
    *Brooks v. The Commonwealth.
    July, 1833.
    Criminal Law — Change of Venue — Directing Cause to Be Tried at Particular Term — Surplusage.—indictment for felony In the circuit court of Warwick; • the court for good cause sends the case to the circuit court of York, to he tried at the term of that court to he held on the 8th June 1831; the circuit court of York, doubting its competency to try the case at that term, which was a special one, continues it till the next regular term of the circuit superiour court of York; and the prisoner is afterwards tried there, and convicted: Held, the circuit court of Warwick had no power to direct the case to he tried at any particular term of the circuit court of York; hut the direction that the case should he tried at the June term 1831. is to be rejected as surplusage; the substance of the order is a change of the venue from Warwick to York.
    Appellate Practice — Excessive Judgment — Solitary Confinement.’' — A circuit superiour court, not adverting to the statute of 1832-3, ch. 19, § 2, sentences a convict to solitary confinement in the penitentiary for one sixth of the term of imprisonment fixed by the verdict; judgment reversed for this cause; hut the general court proceeds to enter judgment, that the solitary confinement shall he one twelfth of the term, according to that statute.
    ■ Error to a judgment of the circuit supe-riour court of York. Brooks was indicted for the murder of a slave, in the circuit superiour court of Warwick, at a special term held on the 1st June 1831; and the court being satisfied, from the number of challenges to jurors, that an impartial and legally qualified jury to try the cause, could not be had in that county, ordered that it should be sent to the circuit court of York, to be held on the 8th day of the same month, where, in the opinion of the court, a fair and impartial trial could be had. The prisoner was admitted to bail. It appeared, that the term of the circuit court of York held on the 8th June, was a special term, held under the provisions of the act of the ISth March 1831, providing for the holding of the then remaining spring sessions of the circuit courts; Sess. Acts of 1830-31, ch. 10, p. 41. And the circuit court of York, doubting its competency to proceed with the trial of the prisoner at that special term, continued the cause to the regular term of the circuit superiour court of law and chancery for the county, to be held’ in September 1831: bailing the prisoner in the meantime. At that *term, the prisoner was put upon his trial, but the jury not agreeing in a verdict, were discharged; and there was another trial at April term 1832, which ended in the same way. At April term 1833, the prisoner was tried by a third jury, which found him guilty of manslaughter, and ascertained the term of his imprisonment in the penitentiary to be two 3rears. Whereupon, the prisoner made a motion in arrest of judgment, because he had been sent to the former circuit court of York, to be tried at the special term thereof held on the 8th June 1831, but the circuit court of York, at that special term, had no jurisdiction to try the cause, and the circuit superiour court of York had no jurisdiction now to try the same; and that three terms of the circuit-superiour court of Warwick, having passed without any trial there had, he was entitled to demand his discharge from the prosecution. The court overruled the motion in arrest of judgment, and sentenced the prisoner to imprisonment in the penitential for two years, and to be kept in a solitary cell there, on low and coarse diet, for one sixth of the term of imprisonment.
    And, now, he presented a petition to this court for a writ of error, assigning for error, the same matters which he had moved as reasons in arrest of judgment.
    
      Southall for the prisoner.
    The attorney general for the commonwealth.
    
      
       Appellate Practice — Excessive Judgment —Solitary Confinement. — On this subject, see foot-note to Murry v. Com., 5 Leigh 721, where the cases citing the principal case are collected.
      Excessive Judgment — Effect.—See principal case cited in foot-note to Murry’s Case, 5 Leigh 720; Ex parte Mooney, 26 W. Va. 41.
    
   MAY, J.

By the provisions of the statute, 1 Rev. Code ch. 169, '& 9, p. 601, the circuit court of Warwick had the power and was bound, under the circumstances, to change the venue in this case; and it appears by the record, that York was the most convenient county in which a fair trial could be had. 'The venue was, therefore, properly changed to that county. But the circuit court of Warwick had not the power to require that the trial should take place at any particular term of the circuit court of York; and although that would seem from the phraseolgy of the order, to have ':ibeen contemplated to' be done, the circuit court of York, doubting its power, properly refused to try the case at the special term of the 8th June 1831. Whether it was proper to bail the prisoner at that term, and how far the recognizance was binding, it is not material here to inquire. The prisoner appeared at the fall term of the circuit superiour court of York; and as the venue had been changed to that county, the court took cognizance of the case, and proceeded to the trial.

We are of opinion, that so much of the order changing the venue as seemed to require the trial to be had at 1he term of the circuit court of York, to be he¡d on the 8th June 1831, should be considered as surplus-age ; and it having been substantially disregarded, then and subsequently, there is no error in the proceedings in this particular.

But the judgment is erroneous in this, that the court sentenced the prisoner to be kept in a solitary cell &c. in the penitentiary for one sixth, instead of one twelfth, part of the term of imprisonment of two years ascertained by the verdict of the jury. Sess. Acts of 1832-3, ch. 19, | 2, p. 18. The judgment is, therefore, to be reversed, and judgment to be entered, that the prisoner be confined in the penitentiary for the term of two years, and kept in a solitary cell &c. for one twelfth part of the term.  