
    Fisher v. Commonwealth.
    June, 1840.
    Criminal Law-Employing Free Negroes — Indictment.— Under the statute 1 Rev. Code, ch. 75, § 5, an in-dlctment for employing or harbouring a free negro or mulatto, contrary to the statute Id. ch. Ill, § 75, is a regular proceeding.
    Same — Same—Same—Sufficiency.—what is a sufficient indictment for such offence.
    In the circuit superior court of Mason, at April term 1838, the grand jury found an indictment against Henry J. Fisher for a misdemeanour. The indictment contained two counts. The first charged that Henry J. Fisher, on &c. at the county aforesaid, “did unlawfully employ *and haboúr John, a free negro man, who has been emancipated within the commonwealth of Virginia since the first day of May 1806, and has unlawfully remained in the county of Mason and commonwealth aforesaid, from the time of his emancipation until &c. being a period of more than twelve months after his title to freedom accrued, and after he had attained the age of twenty-one years, without having obtained leave so to do according to law, and without having his certificate registered in the said county of Mason, contrary to the form of the statute &c.” The second count charged that the said Henry J. Fisher, on &c. at the count}' aforesaid &c. “did unlawfully employ and harbour John, a free negro man, going at large and hiring himself out to labour in the said county, without having his certificate of freedom registered in the said county of Mason, and without having in his possession a certified copy of the said certificate, contrary to the form of the statute &c.”
    A summons having been awarded against the defendant, he appeared, and put iu a general demurrer to the indictment, - in which the attorney for the commonwealth joined. After argument, the court overruled the demurrer, and proceeded to render judgment against the defendant for a fine of five dollars and the costs of prosecution. To this judgment the general court, on the petition of Fisher, awarded a writ of error.
    The cause was argued in writing, by the plaintiff in error. 1. He maintained, that it was a familiar principle of law,that where a statute creates an offence, and inflicts a penalty, which it directs to be recovered in a particular manner or before a particular forum, the penalty cannot be recovered in any other manner or before any other forum. Now, by the statute under which this prosecution is instituted, 1 Rev. Code, ch. Ill, $ 75, p. 441, the penalty is made recoverable by *warrant before a justice of the peace. And though, by the statute 1 Rev. Code, ch. 75, 5, p. 265, a grand jury for a superior court is empowered to present all offences made penal by the laws of the commonwealth, although the recovery of the fines for such offences be otherwise directed, except where the penalty is less than five dollars, yet that statute, in terms, authorizes a proceeding by presentment only ; and the statute 1 Rev. Code, ch. 169, § 65, p. 614, which prescribes the mode of proceeding in the superior courts for offences where the penalties exceed not 20 dollars, enacts that in a presentment to the court for such offence, no information thereupon shall be filed; manifesting the intent and understanding of the legislature, that the presentments authorized by the Sth section of the 75th chapter must be such, whereupon, but for the prohibitory enactment in the 169th chapter, ah information might regularly and properly be filed ; presentments in the strict sense of the term, as distinguished from indictments, in respect to which the prohibition was unnecessary and nugatory. As to the distinction between presentments and indictments, he referred to 1 Chitt. Crim. haw, american edi. of 1832, p. 163. Terms de la Ley, 26S; Jacob’s Law Diet, title Presentment, and as to the necessity of proceeding in the particular mode pointed out by the statute, to the cases óf Webb v. Commonwealth, 2 Leigh 721; White v. King &c., 5 Leigh 726; Sims v. Alderson, 8 Leigh 479; Ex parte Fisher, 6 Leigh 619.
    By the 61st section of the act concerning slaves, free negroes and mulattoes. 1 Rev. Code, ch. Ill, p. 436, it is enacted, that “if any slave hereafter emancipated shall remain within this commonwealth more than twelve months after his or her right to freedom shall have accrued, he or she shall forfeit all such right, and may be apprehended and sold by the overseers of the poor” — “but this provision shall not extend to any infant slave or slaves who shall be emancipated, until such slave or slaves shall have remained within this commonwealth twelve months after he. she or they shall have attained the age of twenty-one years.” By the 74th section, Id. p. 440, it is enacted (for the prevention of free ne-groes and mulattoes going at large in the several counties of the commonwealth) “that no free negro or mulatto shall be allowed to go at large or hire himself or herself to labour in any county, without having his or her certificate registered in the clerk’s office of the county wherein he or she resides, and having a certified copy of the said certificate:” and by the 75th section, Id. p. 441. ‘*any person employing or harbouring any such negro or mulatto, coming within the purview hereof, shall forfeit and pay, for each offence, five dollars, to the use of the iniormer, to be recovered by a warrant before a justice of the peace.”
    By the 5th section of the act concerning juries, 1 Rev. Code, ch. 75, p. 265, “every grand jury for a superior court of law shall and may present all offences made penal by the laws oi this commonwealth, although the recovery of the fines for such offences shall he otherwise directed by the laws inflicting the same; except only, that no presentment shall be made in a superior court of law, of any offence where the penalty inflicted by law is less than five dollars.”
    By the 65th section of the act regulating criminal proceedings against free persons. 1 Rev. Code, ch. 169. p. 614. “in a presentment to a county or corporation court, if the penalty of the offence exceed not five dollars, or to the superior court, if the penalty exceed not twenty dollars, no information thereupon shall be filed, but a summons shall be issued against the defendant to answer the presentment, and such summons having been served upon him. or a copy thereof having been left at his usual place of abode at least ten days before the return day. if he do not appear, judgment shall be rendered against him for the penalty, and if he do appear, the *court shall, in a summary way, without a jury, hear and determine the matter of the presentment in the form in which it shall have been made, and give judgment thereupon according to law and the very right of the case, disregarding any exception that may or might be taken to the form of the presentment.” See the case of Commonwealth v. Collins, 9 Leigh 666. — Note in Original Edition.
    2. He contended, that the first count is defective, because it does not allege, otherwise than by implication, that the negro remained in the commonwealth more than twelve months after his right to freedom accrued; citing Jacobs et al. v. Commonwealth, 2 Leigh 709.
    3. He submitted, that the first count ought to have charged that the employing and harbouring was with knowledge on the part of the defendant that the negro *was remaining in the commonwealth contrary to law. On this point he cited Rex v. Burridge, 3 P. Wms. 439
    
      
       Indictments. — See generally, monographic note on “Indictments, Informations and Presentments’" appended to Boyle v. Com., 14Gratt. 674.
    
   PUR CURIAM.

Judgment affirmed with costs.  