
    The Commonwealth v. Samuel Murray, Jun.
    Examining Court — Exception—Warrant of Commit» ment-¿Record. — if a prisoner excepts to an opinion of the Examining Court, and in his Bill of Exceptions sets forth the Warrant of Commit- ’ rnent,* he thereby makes that Warrant a part of the record of the Examining Court.
    Same — Same—Same—Same.—if, in such case, the Warrant of Commitment shews the offence charged on the prisoner to be the same with that for which he is indicted in the Superior Court, that Indictment shall not be quashed, although the other part of the proceedings of the Examining Court, only exhibit a charge of felony generally.
    Same — Warrant.—It is safe that a Warrant of Com- : mitment should set forth that the party is charged on oath, or affirmation, but it is not necessary.
    Same — Same—Return.—The return of a Sheriff on a Warrant summoning the Justices, that he has . “executed” it, is sufficient.
    Same — Sapie—Mistake in Date — Effect.—A mistake of the Justice in the date of the Warrant of Commitment, or of the Warrant summoning the Justices, is no ground for setting aside the subsequent proceedings.
    ■ This was an adjourned Case from the Superior Court -of- Hanover. The Defendant was indicted for the larceny of a calf, the property of William Pollard. Before pleading' to the Indictment, he moved the Court to quash the Indictment, on the following grounds:
    1. That by the record of the proceedings of the Examining Court, it appears that the prisoner was examined on a general charge of felony.
    ■ 2. That the Warrant of Commitment does not state that it was granted upon oath, or affirmation, but states that the prisoner had been arrested for a suspicion of felony, by him, as it was said, committed.
    3. That the return made by the Deputy Sheriff, upon the Warrant directing the Examining Court, was uncertain, insufficient, and illegal.
    *4. That the Warrant summoning the Examining Court, dated on the 6th May, 1825, states that he had on that day committed the prisoner, by his Warrant, to jail, whereas the Warrant of Commitment exhibited before the County Court, bore date 5th May, 1825.
    So much of the record of the Examining Court, as is necessary for the present purpose, was as follows:
    “At a Court of Monthly Session, held for Hanover count}', at the Court-house, on Wednesday, the 25th May, 1825, no Court appearing on the day appointed for the examination of Samuel Murray, Jun. charged with felony, the said Samuel Murray, Jun. was this day led to the bar, in custody of the Sheriff of this county, and for reasons appearing to the Court, the said examination is continued until the next Court. And at a Court of like Session, held &c. on &c. Samuel Murray, Jun. who stands charged with felony, &c. whereupon, &c. the Court on consideration, are of opinion, that the said Samuel Murray, Jun. ought to undergo a trial for the felony aforesaid, at the next Superior Court of Eaw to be held for this county,” &c.
    At the examination aforesaid, the Counsel for the prisoner tendered to the Court a Bill of Exceptions, which was received, sealed, and signed, and ordered to be made a part of the record, and is as follows:
    “Memo. On this examination, the Warrant of Commitment, and the Warrant summoning the Justices, with the return on the latter, were introduced, whereupon, the prisoner, by his Counsel, moved the Court to quash the said Warrants, and discharge the prisoner, which motion the Court overruled. ’ ’
    The Warrant of Commitment is in these words:
    “Hanover county, to wit:
    “To the Keeper of the Jail of the said county:
    “Whereas, Samuel Murray, Jun. late of Hanover county, labourer, has been arrested for suspicion of felony, by him, as it is said, committed, in stealing a calf of the value of $6, the property of William Pollard, of Hanover county; therefore, in behalf of the Commonwealth, I command you, that you receive the said Samuel Murray, Jun. into your custody, in the said jail, there to remain till he be delivered from your custody by a due course of Caw. Given under my hand and seal, at the said county, the 5th day of May, 1825.
    “John Kilby.”
    *The other Warrant and return, are as follows:
    “Hanover county, to wit:
    “To the Sheriff of the said county:
    “Whereas, Samuel Murray, Jun. late of Hanover county, was this day committed to the jail of this county, by my Warrant, it appearing' to me that the felonious offence wherewith he stands charged, ought to be examined into by the County Court: therefore, on behalf of the Commonwealth, I require of you, that you summon at least eight of the Justices of your said county, to meet at the Court-house, on the 13th May, 1825, and then and there to hold a Court for the examination of the fact with which the said Samuel Murray, Jun. stands charged, and for such other purposes concerning the premises, as is by Caw required, and directed, and that you have then and there this Warrant. Given under my hand and seal, this 6th day of May, 1825.
    “John Kilby, (Seal.)”
    Return of the Sheriff, endorsed:
    “Cxecuted: Edwin Shelton, D. S. for J. W. Ellis, Sheriff.”
    The Superior Court adjourned to the General Court, the following questions:
    1. Is the charge against the prisoner, as it appears upon the whole record aforesaid, too general?
    2. Is the aforesaid Warrant of Commitment bad, because it does not appear upon its face to have been granted upon oath?
    3. Is the return of the Sheriff upon the Warrant, summoning the Magistrates, defective?
    4. Is the apparent mistake stated in the fourth ground aforesaid, material?
    5. Are all or any of the objections aforesaid, sufficient to quash the said Indictment?
    
      
       Examining Court — Warrant of Commitment. — The principal case is cited in Wormeley v. Com., 10 Gratt. 670, and foot-note; Clore v. Com., 8 Gratt. 611, and foot-note; Kemp v. Com., 18 Gratt. 974; Chahoon v. Com., 20 Gratt. 702.
    
   BROCKENBROUGH, J.,

delivered the opinion of the Court:

(After stating the Case as above.) In answer to the first question propounded, the Court has no hesitation in saying, that according to the decision in M’Caul’s Case, 1 Virg. Cases, p. 300, if it does not appear from the record of the Examining Court, for what criminal fact the prisoner was examined and remanded for trial, and if that fact cannot be ascertained without looking to papers or testimony out of the record, and if from the record, it appears that he was ^'charged before the Examining Court, with felony generally, the Indictment charging him with a particular offence, ought to be quashed either on Plea, or on motion.

In that Case it was decided, that the Warrant of Commitment was no part of the record of the Examining Court. It is not necessary now to enquire, whether that part of the decision would, upon a re-consideration, be supported or not. There is nothing however in it, which sanctions the idea, that the prisoner himself may not make that Warrant a part of the record. In this Case, he moved the Examining Court to quash that Warrant and another, and the proceedings founded on them, and being over-ruled in this application, he excepted to the opinion and spread the Warrant of Commitment on the Bill of Exceptions, and prayed that his bill might be made a part of the record, which was done. It does then appear from the whole record of the Examining Court, that he was examined and remanded for trial, for the very offence for which he was indicted, and that the charge before that Court, was not too general.

The second question is of more importance. The Court is aware, that an opinion has lately prevailed, that a Mittimus, which does not shew on the face of it, that the charge against the prisoner was supported by oath or affirmation, is illegal, and that the prisoner may be discharged on Habeas Corpus. This opinion has received countenance from the Case of Ex parte Burford, 3 Cranch, 448. But after due reflection, we are satisfied, that in this State, the Eaw is otherwise.

The fourth article of the Constitution of the United States declares, that “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated; and no Warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” It appears clear to us, that this article applies to Search Warrants and Warrants of Arrest, and not to Warrants of Commitment. The article too, lays down a rule for the Federal authorities, and not for the State authorities. It was intended to afford security to the people of all the States, against the encroachments of their Federal Legislature, Executive and Judiciary, and of all the officers created by, or dependent on them. It could not be intended as a rule for the State authorities. The people of *the several States then existing, had already by their Constitutions and Laws, guarded themselves as effectually, as they thought it necessary, against the abuse of power by their own governments, and if there was any defect, they retained within themselves, the power to establish such additional rules as might thereafter be necessary.

By the the 10th article of their Bill of Rights, the people of Virginia declared, “That general Warrants, whereby an officer or messenger may be commanded to search suspected places, without evidence of a fact committed, or to seize any person or persons not named, or whose offence is not particularly described and supported by evidence, are grievous and oppressive, and ought not to be granted.” There can be little doubt, that this article grew out of the discussions in England, in Wilkes’ Case, and it establishes a most important safeguard to the rights of the people, against the abuse of power by our own State officers. But it is clear, that like the article in the Federal Constitution, it applies only to the Warrants of Search and of Seizure, and not to the Warrant of Commitment. This last Warrant was left as it stood at Common Law, nor has it been deemed necessary to make any Legislative enactment on the subject. How then stands the Case at Common Law? Hawkins, (Book 2, ch. 16, {! 17,) says, “It is safe to set forth, that the party is charged upon oath, but this is not necessary, for it hath been resolved, that a Commitment for Treason, or for suspicion of it, without setting forth any particular accusation or ground of the suspicion, is good.” This is supported by Wyndham’s Case, 1 Str. 3. Hale, (1 vol. p. 583,) cites the three essential parts of the Mittimus, as laid down by Lord Coke, and in that enumeration, does not include this requisition. See also, 1 Leach, 167; 1 Chitty Cr. Law, 110, and 2 Wils. 158.

It is believed, that it has been almost the universal practice of the Justices in this Commonwealth, to omit the statement in the Mittimus, that the party was charged on oath, and we have not heard, that any oppression has resulted from the practice. We do not, therefore, think it could be correct to make a new rule which might have the effect to let loose numerous offenders on the Community. In this opinion, JUDGE SEMPLE does not concur.

The third question is easily answered. The Law directs, that the Committing Magistrate shall issue his Warrant to the Sheriff, commanding him to summon at least *eight of the Justices to hold a Court for the examination of the fact. The Warrant in this Case, pursues the directions of the Law, and the Sheriff returns, that he has executed it. We consider the return as sufficient.

In answer to the fourth question, we say, that whether the Magistrate made a mistake in the date of the Warrant summoning the Justices, or in the recital that he had on that day, committed the prisoner, is wholly immaterial.

In answer to the fifth question, the Court is of opinion, that even if the Warrant of Commitment were bad in the particular al-readj' adverted to, it would be no ground to quash the Indictment, because the Indictment charges the prisoner with an offence for which he had been previously examined, and whether the original Mittimus was legal or not, yet, clearly, after he had been remanded to jail by the Examining Court, his second commitment was entirely regular. In this opinion we are unanimous, as we are that none of the other objections are sufficient to quash the Indictment.  