
    The Commonwealth v. Josiah M’Clenegan.
    Indictments—Misdemeanor—infamous or Corporal Punishment—Capias.—Where an indictment or presentment is found by a grand jury for a misdemeanor punishable with an infamous or corporal punishment, the court may award a capias in the first instance: and, where the punishment is of an inferior nature, and two venire faciuses have been returned not found, there also the court may award a capias.
   The point adjourned in this case sufficiently appears from the opinion of the court.

June 11th, 1808, present judges Tyler, Nelson, White, Stuart, Brooke and Holmes. “The court are unanimously of opinion that where an indictment or presentment 156 *is found by a grand jury against any person for a misdemeanor to which the law has affixed an infamous or corporal punishment, the court before whom such indictment or presentment is found, may, in its discretion, award a capias in the first instance ; and that upon indictments and presentments of an inferior nature, such court ought, after two venire faciases have been returned not found, to award a capias. ’ ’  