
    Smith v. The Commonwealth.
    1849. December Term.
    
    1. A prisoner is examined before the Hustings court of Richmond, and sent on to the Circuit court of Henrico to be tried; and the venire facias is directed to the sergeant of the corporation, who executes it, and returns the panel for the trial of the prisoner. The venire facias is properly executed by the sergeant.
    
      2. What opinion formed and expressed does not disqualify a juror in a criminal trial.
    The prisoner, Samuel A. Smith, was indicted at the October term 1849, of the Circuit court of Henrico. The indictment contained four counts. The first count was for unlawfully and feloniously advising a slave, named Alfred, the property of William G. Overton, to abscond from his master, with intent to defraud the said Overton, and deprive him of his said slave.
    The second count charged that the prisoner, in the City of Richmond, did unlawfully and feloniously aid the said slave to abscond from his master, by putting him in a certain box, and concealing him in said box; and by carrying the said box, with the said slave therein concealed, to the depot of the Richmond and Fredericksburg railroad company, in said city, with intent in so doing, that the said slave so concealed as aforesaid, should be transported from thence, upon the railroad, out of the Commonwealth.
    The third count was like the second, except that it did not charge that the intent was that the slave should be transported out of the Commonwealth.
    The fourth count charged that the prisoner aided the slave to abscond from his master, by furnishing him with a box for the concealment and transportation of the said slave, with intent, in so doing, to aid said slave to abscond from his master.
    When the prisoner was set to the bar, he moved the Court to quash the second and third counts in the indictment ; but the Court overruled the motion.
    The prisoner had been examined before the Hustings court of the City of Richmond, and sent on by that Court to the Circuit superior court of law and chancery for the county of Henrico and the City of Richmond; and the venire facias was issued by the clerk of the Hustings court, and directed to the sergeant of the City of Richmond; by whom it was executed. After the prisoner had been arraigned, and had pleaded “not guilty,” he moved the Court to quash the venire facias, and the return thereon, upon the ground that the sergeant of the City of Richmond was not the proper officer to whom the venire facias should have been directed, or by whom it should have been served. But the Court overruled the motion: and the prisoner excepted.
    In the progress of empanneling the jury, a talesman, John A. Hutcheson, was called, and on his examination he stated, “ that he read the evidence as published in the newspapers, and had formed and expressed the opinion, though it was not a decided one, that the prisoner was guilty. But that he was satisfied he could give the prisoner a fair and impartial trial, notwithstanding his impressions, and without being influenced by them, on hearing the evidence adduced on the trial.” The prisoner thereupon objected to him as a juryman; but the Court overruled the objection; and the prisoner excepted.
    Another talesman, James T. Sutton, was called and stated, “ that he had formed and expressed a decided opinion, founded on a report of the evidence before the mayor, published in the papers, but not such an opinion as would influence his mind if accepted as a juryman. That the opinion so formed would naturally be recalled to his memory, but that he would be governed solely by the evidence which might be given in Court.” The prisoner objected to him as a juror, but the Court overruled the objection ; and the prisoner again excepted.
    The jury found the prisoner guilty, and fixed the term of his imprisonment, in the penitentiary, at four years and six months. The prisoner then moved the Court to arrest the judgment on the grounds:
    1st. Because the verdict was contrary to law.
    2d. Because the 2d count in the indictment was repugnant to, and contradictory of, the material issues raised on the other three counts, inasmuch as it presented a material issue, which being by the jury found sustained by the evidence, positively and distinctly negatived the criminalty alleged in the other three counts in the indictment.
    3d. Because the prisoner was indicted under the 25th section of the 4th chapter of the Criminal Code of 1847-8, for the offences therein created and thereby technically defined, when the 2d count alleged an of-fence not contemplated by, or embraced in, the said 25th section of the said statute; and intended by the Legislature to fall within the purview and letter of the 12th section of the 11th chapter of the same Code, defining the statutable offence of any attempt to violate a criminal law, and the failure in such attempt.
    
      The Court overruled the motion to arrest the judgment, and sentenced the prisoner in accordance with the verdict. The prisoner excepted to the opinion of the Court overruling the motion in arrest of judgment: and applied to this Court for a writ of error.
    
      Gilmer and Byrd, for the prisoner.
    
      Caskie, for the Commonwealth.
   By the Court.

The writ of error is refused.  