
    *Bell v. The Commonwealth.
    December Term, 1851.
    1. Indictments — For What Detects Court Will Quash. —In prosecution for felonies and other serious offences, the Court will not on the motion of the prisoner quash the indictment, unless where the Court has no jurisdiction ; where no indictable offence is charged ; or where there is some other substantial and material defect. In other cases he will be left to his demurrer, motion in arrest of judgment, or writ of error.
    2. Same — Surplusage.—Querns. If the statement in the commencement of the indictment, of the name of the Court and the term at which the indictment was found, is not surplusage. If not surplusage it is useless.
    3. Same — Laying Venue — Case at Bar. — Where the indictment in the caption names one county and in the body of it speaks of the defendant as of another county, the charging the offence to have been committed in the county aforesaid, is error, it not being alleged with sufficient certainly that the offence was committed in the county in which the indictment was found.
    
      4. Statute — Discharge of Prisoner — “Two Terms”— Interpretation. — A prisoner being sent on for further trial by an examining Court, which sat during the session of the Circuit court to which he is sent for further trial, that term of the Circuit court is not one of the two at which the statute directs that he shall be indicted, or that he shall be discharged from imprisonment.
    Alonzo G. Bell was indicted in the Circuit court of Campbell county, for stealing a horse. When brought to the bar. before pleading he moved the Court to quash the indictment, on two grounds. 1st. Because the caption of the indictment recites the Court as “the Circuit Superior court of law and chancery for Campbell county,” when in fact there is no Court in the Commonwealth bearing that title; the true name of the Court being, “the Circuit court of Campbell county.” 2d. Because the indictment on its face declares that it was found by the grand jury at the October term of the Circuit Superior court of law and chancery holden in and for the county of Campbell aforesaid, in the year of our Lord one thousand eight hundred --and fifty; when in fact no such Court was then held, and no such indictment was found at the October term 1850, of the Circuit court of Campbell county.
    The record states in its commencement, the name of the Court, and the term, correctly ; and these are also stated correctly when recording the fact that the indictment was found against the prisoner. But in the indictment itself the errors relied on as the ground of the motion are found; and an inspection of the record of the Court for the October term 1850, shewed that no indictment was found at that term against Bell. But the Court overruled the motion and the prisoner excepted.
    The prisoner then offered a special plea which was in substance, that on the 13th of Hay he was examined before the County court of Campbell for the supposed felony in the indictment mentioned, and was remanded for trial in the Circuit Superior court of law and chancery for the county of Campbell. That said Circuit Superior court was in session on the said 13th óf May 1850, when the prisoner was so remanded, and had been in session from the 8th day of May, and continued its session until the 18th day of May, 1850. That the next term of said Court, (its name having been changed in the meantime to “The Circuit court of the county of Campbell,”) was commenced on the 8th day of October 1850, and continued its session until the 19th of October, when it again adjourned until its next regular term in May 1851. And that the prisoner was not indicted at either of the said terms of May or October 1850; nor did the failure to indict him arise from any of the causes stated in the statute; and so the prisoner was not lawfully indicted for said supposed offence set out in the indictment. This plea the Court rejected; and the prisoner again excepted.
    The prisoner then pleaded “not guilty” and upon *his trial was convicted and sentenced to two years and six months imprisonment in the penitentiary.
    In the caption of the indictment the Court is stated as of the county of Campbell. It then proceeds to state that the grand jury for the county aforesaid present Alonzo G. Bell late of the county of Roanoke, in the State of Virginia, and at the parish of Russell and in the county aforesaid; one bay mare of the value &c.
    The prisoner applied to this Court at- its June term 1851 for a writ of error to the judgment, which was awarded.
    Irving, for the prisoner.
    The Attorney General for the Commonwealth.
    
      
      Indictments. — On all matters pertaining to indictments, see monographic note on “Indictments, Informations and Presentments” appended to Boyle v. Com., 14 Gratt. 674.
    
    
      
      Same — For What Defects the Court Will Quash.— In Huff v. Com., 14 Gratt. 648, it was held that, because the presentment in that case did not charge any offence, the lower court erred in overruling the motion to quash it; and, for that error, the judgment was reversed and the presentment quashed, the count citing the principal case as authority for its holding.
    
    
      
      Statute — Discharge of Prisoner after Two Terms of Court — What Term Not Counted. — See foot-note to Bell’s Case, 7 Gratt. 646, where the cases citing the principal case on this point are collected.
    
   IvJBIGH, J.,

delivered the opinion of the Court.

Alonzo G. Bell was indicted at the May term 1851 of the Circuit court of Campbell, and at the same term he was tried and convicted. Before a jury was empaneled for his trial, he moved to quash the indictment. This motion was overruled, and he excepted to the opinion of the Court. He also offered a plea, which was rejected, and he again excepted to the opinion of the Court.

At the last term of this Court, he applied for a writ of error. The record then before the Court did not shew that the indictment had been been found by the grand jury, and a writ of error was awarded. A full record has been certified to this Court, from which it appears that the indictment was found by a grand jury regularly empaneled. And we are now to enquire whether there is any error in the proceedings and judgment in the Circuit court.

In the indictment the Court is styled “The Circuit Superior court of law and chancery,” and it is stated that the grand jury was empaneled at the October *term 1850 of the Court; whereas the true style of the Court is, the Circuit court, and in point of fact the grand jury which found the indictment was empaneled at the May term 1851 of the said Court. And it is insisted by the prisoner’s counsel that for the misdescription of the Court, and the misstatement as to the term at which the indictment was found, in the indictment, the Court ought to have quashed the indictment. And to sustain this position, the Court was referred to passages in Stark, on Cri. Plead. 258, and Archb. Plead, and Ev. in criminal cases 33. The passages cited from these authors apply to captions of record certified to the Court of King’s Bench from inferior Courts, and point out what the captions of such certified records ought to contain. But the caption in the present case is in proper form, and therefore these authorities do' not apply to the question under consideration. There is in this case nothing wrong in the caption, and the defects, if defects there be, are in the indictment alone. Still the question remains whether the court ought to have quashed the indictment for the misnomer of the court and for the misstatement of the term at which the indictment was found.

A motion to quash an indictment is addressed to the discretion of the court, and in cases of felony and other serious offences, courts when the motion is made by the defendant, usually refuse to quash, unless upon the plainest and clearest grounds, but j leave the party to a demurrer, or motion in j arrest of judgment, or writ of error. 1 Chit, Cr. Law 246, top paging, Phila. Edi. 1819. And the cases in which the Court, on the | motion of the party accused, ought to quash are, where the Court has no jurisdic- j tion; where no indictable offence is charged; or where there is some other substantialj and material defect. 1 Chit. Cr. Caw 248. Upon this authority, we are of opinion that the Circuit court rightly refused to ! quash the indictment for the defects j *above mentioned. Eor these defects [ shew no want of jurisdiction, and an j indictable offence is plainly set forth, and | the defects complained of are merely for- j mal, not affecting in the least the guilt or innocence of the accused, and not calcu- ! lated to embarrass him. Indeed they are so wholly unconnected with the charge, that they ought perhaps to be regarded as sur-plusage. We have looked to the forms oi; indictments given in Starkie on Criminal Pleading; and in none of them is the style of the Court, or the term of the Court at which the indictment was found, set forth.

And the setting them forth in this indictment, if it be not surplusage was certainly useless, and for the insertion of useless matter an indictment ought not to be quashed.

The facts set forth in the rejected plea, were before this Court at the last December term, on the application of the prisoner for the writ of habeas corpus, in order that he might be discharged by reason that he had not been indicted within two terms after he had been remanded to the Circuit court to be tried. On that occasion after great consideration this Court was of opinion that two terms, such as the law contemplates, had not elapsed; and that the prisoner had no right to claim his discharge on this ground. We have at this term reconsidered the question, and we have come to the same conclusion. We are therefore of opinion that the matter set forth in the plea was no ground of defence, and that the Circuit court rightly rejected the plea.

But there is a defect in the indictment, in not setting forth with sufficient certainty the county in which the larceny was committed, for which the judgment must be reversed. Campbell county is mentioned in the caption, and in the body of the indictment the county in which the larceny was committed is set forth in the following words, “that Alonzo G. Bell late of the county of Roanoke in the State of Virginia,, labourer, on the 10th day of March,, in the year of our Eord one ^thousand eight hundred and fifty, with force and arms at the parish of Russell and in the county aforesaid.” So that two counties had been previously mentioned before the county in which the larceny was committed is stated, and then the county where the larceny was committed is stated by the words “in the county aforesaid,” without stating to -which of the previously named counties the word “aforesaid” had reference. This manner of stating the county where the theft was committed, is insufficient. 1 Chit. Cr. Law 160; Archbold’s Pleadings and Evidence in criminal cases 49; 2 Gabbett’s Cr. Law 205; 1 Wms. Saund. 308, n. 1. According to some of these authorities, the w'ord “aforesaid” refers to the county last before named. If this be the correct construction, the word “aforesaid” referred to the county of Roanoke, and then the Circuit court of Campbell had no jurisdiction ; and according to a part of these authorities, it is uncertain to which of the counties before named the word referred; and the Court cannot say in which county the offence was committed. But which ever of these may be the true construction, all the authorities agree that the indictment is bad. And for this error the judgment must be reversed.

The judgment was as follows:

It seems to the Court here, that there is error in the said judgment in this, that it is not sufficiently alleged in the indictment that the stealing of the mare was committed in the county of Campbell: Wherefore it is considered that the said judgment be reversed and annulled. And this Court proceeding to give such judgment as the Circuit court ought to have rendered, it is further considered that the said Alonzo G. Bell go quit of the said indictment. And on the prayer of the attorney general that the said Alonzo G. Bell may be held in custody to answer a good arid sufficient indictment *to be exhibited against him in the Circuit court of Campbell, for the felonious stealing, taking and carrying away the mare in the aforesaid first indictment mentioned, it is ordered accordingly, unless the said Alonzo G. Bell shall be discharged by the said Circuit court, or otherwise, by reason that there have been three regular terms of the said Court since his examination without his being tried, or unless he shall be otherwise legally entitled to be discharged.  