in abatement, are always distinguished. Starkie Cr. PI. 342 ; 2 Hale P. C. 256; Poster’s Cr. E. 18.
    There is this great distinction between the former and the present law in relation to the jurisdiction of the Circuit courts in the trial of felonies. By the former, the presumption was that the Circuit court had jurisdiction *of the case; and it was for the prisoner to show grounds for ousting that jurisdiction. By the present law, the presumption is against the jurisdiction of the Circuit court; and the Commonwealth must show the grounds of jurisdiction; and the record must show it. If the cause is sent there from the Countj' court, it, of necessity, shows the fact, because only a copy of the indictment is sent up.
    Then, does it appear on this record that the Circuit court had jurisdiction to try the prisoner. It is not questioned on the other side, that if the provisions of law for proceedings in the trial of felonies, as they existed before the 1st of July 1867, were repealed on that day, that the Circuit court did not have jurisdiction to try the prisoner. Were they not then repealed? There is no doubt that the act of April 27, 1867, to revise and amend the criminal procedure does repeal, in direct' and explicit terms, ch. 205 of the Code of 1860; which contains the whole law in relation to examining courts. Then, is that law continued, notwithstanding this explicit repeal, so as to authorize this prosecution. It is not pretended that there is any provision of the act of April 27, 1867, which continues this ch. 205 in operation. On the contrary, the object in fixing a future day for this act to go into operation, was to prevent the inconvenience which might have arisen if it went into operation at once. It was put into operation at a day when there was nota Circuit court in session. The object of this law was to change the whole procedure in criminal cases; to revise and amend the whole law on the subject. Now when the legislature revises a law, and omits a clause of it, you cannot revive it by construction. Pingree v. Snell, 42 Maine R. 53; Ellis v. Paige, 1 Pick. R. 43.
    But it is said you must construe these laws in the light of the provision in the Code, ch. 16, £ 18, for the construction of statutes. In passing the act of April *27th, 1867, the legislature had before it, nothing but the system of criminal proceedings. It was no part of their work, nor was it in their contemplation to alter the law in relation to crimes; and no part of the law defining or creating criminal offences is repealed or altered. The statute, ch. 16, £ 18, does not give a rule of construction or remedial statutes, nor was it intended it should do so by the revisors. See their 1st report, p. 8. It was intended to preserve the rights as they were, and leave the remedies to the law in existence when the right was sought to be enforced. Then what application can this law have to that of April 27th, 1867, which repeals no law creating or defining a criminal offence, but is confined entirely to the providing the modes of proceeding in the prosecutions of offences. And is it not a reflection upon the legislature to suppose that in revising the law' and providing a whole system of criminal procedure, they should have left it so imperfect as to require a resort to another statute, to aid in carrying out their purpose? There are many instances in the statutes in which, when it was designed to continue the old remedy, it is expressly so provided. And if the laws in force at the time of enacting the new law, are stricken dead how can you proceed under it? See United States v. Fisher, 2 Cranch U. S. R. 358; Wilkinson v. Leland, 2 Peters’ U. S. R. 627; Minor v. Mechanics Bank of Alexandria, 1 Id. 46; The People v. Livingston, 6 Wend. R. 526; Beebee v. O’Brien. 10 Wisc. R. 481.
    M. Johnson, Esq., also argued the case for the prisoner;
    but the reporter was absent, and has no note of his argument.
    
      
      Criminal Proceedings—Objection to Jurisdiction-How Raised.—In Ryan v. Com. 80 Va. 386, the court said: “This instruction raises the question of the jurisdiction of the corporation court of Roanoke City to try and determine the offence, which is charged in the indictment to have been committed on the 27th day of January, 1884. Such question of jurisdiction may be appropriately raised by a motion for instruction; by demurrer; by motion in arfest of judgment on general issue; or by writ of error; the evidence showing that the deceased died on the 27th of January, 1884, as alleged in the indictment. Harris’ Cr. Law, 305; Philips’ Case, 19 Gratt. 519.”
    
    
      
      Statute—Repeal of Law as to Examining Court.—In Chahoon’s Case, 20 Gratt. 733, the court, at p. 785, citing the principal case as authority, said that the only change made by the repeal of the law providing an examining court was, that after the repeal the commitment was for trial whereas before it was for examination.
      
      Statutes—Prospective.—“It is a sound rule of construction, that a statute should have a prospective operation only, unless its terms show clearly a legislative intention, that it should operate retrospectively.” The court, in Tennant v. Brookover, 12 W. Va. 343; citing the principal case. See also, on this point, Richmond v. Henrico Co., 83 Va. 204, 2 S. E. Rep. 26; Murdock v. Franklin Insurance Co., 33 W. Va. 407, 10 S. E. Rep. 777; Stewart v. Vandervort, 34 W. Va. 524. 12 S. E. Rep. 736; Fowler v. Lewis, 36 W. Va. 112, 14 S. E. Rep. 447; Duval v. Malone. 14 Gratt. 24.
    
    
      
      Statutes—Penalties, Forfeitures, Punishments —Applies to Civil and Criminal Cases,—The proposition laid down in the principal case by Rtves, J., that the enumeration “penalties, forfeitures and punishments’’ is not to be restricted to criminal cases but refers as well to civil cases, has been expressly sustained in Mosby v. St. Louis Mutual, etc., Co., 31 Gratt. 634, and foot-note.
      
    
    
      
      Separatum of Jurors from Control of Officer—Prima Facie Vitiates Verdict.—To the same effect as the fifth headnote, see Barnes’ Case, 92 Va. 803, 23 S. E. Rep. 784; State v. Cartright, 20 W. Va. 40; Flesher v. Hale, 22 W. Va. 49; State v. Harrison, 36 W. Va. 733, 15 S. E. Rep. 983; Bennett v. Com., 8 Leigh 745. See also, Epes' Case, 5 Gratt. 676; Tooel v. Com. 11 Leigh 714; Jones v. Com., 79 Va. 213.
    
    
      
      The reporter is indebted to Messrs. Guigon and Young for the note of tbeir arguments.
    
   RIVES, J-

The question of jurisdiction presented by this record is the leading one, and is not without difficulty. It grows exclusively out of the state of the law which is to govern the trial. It is not pretended that *it rests upon facts extraneous to the record, which ought to be pleaded so as to lead to some distinct issue of law or fact; but simply that such is the law of the land; that the court is not competent to try the cause, and has no cognizance of it. The challenge of jurisdiction on this score is fundamental. It is so vital, that I presume the objection, however made, whether by suggestion or motion ore tenus, should be at once entertained by the court, and decided upon the law. I cannot conceive of a judge permitting a prosecution to go on before him when satisfied in any way that he was forbidden by statute to try it. The examination of the laws which he administers, and which he is bound to know, is alone sufficient to determine such a question of jurisdiction. But it is otherwise where the jurisdiction is traversed by facts out of the record, such as relate to residence, the venue, &c., and under our statutes as they were aforetime, the lack of an examining court. Such a defence is appropriate to a plea, as tending by its averments to lead to some distinct issue of law or fact, and admitting of replication and issue. The plea, however, in this record is not of that description. It contains but one direct averment, and that is, that “by the law of the land, and the statutes in such case made and provided, this honorable court hath no jurisdiction for the trial of this indictment.” The protestation I presume can, upon no principle of pleading, stand in the place of an issuable averment. Had it been designed for such an office, the plea would naturally have taken another form, and first denied demand of, or assent to, such trial, by reason whereof this court had no jurisdiction, &c. Even in this form it would have been irrelevant to the indictment. The purport of it could only be, that the accused having been arraigned in the County court had not demanded his trial in the Circuit court: whereas, the prosecution in the latter court was not predicated of such a state of facts, but ^rested on the finding of the indictment in the first instance in this latter court; so that such an averment would have been -wholly immaterial, and should not have been received. The true point to be made under the circumstances, if the accused had wished to bring his case under the proceedings required by the act of 27th April 1867, would have been to ask to be sent back along with the indictment to the County court, to be tried there. But he refrained from any such request or intimation.

But I do not think this plea is susceptible of this interpretation. Its only intelligible traverse is simply of the jurisdiction under the statutes of the Commonwealth. In truth it is a demurrer, though, in form, a plea. As such it seems to me an anomaly. I have not been able to find a precedent for it; nor have the learned and industrious counsel for the plaintiff in error been able in their researches to find any. Now ought the Commonwealth’s attorney to have been required to take issue upon it? If he had been, had he not the right to put in a general replication; namely, that the court had jurisdiction under the laws of the Commonwealth? If so, we should have had the singular spectacle of a legal enquiry into the actual state of the law, made and pursued under the forms of pleading, and that, too, when it is admitted there were other obvious and more appropriate ways of raising such an issue.

JTrom this view, I conclude the plea was not a proper one in that form; and there was no error in rejecting it. But if I be mistaken in this view, and the plea was a good one and should have been received, is there any substantial error in its rejection to the injury of the prisoner? It seems to me not, and for this reason—that the rejection must be taken, as tantamount to a finding of the jurisdiction. It was appropriate for the judge on the submission of the plea, seeing that it purported alone to deny the jurisdiction on the grounds *of law, to refrain from requiring of the Commonwealth’s attorney the formality of a general replication, and to reject the plea because he was satisfied of his jurisdiction. What advantage would it have been to the prisoner to have had this anomalous issue of “jurisdiction or no jurisdiction” formally joined, provided the judge should find against him upon it? And shall we now send it back for this replication and issue, when we must know that the court expressed its adverse finding upon such issue by the rejection of the plea? Such a course, I think, would be frivolous. But still, while I deem the plea informal and improper, I am disposed to accord to the prisoner the full benefit of it in this sense; that however informal or irregular, the judge was called upon by it to consider and decide the question of jurisdiction upon the motion to reject. I also construe its rejection, as a decision against the prisoner on the issue of law which it purported to raise. When this is done, I think, he cannot ask more. The rejection of the plea for matter of form shall not, and ought not to be allowed to put aside this question of jurisdiction. The absolute want of jurisdiction in any form or upon any condition, is confessedly good cause of arrest of judgment, and the execution of the sentence in this case, provided no jurisdiction be found, would be properly characterized, as in such event it was indignantly denounced by the concluding counsel for the plaintiff in error, as judicial murder. This important and interesting question, therefore, lies at the threshold of our enquiries; cannot be evaded, -and must be solved by us some way or other.

It clearly and solely depends upon the effect and application we shall give to the act of 27th April 1867, Sess.- Acts 1866-7, ch. 118, p. 915. It is entitled “an act to revise and amend the criminal procedure.” It doubtless grew, in a great measure, out of the emancipation of negroes, and the policy of obliterating the *preexisting differences in the mode of prosecuting criminal offences when cornmitted by white or free persons on the one hand, and slaves on the other. Accordingly, it commences with the repeal of chap. 212 of the Code, respecting “proceedings against negroes.” See Code, p. 847. It was doubtless apprehended that the multiplication of criminal trials incident to this policy, if cognizable, as before, in the Circuit courts, might abstract too much time from their civil dockets; and this apprehension doubtless led to the transfer of criminal jurisdiction in the main to the County courts. But this transfer did not grow out of any legislative mistrust of these higher courts, but carried with it a distinct recognition of their superior adaptability to such trials, in giving the accused the right, in all the graver enumerated felonies, to demand a trial in them. With this new policy of making all felonies triable, in the first instance, in the County courts, necessarily fell the structure of examining courts; for as they were composed of justices, who also composed the court having original jurisdiction, this preliminary examination was superseded as cumbersome, and inapplicable to the new order of things. Besides, there was another recommendation of the new system in lessening criminal charges; expediting trials for felony, by ordaining them to be had at “any term” of the County courts, which sit monthly. That such was the main design of this act, is shown' by its first clause; at the outset, it repeals without qualification chapter 205, entitled “of examining courts,” and chapter 212, entitled “of proceedings against negroes” ; and then proceeds to amend and re-enact by the same titles, and numbers, the chapters of the Code (with these two exceptions), from 201 (inclusive) to 211 (inclusive) concerning criminal proceedings ; thereby conforming to these prominent changes, the existing provisions of law in the Code.

This act does not, as is usual, take effect from its ^passage; but its operation is postponed by its commencing clause to the 1st of July 1867. What effect it is to have upon prosecutions began before its commencement, nowhere appears in the body of the statute, except in sec. 4 of chap. 211, whereby a discretion is given to the Circuit court, in which any prosecution for a misdemeanor or for any felony not punishable with death, pending therein when this act takes effect, to try it or transfer it to the County court, &c., and a peremptory requirement is made of the Circuit courts to retain trials of all pending prosecutions for capital felonies. Sess. Acts 1866-7, p. 945, 4. What, therefore, was the intent of the legislature in this repeal, must be gathered from the act itself, and the inducements to it. It is to be construed as a whole, and all its provisions must be taken together to arrive at its proper interpretation. The fact that its commencement was appointed for a future day, so far as this enquir3r is concerned, in no wise distinguishes it from an act taking effect upon its passage; for it is manifest that at either date the probability would be equal of pending prosecutions at various stages, where the necessity would arise of determining how far they were affected by the repealing law. The design and operation of this postponement was merely to give a proper notice of the introduction of the new system; it can have, therefore, no bearing upon our present enquiry.

There are two views to be taken of this question, either of which would be decisive of it:

I. Pirst. As to the character of the act, whether prospective or retrospective. This, again is a question of legislative intent, for it is not doubted that it is in the competency of the legislature to make its laws retroactive wherever it does not conflict with the sanctity of contracts under the restrictions of the Pederal and State constitutions, nor with the prohibition of ex post facto laws; but the courts uniformly refuse to give statutes *a retroactive construction unless the intention is so clear and positive as by no possibility to admit of any other construction. Such a retrospective interpretation is greatly discouraged, and the desire and effort of the courts is to give a statute a prospective operation only. Sedg. on Stat. and Const, haw, p. 193. It is admitted that the repeal of chap. 205 is absolute; and if it stood alone, there is ample authority and reason for asserting that all proceedings under the old law, would be instantly abrogated and annulled by the repeal. But this repeal does not stand alone; but is, as I have endeavored to show, part and parcel of a new system of criminal procedure, ordained to go into effect on the 1st July 1867. This repeal is plainly consequent upon the change of the commitment; whereas, under the old law, it was a commitment for examination; now, under the repealing law, it is supplanted and superseded by a commitment for trial. Chapter cciv. of the Code, so far as pertains to the process of arrest, bail, examination or trial before the justice, is literally copied and re-enacted down to the 16th section. There occurs the first and fundamental departure from the old procedure. This 16th section is new in its provisions, while the succeeding sections of the same chapter are again copied from the Code. The change effected by this 16th section, is the substitution of the commitment for trial in place of the previous commitment for examination. It is the key to unlock the meaning of this statute. It is the initial point from which the old and new proceedings diverge. And the moment the legislature decided to commit for trial and not for examination, examining courts were to be dispensed with, and not sooner. The abrogation of them, and the institution of the new mode of commitment are contemporaneous in enactment, and inseparable parts of the new law. Whenever this law was to take effect as to the commitment, it also took effect as to examining courts; and so *long as this law could not affect or alter the commitment for examination, its legal concomitant or incident—the examining court —was unrepealed. Upon what commitment, then, was this act of April 27, 1867, designed to operate? There seems to me but one reasonable answer—upon commitments occurring on or after the 1st day of July 1867. Any other answer would seem to involve the absurdity of conforming by way of anticipation to a law not in operation. And if it does not apply to an anterior commitment for examination, it would be incongruous and inconsistent to attribute to it a retroactive repeal of the legal consequence of such commitment in the appointment of the examining court. In conformity with this reasoning, it was very forcibly urged by Mr. Young for the Commonwealth, that chap, ccviii. in ordaining that “trials for felony shall be in a County or Corporation court,” applied only to trials originated by, and through, this new form of commitment, and not to trials growing out of the pre-existing commitment for examination. This interpretation has certainly the merit of reconciling apparent conflicts between separate provisions of the statute, and relieving it of all possible embarrassments in its operation upon pre-existing prosecutions. I am therefore of opinion that in this view of the act we are justified in restricting its operation to cases of commitment after its commencement, and excluding therefrom pre-existing cases of commitment for examination.

II. As already intimated, there is another view of this question, which may be legitimately taken. It conducts to the same conclusion, and fortifies it, though from another aspect and by a different line of argument. It is not to be imagined, or believed, that the legislature in repealing chapter 205 of the Code, failed to contemplate or provide for the operation of such repeal upon pending prosecutions. It would scarcelj' consist with a proper respect for that body to suppose *them ignorant of the fact, that this repeal would catch criminal prosecutions in various stages of progress, where it might be neither expedient nor practicable to abandon them and adopt the new proceedings in their stead; or to accuse this body of indifference to the obvious difficulties against which it was their province to provide. They had before their eyes, in the Code they were revising in part, the general chapter of Repeal, ccxvi., p. 861, whereby such repeal was not allowed “to affect any prosecution, suit or proceeding pending on the day of its commencement, except that the proceedings thereafter shall conform, as far as practicable, to the provisions of this act. The 4th section of chapter ccxi., it is contended by petitioner’s counsel, is the only provision that was intended to be made for pending prosecutions; but its inadequacy to that end, and its failure to provide for any other cases but those pending in the Circuit courts, are conclusive to rebut and disprove this pretension. Why is it then that this act contains none of the usual provisions for preventing conflict or embarrassment naturally growing out of the substitution of a new criminal procedure in place of the old, repealed; while at the moment of the change, it must have been foreseen that prosecutions would be pending in every conceivable stage? The answer is easy and ready; it was because there was embodied in the Code a canon of statutory construction, which directly applied to this case, and was designed to remove all such difficulties. It was designed to meet contingencies ensuing upon repeals, and superseded the necessity for future legislatures undertaking to prescribe or limit the operation of repealing laws. After its adoption in the Code, it wa.s thenceforth to be taken as a part and limitation of every repealing statute, as much so as if it had been therein re-enacted, unless, indeed, a contrary intent should appear from the statute itself. We are therefore bound to construe the operation of *this repeal as governed by this prescribed rule of construction. It will be found in chapter xvi., $ 18, p. 115, under the head of “Construction of Statutes.”

I shall quote only so much of its language, as I design applying to our present enquiry, omitting for the sake of brevity and perspicuity its reference to “offences, acts, penalties, forfeitures, or punishments under the former law.” Thus abridged, it reads, “No new law shall be construed to repeal a former law, as to any right accrued or claim arising under the former law, or in any manner whatever to affect any right accrued or claim arising before the new law takes effect; save only that the proceedings thereafter had, shall conform, so far as practicable, to the laws in forcé at the time of such proceedings,” &c. This rule, however, is not to be observed, “where such construction would .be inconsistent with the manifest intent of the legislature.” It has been contended that this rule was meant to apply to cases of 1 ‘repeal by implication, ’ ’ or constructive repeals; but I submit that its language is too broad and comprehensive to admit of this restricted sense. Its language embraces every' ‘new law, ’ ’ repealing, whether in terms or by implication, a- former law. Some stress is laid on the term “construed, ” as if it contemplated a case, where the fact of repeal was doubtful and therefore a matter of construction; but this restriction conflicts with the broad design of this section, which was to fix and limit the effect of repealing laws. Again, it is urged that this section served 'only to perpetuate the right, &c., while it changed the proceedings ; but this cannot be so; for if the right were independent of, and separate from, the proceedings, why should there be this saving of the proceedings? The meaning evidently was, that the rights which were inherent in the proceedings should be preserved at all hazards; and the proceedings only to conform to the new law, when such change would'not affect *or impair these rights. The provision made in the Code, ch. 216, p. 861, § 2, for the general repeal of previous acts, throws light upon this subject, and explains the intention of the legislature. This general repeal was not thereby allowed to affect “any prosecution, suit or proceeding pending on that day, except,” &c. The Report of the Revisors (p. 75-6, and note), and the action of the legislature thereon, shows that this 18th clause of chapter xvi. was designed as a general provision to the same end, and though abbreviated, was meant to have the same operation with the limitation in the general repealing act of the Code. The history therefore of this provision, shows that it was designed to meet the contingencies upon a change of proceedings, whether criminal or civil, so as to furnish a rule by which prosecutions or suits might proceed under a former law, though repealed, with the special saving therein stated. It is not unworthy of note, that while in other respects discarding tautologous terms from this clause, so as to render it as concise as possible, the legislature for the first time in this section enlarged the enumeration by adding “claims” to “rights.”

I am not unaware that, in the construction of this clause, it is usual to contend for a distributive rendering of its language, so as to refer these two terms to civil suits alone. I am not prepared to assent to this, and would beg leave to express my individual views of it, upon which my brothers express no opinion.' In the first place, it is clear that the preceding enumeration of “offences, acts, penalties, forfeitures and punishments,” is not,” on the other hand, to be restricted to criminal cases alone, because the terms, “acts, penalties and forfeitures,” are referable to many civil remedies or proceedings. It seems to me that both classes are treated interchangeably; and the.intent is to save from the operation of a repealing law “the rights or claims” of parties either in a public ^prosecution or private suit pending under the former law, with the exception indicated. I concede that we cannot well conceive of an accused having such a right to a particular mode of trial as to make a legislative change thereof an ex post facto law, and therefore unconstitutional. The bare statement of such a pretension, is sufficient to refute it. This was Perry’s case, 3 Gratt. 632, that has been, in this connection, relied on by the counsel of the plaintiff in error. All that it decided was that a change in the mode of selecting venires introduced in a pending prosecution, was not ex post facto; and that the constitutional inhibition applied to crimes and punishments and not to criminal proceedings. While this case negatives the idea of any right of the accused to any pre-existing mode of trial so as to divest the legislature of the power to alter it in consequence of the constitutional prohibition of ex post facto laws, it by no means goes to the extent of denying that there may be “rights or claims” of the accused that are to be preserved and respected under this rule of construction. It is one thing to assert a right for the accused by virtue of this constitutional provision; and quite another to contend in his behalf for rights or claims secured in pre-existing proceedings by virtue of this rule of statutory construction. The question is not whether the legislature has the power to divest such rights, but on the contrary, whether conceding the power, it has exercised it, or refrained from it by leaving them to be adjusted by the former law in spite of its repeal, and through the effect to be given by construction to the repealing law. Hence, it does not conflict with the decision in Perry’s case to hold that this 18th section preserves privileges, rights or claims arising out of and attached to proceedings under the former and repealed law.

ISiow at the time of the arrest in this case, the justice was necessarily governed by the old law ; he was bound *to conform to it. It was not for him to anticipate an enactment to take effect at a future day. It will not do to say, that by his authority to adjourn the trial for a period not exceeding ten days, he could conveniently have passed over the expiring days of the old law. Such a device with such a purpose would have been justly reprobated, as an evasion of official duty and an abuse of official power. It was incumbent on the justice and so made by the 12th section of chap. 204, &c., to proceed “so soon as may be” with the examination of witnesses, &c. ; so that, in my view, it would have been reprehensible and unjustifiable in the justice to have delayed the trial before him for any such purpose. If the old and the new law could not be dove-tailed together, and there was likely to be embarrassment or difficulty in reconciling them, one to another, it was plainly no business of the justice ; the consequences, let them be what they might, rested with the law makers. He could not go out of or beyond the existing law. That required him to commit for examination. The act of the justice, then, in sending the prisoner to an examining court, was plainly regular and unexceptionable. But it seems this court convened on the 2nd of July 1867, after the repeal of the chapter authorizing such a court or such a trial. How, then, was the prisoner affected by this state of things? While I do not pretend that it was incumbent on him to assume any, the slightest responsibility in giving a direction to his trial, I do hold that this examination was an advantage or privilege to him, which in a certain event he was allowed to waive. It was a substantial one. Besides the promptness of the trial, it was attended with this advantage, that upon his discharge by this court, “he could never thereafter be questioned or tried for the same offence.” This view is, I need not say, predicated of the validity and legal existence of this examining court. With the advantage, however, of trial, the accused ^necessarily took the chances and incurred the risk of being remanded for further trial.

In this posture of affairs, the question arises whether the abrogation by repeal of examining courts should be allowed to affect the rights or claims of the accused to such trial, arising from his commitment for examination under the former repealed law. I have already endeavored to show that, in my view, these “rights or claims” might attach to criminal as well as civil proceedings. If so, they were preserved from the operation of the repealing law. The only difficulty is, whether the claim of the accused to this preliminary examination is such a right or claim as was meant to be preserved to him by this rule of statutory construction. I am of the opinion, for the reasons already given, that it is. If then the prisoner had insisted on the 2d of July to his claim to this trial, by virtue of the former law, could it have been legally or rightfully refused to him? If the Commonwealth had chosen to disband the examining court, because annulled by the act of 27th April 1867, would it not have violated this principle of construction, and injuriously affected the claims of the prisoner? These were grave and difficult questions. My course of reasoning has sufficiently indicated how I would have solved them. It was for the Commonwealth, without any appeal to the prisoner, or any presumption from his ^silence, to take her own course with his trial. She has done so; she has accorded to him the privilege of this trial, and has thus resolved whatever doubt rested upon the case in the prisoner’s favor; as she was bound to do. The case would have been different if the accused had chosen to deny the authority for this examination, and asked to be committed for trial in the County court; and in such event, doubtless, the same consideration would have dictated compliance with his request, and displayed the propriety of conforming the proceeding to the new law. But no *such step was taken by him or his counsel; and the Commonwealth was left free to resolve whatever doubt might be alleged to exist in the matter in favor of the prisoner as she did. Hence, though my view be incorrect as to his title to this examination, it must be admitted that he has no cause to complain of the course that was taken under the circumstances. The result therefore is, that he was legally remanded to the Circuit court for trial.

But when he got there, did the requirement of conforming to the laws, then in force, demand his remitment to the County court? I will not say that his silence or acquiescence in the examining court es-topped him from thereafter objecting to its jurisdiction, or tije legality of his remanding. But in pronouncing upon the rightfulness of his arraignment in the Circuit court, I do insist that it is material to consider that he raised no question by habeas corpus as to the legality of his imprisonment, or before his arraignment challenged the validity of the sentence through which he reached the Circuit court. Being there then by virtue of a proceeding, the benefit of which he had, and in conformity as I think with the law as it should be .construed, he was bound to answer to the indictment, in that court. Had he made a demand upon the finding of the indictment to be remitted to the County court for trial, the question would have arisen whether the proceeding could be so far - conformed at that stage to the new law. But he made no such demand. It seems on the contrary, from the character of the plea, that the prisoner’s counsel avoided the averment of any wish or demand on his behalf for a trial in the' County court. Perhaps it may have been inconvenient to distinctly prefer such a demand, as, it might be foreseen, it would most probably have been soon followed, if granted, by a return on his motion to the same court for final trial. Therefore the silence of the record on this point denotes ino little forensic strategy, of which none can complain, or refuse to allow the prisoner the benefit, if any can be derived from it. But it was the province of the judge to forecast and to avoid, if proper, any unseemly shifting of the judicial scenes. The duty of conforming to the laws then in force pertained to his judicial discretion, into the proper exercise whereof it is, however, our business to enquire. The existence of such discretion is sufficiently indicated by the express qualification, “so far as practicable. ” If the Circuit court were rightfully in possession of the case, where the propriety or necessity of sending it back7 As the prisoner had the benefit of the examining court, without any challenge of its validity or authority, it was in consequence thereof he was triable before the Circuit court; and in that sense it was not practicable to conform to the new law in this particular.

But it is said that it was incumbent upon the court, under the 16th section of chapter 207,' of this late act to “certify the indictment as soon as found to the Court of the county in which the offence is charged to have'been committed.”

Without pausing to solve the doubts that have b.een suggested upon the construction of this section, it is sufficient to say, that it does not embrace all cases. For instance, it is obviously qualified by the 4th section of ch. 211, retaining for trial in the Circuit court, pending prosecutions for capital felonies. We must, therefore, construe this provision in connection with other parts and the general frame of the act, from which I infer it does not embrace a case like this emanating from an examining court, and thus being a proceeding protected from the operation of the repeal. Had this examination transpired in June, the case would thereafter have been pending in the Circuit court, and as such, not liable to the operation of the 16th section. The examining court upon remanding was functus officio; *and the case must thereafter have been in the Circuit court, to which it was remanded, unless indeed there be some sort of judicial limbo for the receptacle of such cases. This then would have been a case, where this direction broad as its language is, would not have applied because of its conflict with the required trial in the Circuit court. By parity of reasoning it should not be construed as applicable wherever the Circuit court is authorized to try. Besides, I have endeavored to show that it is quite immaterial in what stage the repeal should happen to catch the proceedings upon a commitment for examination. They are, thenceforth, to follow the old law, except so far as the court shall find it practicable, to conform them to the new.

Further it has been asked, what function does the 4th section of chap. 211, respecting prosecutions pending in the Circuit court, perform: or is it not superfluous, if this rule of construction is to have the effect attributed to it? There is another and distinct operation for this section; it is by no means superfluous. The first part of it, confers in cases of misdemeanors, &c., a discretion to try, &c.,' and the concluding sentence, if not used ex abundanti cautela, has the effect and was so designed, to take prosecutions for capital felonies out of the saving of the 18th section of chap. xvi. of the Code; so as to relieve the court of any necessity of seeking to conform the proceedings to the new law. Besides, it has been seen that this 4th section of chap. 211, of the late act, is limited to the Circuit courts; whereas, this statutory construction has a wider scope and embraces proceedings elsewhere.

From this two-fold consideration of this question of jurisdiction, I feel warranted in concluding that the Circuit court, to which the prisoner had been remanded for trial, had jurisdiction to try his case, notwithstanding the repeal of examining courts by the late act.

I have thus endeavored to dispose of the only question *brought up to us as'a matter of pleading from the record of the first trial, which owing to the disagreement of the jury, was a mistrial. I come now to consider the only remaining assignment of error upon the record of the second trial, which eventuated in conviction and sentence. This grows out of the seventh and last bill of exceptions to the refusal of the court to grant a new trial for irregularity in the treatment of the jury and for a separation of the jury. The separation consisted in this, that the judge having allowed a sick juror accompanied by a sheriff, to leave the rest of the jury and sit upon the portico of the hotel, where the judge joined them, and soon sent the sheriff back to the jury room, saying he would take charge of the juror; and that accordingly the judge in some few minutes accompanied and saw the juror back to the jury room and delivered him over to the sheriff. I presume the charge of “irregularity in the treatment of the jury” is limited to this temporary custody of the juror which the judge assumed; and has no reference to the frequent kind and considerate visits he made to the jury room, in the presence of the sheriffs, to look after the corn-fort of the jury, enquire after the sick, and accompany physicians who were called in to their treatment. Such attentions were altogether proper, and have not been challenged, in the argument of the counsel for the plaintiff in error; so that in view of the generality of the charge and the evidence in this point in the record, it is proper to state that this objection of irregularity is confined, as I understand it, to the temporary charge which the judge under the circumstances took of the juror.

This brings me to consider what are the powers and duties of a judge respecting a jury in a criminal cause under trial before him, both in and out of court. It is his appropriate function to preside over the jury while empanneled in court. He literally has the custody and *oversight of them while sitting, and has no need of a sheriff save to attend a juryman, who may be called off, or to conduct the jury to their room. So when he leaves the bench for a recess during the day, it is not usual, I believe, to swear the sheriffs in charge of them, because in contemplation of the law, the court is still in session; there is no record made of the adjournment; and the jury is still under the charge and supervision of the judge. The whole term is in like contemplation’of law but one day; and if it were possible to hold a continuous session, there would be no necessity of confiding the jury to any one but the judge. He is the high and responsible functionary entrusted with the conduct of criminal trials, and bound to preserve the purity of jury trial and place it beyond suspicion of all improper interference. It would be well for the protection of prisoners and the behaviour of juries if it were possible for the judge to keep them. Instead of its being said, he is the last man who should have charge of a jury, he is the first and best, and the very one to whom the charge is confided by law. But it is not possible for him to discharge the functions at all times; hence, has grown up the custom of committing the jury on the adjournment of the court for the day, to the sheriff sworn to “keep them, and neither speak to them nor suffer any other person to speak to them touching any matter relative to the trial until they return into court.” By whom are they thus committed? assuredly, by the judge, ! ‘with the consent of the prisoner and for reasons appearing to the court. ’ ’ At all times, in and out of court, the judge is constructively presiding over the jury and protecting their deliberations from all improper influence. No one but he, has charge of them in court; and upon adjournment, it is his order by which they are committed for the night or interval between the adjournment and sitting, to the sheriff; and it is by his authority the oath *is required of the officer who is to keep them. It is only from the necessity of the case and the fitness of things they are taken from him during the adjournment of his court. From this theory of his office in jury trials, it can scarcely be that his oversight and superintendence are suspended by the adjournment of the court. He has many legitimate modes while in session, through instructions and charges to influence their finding, but no semblance of authority to approach them corruptly; so in his recess, he can have his eye upon them and exert a superintendence over them and their custodians so as to maintain the purity of the trial and the sanctity of their deliberations; but by no means to tamper with their verdict or seek privately to influence them. The possibility that such abominable practices may occur on or off the bench, cannot be accepted as a reason for doubting or impairing the authority which the law gives a judge for quite a different purpose, namely, to advance rather than pervert the course of justice. I am, therefore, of opinion that it is in the competency of a judge out of court as necessity or occasion may require, to direct, superintend and charge jurymen and other officers of the court in matters pertaining to their official conduct and behavior out of court; so that a disobedience of his lawful commands, in such respect, would be an obstruction to the business of the court, and a contempt thereof. Nor is there anything in the decisions of this court that have been quoted to that end, calculated, when rightly considered, to impugn this position. These views are sustained and strongly presented in a case from Wisconsin (Barrett v. State, &c., 1 Wisc. R. 181), which I quote not as authority, but for. its apposite reasoning on this point. The question was, whether the court having adjourned to the next day, the judge upon being informed at night by the sheriff that the jury had agreed, could presume the business of the court, and receive *the verdict in open court, in the usual presence of the prisoner, &c., but in the absence of his counsel during the night of such recess. It was decided that he could; and I now quote a passage from the opinion of the court as apposite to this case and corroborative of my position. “For all general purposes, the court is considered in session from the commencement till the close of the term. The jurors, officers and parties, are all under its direction. To hold that an adjournment for refreshment suspends the functions of the court during the term of such adjournment, would be to open the door to a multitude of evil practices, and to throw off all those salutary restraints which have been found necessary to the due and solemn administration of justice. Even in this case, the jury were as much under the control and protection of the court after its adjournment for the night as they were before it. It was the authority of the court, which kept them together; and that authority continued from the time they were empanneled till they were discharged; as much during the recess as during the active labors of the court. Suppose between the hours of seven and eleven o’clock of the evening of the 30th of March, the room in which the jury were deliberating had been surrounded bj’ rioters or tumultuous persons for the purpose of influencing their deliberations, or of interrupting their discussions, would not such persons be punishable for contempt of court? Yet they could not be guilty of contempt if the functions of the court were altogether suspended. ’ ’

From this reasoning, which I fully sanction, I infer with much confidence, that upon any emergency or occasion occurring out of court, whereby the judge is properly or by necessity left in charge of a juror without the presence of the sheriff, it is within his official province to take such charge; and that the propriety of *his conduct in this instance, as in others, is to be determined by the evidence.

Tet us now apply this view of the law to the actual conduct of the judge, which is impeached in this case. The trial was a very protracted one. The jury was empanneled on the 23d day of June, and not discharged till the 9th day of July. It was composed of men drawn from distant homes, many of whom fell sick during the progress of the trial. The evidence upon the application for a change of venue, shows that they were surrounded by a population whose minds were inflamed against the prisoner. There had already been one mistrial. There was every thing, therefore, in the situation of the judge, presiding over such a trial, to admonish him to .unusual vigilance in watching over the health and comfort of the jury, and to repeat his cautions to the sheriffs to keep the jury together, and guard them against all extraneous influences, or the slightest impropriety of behavior. Hence, the interests of the Commonwealth and the prisoner, 'the cause of justice, and his own sense of convenience and duty, all conspired in requiring of the judge in this remarkable trial the frequent precautions he took in visiting and enquiring after the sick jurors, and enjoining on the sheriffs the utmost strictness and care in guarding them while out of court. This was highly commendable and natural. It has no semblance of a hanging about the jury room to pry into their deliberations, or drop some guilty whisper to influence their verdict.

The consideration of these circumstances also serves to explain and justify the conduct of the judge in this instance. When in pursuance of the indulgence given the sick juror, the judge found him with the sheriff on the public portico of the hotel where others were sitting, he takes a seat by them as' if by his presence to keep off intruders and prevent all improper approach *to or interference with the juror. But after the two sheriffs keeping the jury, had withdrawn from the jury room and left a part of them locked up, the judge’s solicitude for their wants or careful custody, was again aroused, and he directs the sheriff sitting with him and the sick juror, to go back to the jury room, and he would take charge of the sick juror. I cannot think that for this object and with this motive, the judge was thereby out of the line of his official duties, or usurping any authority that did not belong to him put of court. The case- would be very different if this were corruptly contrived to •gain the -opportunity of conversing with the juror upon the subject of the trial; but when it is not pretended or suspected that such was the case, and that nothing transpired in the interview to raise the slightest conjecture of the sort, his momentary charge of the juror was a matter of strict propriety and necessity. Far distant be the evil day, when corruption shall have so soiled the bench and tainted the streams of justice as that the accidental or necessary presence of the judge with a juror shall not be received as a fair presumption that no wrong was done or permitted, but on the contrary, shall be accepted as proof of tampering! When that state of opinion shall prevail, all respect for the courts, all confidence in the administration of justice, all reverence for authority will have forsaken that department of the public service, usually deemed the last and best bulwark of public virtue and morals.

But it is said to be dangerous to confide to a judge such power and discretion, so liable to be perverted to the pollution of jury trial. This, however, is true of all discretionary power, I cannot better express my view than in the language of a recent case in the Queen’s Bench, (Winser v. The Queen, 1 Law Rept’s Q. B. 309), upon the authority of the judge on a trial of felony, under certain circumstances, to discharge a jury *for disagreement, &c. Sir Alexander Cockburn, C. J., said: ‘ ‘I agree that our rules are to be framed to keep the administration of justice beyond the possibility of corruption. On the contrary, if a rule is essential for the 'convenient working of the administration of justice, we must trust to the honesty of those to whom we commit that most important department of the State. We must trust to the means we have of punishing corruption and dishonesty if we find it operating on the minds of our judicial officers. I cannot help thinking that this discretion is of a very useful and salutary character. We must trust it will never be abused, or if unhappily it should be abused, we must trust to the power of parliament and the executive for punishing the judge who would act so dishonestly and corruptly. ’ ’“

It is proper to take some notice of the cases that are supposed to show that the judge has not the power out of court, which the view I have taken ascribes to him. These cases are Sargent v. Roberts, 1 Pick. R. 337; Fish & another v. Smith, 12 Indi. R. 563; and Crabtree v. Hazenbaugh, 23 Ill. R. 349. The first was a case of a virtual instruction sent in the form of a letter by the judge to the jury in the recess; the second, of the judge visiting the jury in their room and giving them instructions in the absence of the parties and without their consent; and the third, of a judge, who upon being sent for by the jury, repaired to their room, and declined, when asked, to explain the meaning of his written instructions. The true principle of these decisions, is thus expressed by Catron, C. J., in the last case: “The policy of the law requires that all the proceedings of the court should be open and notorious and in the presence of the party, so that if he is not satisfied with it he may take exceptions to it in the mode pointed out in the law; and not be put to extraneous *proof to show that an error had been committed in a secret proceeding and in fact out of court. ’ ’ These cases do not, therefore, at all militate against the view I have taken of this case.

But suppose I am wrong in this view of the judge’s authority out of court over his officers and jurors, and that we are to consider this case as one purely of the separation of the jury, and as if the juror had been left with some other person but the judge presiding over the trial. Upon this question, there are a great number of cases abroad, and in the States of the Union. Their name is “legion;” and we are indebted to the research and industry of counsel for a particular reference to them. I cannot be expected to review them. I am more particularly interested in the state of our own adjudications, so that I may not run counter to them, or unsettle the law with us. If it be conceded to the counsel for plaintiff in error that McCaul’s case, 1 Va. Cas. 271; and Overbee’s case, 1 Rob. R. 756, are authority for their position that separation per se vitiates a verdict in a criminal cause, it must be allowed that Martin’s case, 2 Leigh 745; McCarter’s case, 11 Leigh 633, and Thompson’s case, 8 Gratt. 637, are to the contrary. I do not interpret Wormley’s case, 8 Gratt. 712, as settling, as it is contended, this conflict of authority. There is no reference to the prior cases, and it is manifest that that case W'as decided on the misconduct of the sheriff, which is specially animadverted upon, and censured. In this unsettled and indeterminate condition of our cases, I think we are authorized to deduce and lay down a rule not in conflict with them, as a whole; and in harmony with the general current of decisions elsewhere. And that rule seems to me to be this: that separation out of the custody and control' of the officer is prima facie sufficient to vitiate a verdict; and that it is incumbent upon the Commonwealth *to refute that presumption by disproving all probabilities or suspicions of tampering; unless, indeed, the prisoner’s own testimony, as in Thompson’s case, should be sufficient to that end. This principle, I think, reconciles our own cases, and comports with the general current of the cases to which we have been referred. It is an ample safeguard of the purity of jury trial, for which I entertain habitual reverence; and I do not think we thereby impair the weight to be attached to our earlier decisions.

In the application of this principle to the case at bar, I do not think there is a rational doubt that the Commonwealth has by the testimony of the juror and sheriffs most satisfactorily repelled any, the slightest presumption of unfairness or tampering in the transient interview of the judge with the sick juror; and, indeed, the counsel of the plaintiff in error distinctly disclaimed any suspicion of it. On the contrary, the complaint is of the separation by itself, and the danger of such a precedent. It is also alleged that there is a peculiar hardship in this case, as the judge is required to pronounce on his own conduct. This, however, is not so. It would be the same if the judge were to misbehave towards the jury in open court, as by instructing them on the weight of testimony, or indecorousty betraying to them his leaning in the cause.

This case has been argued at great length, and with eminent ability. I have not been able to notice all the points of the argument, or comment upon the many pertinent authorities that have been laid before us. I desire to acknowledge my obligations to counsel for their researches, and the benefit I have derived from their arguments. It is not that I slight either the one or the other, that I do not specially notice them; but because they lay outside of the immediate discussions that I have been pursuing, and a part from the view that I have been led to take of this case.

*It only remains for me to announce my opinion that this record does not furnish ground sufficient to set aside the verdict and award the new trial asked for.

The other judges concurred in the opinion of Rives, J.

Judgment affirmed.  