
    *Chahoon v. The Commonwealth.
    
    January Term, 1871,
    Richmond.
    .Joynes, J., absent, sick.
    i. Indictment before Arrest — Quaere—Is There a Right to Examination before Trial. — C. Is Indicted for felony In me Corporation court of R., the proper court to try him for the offence, when indicted he is not in custody, and has not been arrested or examined by a justice. Quvere: If he should be arrested and sent before a justice to be examined, or whether he may be taken on a capias, and tried upon the indictment, without an examination by a justice.
    2. Constitution — Effect on Existing Laws in Conflict Therewith. — The third section of the third article of the constitution, in relation to the qualification of jurors, does not operateproprio vigore, and without any legislation on the subject, to repeal all existing laws in conflict therewith; but until such legislation is had, the existing law continues in force.
    3. Same- Same — Case at Bar. — Even if this provision of the constitution did operate proprio vigore, a grand jury summoned and empaneled under the existing law, which requires that they should be freeholders, could not be objected to on this ground; it not appearing that they did not have the qualifications required by the constitution.
    4. Same — Statute—Venire Facias Should Conform to the Statute. — The act in force at the time of the adoption of the constitution, not haying been since altered by legislation, a venire facias for the trial of a prisoner for felony, should be conformed to the act; under the second and fourth sections of the schedule to the constitution.
    5. Forgery — Proof of Handwriting — Admissible Evi» dence. — Upon a trial for forgery, to prove that the paper was forged, a witness was introduced, who said that he knew H., the party whose signature was in question, and who was dead, about two years; was his tenant; had seen him write; thinks he knew his handwriting tolerably well; but could not swear to a particular signature as his, without knowing the fact; thought he had a sufficient knowledge or recollection of his signature to enable him to give an opinion as to the genuineness of his signature, though he would not swear absolutely above it. Says: I think it is not his handwriting; but at -The same time, I cannot say on oath positively it is not. This is admissible evidence.
    
      6. Same — Evidence—Pecuniary Condition of ObIigor,— On such a trial the Commonwealth may prove that H. was prompt in the payment of his debts, and that he owned a large property, real and personal, and was doing a good business.
    7. Same — How It Hay Be Committed. — Forgery of a paper may be by performing the act in person, or by being present, procuring and assisting in the forgery.
    8. Uttering Forged Paper — How It May Be Proved.— uttering a forged paper may be proved by showing that the prisoner attempted to employ as true, the forged writing, with a knowledge, at the time of the said attempt, that the same was forged, with the intent to defraud. And any assertion or declaration, by word or act, that the forged writing is good, with such knowledge or intent, is an uttering or attempt to employ as true, the said writing, if such assertion-or declaration was made in the prosecution of the purpose of obtaining the money mentioned in the said writing.
    9. Forgery — Failure of Accused to Produce Evidence in His Own Behalf — Effect.—To convict of forgery, the jury must be governed entirely by the testimony before them, and they must not presume or assume the guilt of the accused, by reason of his failure or neglect to produce evidence in his own behalf. But if the jury believe that it is in the power of the accused to produce evidence in elucidation of the subject matter of the charge against him, then his failure or neglect to produce such evidence may be considered by the jury, in connection with the other facts proved in the case.
    10. Same — In Fraud of Whom. — The forgery charged was the note of H., an unnaturalized foreigner. The forging or uttering it was in fraud of the adm’r of H., and the heirs of H„ if he had any, or the State, if he had none.
    u. Suit on Forged Note — Knowledge of Counsel— Effect. — The bringing a suit at law, as counsel, upon the forged note, and recovering judgment thereon, and the filing a bill to enforce payment of the judgment out of the real estate of H., and having the same sold and receiving the proceeds —the same being done with the knowledge that the note was a forgery — was an attempt to employ the said note as true, within the meaning of the statute.
    12. Jurisdiction of Hustings Court of Richmond.— Though the suit at law was brought in the County court of Henrico, and the suit in equity was in the Circuit court of Henrico, yet as both these courts were held within the limits of the city of Richmond, and the prisoner lived in the city, the Hustings court of the city had jurisdiction to try the prisoner.
    On the 4th of June, 1870, being: the May term of the court, in the court of Hustings for the city of Richmond, an indictment for forgery was found against *George Chahoon. The indictment contained four counts. The first count was for the forgery of a bond purporting to be assigned by Solomon Haunstein, promising to pay to John W. Thompson or order, on demand, the sum of seven thousand dollars, and dated the 1st of April, 1861. The second count was for uttering and attempting to employ as true the said bond, with intent to defraud. The third count was for forging an indorsement of the name of Thompson on said bond; and the fourth count was for uttering and attempting to employ the said endorsement, with intent to defraud.
    Chahoon not being in custody when the indictment was found against him, a capias was issued to bring him into court on the first day of the next term to answer the indictment. Under this capias he was brought into court at the same term, and gave bail with condition to appear at the next term of the court. He then appeared, and on his motion the trial was postponed until the September term; and then it was again continued until the October term.
    At the October term of the court the prisoner was arraigned; and he then, moved the court to quash the indictment, and to direct, by proper process, that he be taken before a justice of the peace in order that he might be examined for the offence with which he stands charged in the said indictmment; he not having been arrested or examined for said offence before the finding of the indictment. This motion the court overruled; and the prisoner excepted.
    When the prisoner was required to plead, he moved the court to quash the indictment, because the grand jury that found the indictment were required to be freeholders, because the officer who summoned them, summoned none but freeholders, and that the clerk, before they were sworn, demanded to know of each of them whether they were freeholders; which facts appeared *to the satisfaction of the court. But the court overruled the motion; and the prisoner excepted. This is his second exception. The prisoner then tendered a plea raising the same question; but the court rejected it; and he again excepted. This is his third exception.
    The prisoner then moved the court to quash the venire facias; upon the ground that it restricted the sergeant in summoning the venire, to freeholders only. And this motion the court sustained, and quashed the venire. And thereupon a new venire was ordered, directing the officer to summon twenty-four good and lawful men of the corporation, who are qualified to vote and hold office under the constitution of Virginia, and who reside remote from the place where the felony was committed, each of whom is twenty-one' years of age. The officer having returned the venire executed, the prisoner moved the court to quash it, because it was not in conformity to law, and for errors apparent on its face. But the court overruled the motion; and the prisoner again excepted. This is the fourth bill of exceptions.
    Upon the trial, the first witness introduced for the Commonwealth was Oscar Cranz. He had known Solomon Haunstein from about 18S2 to the time of his death, in April or May, 1861. He had had dealings with him during that period, and had frequently received orders from him for the purchase of liquors, but that these orders were very seldom in writing. He could not say how often he had seen his written orders ; had never seen him write; and from the few orders in writing he received, and the lapse of time, he could not give a decided opinion as to his handwriting; thinks he could remember it, but would not like to give an opinion about it after this lapse of time. Whereupon it was proposed by the Commonwealth to ask the witness whether, from his recollection of the *handwriting of Haunstein, the signature to the writing charged to be forged, which was then offered in evidence, was the signature of said Haunstein. To this question the prisoner objected: but the court overruled the objection; and permitted the question to be put to the witness: and the prisoner again excepted. This is his fifth exception.
    To the question stated above, the witness said: It is hard for me to give an answer; it looks like it, and it don’t look like it, as far as my recollection goes. Whereupon the Commonwealth proposed to the witness the following question: If you have an opinion, after an inspection of the signature before you, whether it is or is not the handwriting of Solomon Haunstein, declare it. To this question the prisoner excepted : but the court overruled the objection, and allowed the question to be put to the witness : and the prisoner excepted. This is his sixth exception.
    The Commonwealth introduced another witness — Emmanuel Francis — who stated that he knew Haunstein intimately; had known him twenty or twenty-one years; was familiar with his handwriting after he commenced business as keeper of a restaurant;. he did not believe the signature to the paper to be Haunstein’s : and he described some peculiarities in Haunstein’s genuine signatures. And then he was asked by the Commonwealth, Was Solomon Haunstein prompt or not in the payment of his debts? To this question the prisoner objected; but the court overruled the objection: and the prisoner excepted. This is his seventh exception.
    After the witness had answered the question stated in the last exception, he was further asked by the Commonwealth what were Haunstein’s circumstances about April, 1861, as to property, and whether he owned real estate in Richmond or elsewhere, and the witness had answered, he had plenty of money in his pocket, and ^property, real and personal, outside, and was doing a good business, the prisoner moved the court to reject both the question and answer aforesaid, and to direct the jury to disregard them; but the court refused to do so: and the prisoner again excepted. This is his eighth exception.
    The Commonwealth introduced another witness — John H. Gibbon — who said that he knew Haunstein about two years, having occupied one of his houses as his tenant, for about eighteen months; had seen him write several times; thinks he knew his handwriting tolerably well, but could not swear on oath, positively, that a particular signature was in his handwriting without knowing the fact that the signature was his. And he further stated that he thought he had a sufficient knowledge or recollection of his handwriting to enable him to give an opinion as to the genuineness of his signature; though he would not swear absolutely about it. The Commonwealth thereupon proposed to ask the witness whether, from his knowledge of Haun-stein’s handwriting, the signature to the writing named in the indictment was the signature of Haunstein or not. To which question the prisoner objected; but the court overruled the objection, and permitted the question to be put: and the prisoner again excepted. This is his ninth exception.
    After the foregoing exception was signed, the witness, in answer to the question, said: I think it is not his handwriting; but at the same time I cannot say on oath positively it is not. "Which answer the prisoner moved the court to exclude from the jury, and to instruct them to disregard the same as evidence. But the court overruled the motion: and the prisoner again excepted. This is his tenth exception.
    
      The Commonwealth introduced another witness — William Follies — the clerk of the County court of Henrico, who stated - that the prisoner brought to his ^office a declaration, with its accompanying paper, being the paper set out in the indictment, and directed process to issue thereon; and filed the same in his office. The witness produced the record of the case, which was the record of an action of debt in the County court, by Wm. Gleason, assignee of John W. Thompson, against Richard D. Sanxay, curator of the estate of Solomon Haunstein, dec’d, upon a bond for $7,OJO, purporting to be executed by Haun-stein to Thompson, and endorsed by Thompson, dated the 1st day of April, 1861. The record shewed that the office judgment had not been set aside, but was confirmed at the March term of the court for 1867. He was aslced whether there had been counsel marked for the defendant, and he replied, yes — Mr. J. H. Sands was marked on the record as counsel for the defendant. He was then asked if any plea was pleaded by him for defendant; and he answered no; that the judgment went by default. Whereupon, on cross-examination, it was asked by the prisoner if any reason had been given to him by the counsel for not filing a plea in the case. And thereupon the attorney for the Commonwealth asked witness if prisoner was present at the conversation ; to which witness replied he was not. And the Commonwealth then objected to the questiofr; and the court refused to permit the witness to answer the same; J. H. Sands, the counsel so marked for the de-fence, being then present in court at the time of the enquiry proposed. To this opinion of the court the prisoner again excepted. This is his eleventh exception.
    After the signing of the last mentioned bill of exception, the prisoner asked the witness whether Sanxay, the defendant in said action, was present with his counsel in the clerk’s office, and what was said by him as to why he would not defend the suit,' but let the judgment go by default: and it was proved that Sanxay *was dead. But the court refused to permit the said question to be put; Sands being present in court; and the prisoner not having been present at said conversation. And the prisoner again excepted. This is his twelfth exception.
    After all the evidence had been introduced, the prisoner moved the court to instruct the jury as follows:
    1st. That, to convict the accused upon the first and third counts in the indictment, they must be satisfied, from the evidence, that he actually and with his own hand forged the writing or endorsement therein named respectively, or some part thereof, with intent to defraud, and to the prejudice of another’s right.
    2d. That, to convict the accused upon the second and fourth counts in the indictment, the jury must be satisfied, from the evidence, that the accused uttered or attempted to employ as true, the forged writing, or the forged endorsement, therein respectively mentioned, with a knowledge at the time of the said uttering, or attempting to employ as true, that the same was forged, and with the intent therein charged.
    3d. That, to convict the accused upon the ■said last mentioned counts, the jury must be satisfied that, at the time the said forged writing and said endorsement were filed by the accused in the clerk’s office of the County court of Henrico, he knew that the same were forged.
    4th. That the bringing of a suit upon a forged paper, as counsel, does not amount in law to an uttering or attempting to employ the same as true.
    Sth. That, to convict the accused of the guilty knowledge imputed to him in the second and fourth counts in the indictment, it must be proved against him, as a substantive fact, bj"- the evidence in the cause, or by fair inferences therefrom; and that the law *does not presume guilty knowledge from any state of the proof against the accused.
    6th. That to convict the accused, the jury must be governed entirely by the testimony before them and the inferences therefrom; and that they must not presume or assume the guilt of the accused by reason of his failure or neglect to produce evidence in his own behalf.
    7th. That to convict the accused, the jury must be satisfied, beyond any reasonable doubt, as to the proof of every fact essential to his conviction ; and where the evidence as to the proof of any such fact is preponderating, without being conclusive, they must find for the accused.
    The court refused to give' these instructions in the form in which they were asked; and in lieu thereof gave the following :
    1st. That, in order to convict the accused upon the first and third counts in the indictment, they must be satisfied, from the evidence, that he himself 'with his own hand forged the said writing or endorsement therein named respectively, or some part thereof, or was present procuring or assisting in the forgery of said writing or endorsement, with intent to defraud, to the prejudice of another’s right.
    2d. That, to convict the accused upon the second and fourth counts in the indictment, the jury must be satisfied, from the evidence, that the accused uttered, or attempted to employ as true, the forged writing or the endorsement therein respectively mentioned, with the knowledge at the time of said uttering or attempting to employ as true, that the same were forged, and with the intent therein charged: but any assertion or declaration, by word or act, that the forged writing or endorsement is good, with such knowledge and intent, is' an uttering and attempting to employ as true of the said writing or endorsement.
    *3d. That the bringing of a suit upon a forged paper, as counsel, does not amount, in law, to an uttering or attempting to employ the same as true, unless the accused, at the time of bringing- such suit, knew that the paper was a forgery.
    4th. That to convict the accused under the second and fourth counts of the indictment, the guilty knowledge therein imputed to him must be proved by the evidence in the cause, or by fair inferences therefrom.
    5th. That to convict the accused the jury must be governed entirely by the testimony before them, and they must not presume or assume the guilt of the accused by reason of his failure or neglect to produce evidence in his own behalf; but that is a fact which, if it appears, maybe considered by the jury in connection with the other facts proved in the cause.
    6th. That to convict the accused, the jury must be satisfied, beyond any reasonable doubt, as to the proof of every fact essential to his conviction ; and where the evidence and the reasonable inferences therefrom leave any reasonable doubt upon the mind of the jury as to the proof of such fact, they must find for the accused. ■
    To the refusal of the court to give the instructions asked for, and to - the giving the instructions given by the court, the prisoner excepted. This is his thirteenth exception. The bill of exceptions contained a statement of all the evidence introduced on the trial; but a sufficient statement of it will be found in the opinion of the court.
    After a trial extending through ten days, the jury, on the 27th of October, 1870, found the prisoner not guilty on the first and third counts in the indictment, and guilty on the second and fourth counts, and ascertained the term of his imprisonment in the penitentiary at four years. The prisoner thereupon moved the court for a new trial, on the ground that the verdict *was contrary to the law and the evidence ; but the court overruled the motion, and refused to certify the facts, because the evidence was conflicting and contradictory.
    The prisoner then moved the court to set aside the verdict of the jury, on the ground that there was no evidence of an intention, on the part of the accused, to defraud the United States, or any State, or any county, corporation, officer or person. This motion the court overruled; and the prisoner excepted. He then moved the court to set aside the verdict, on the further ground that there was no evidence to shew that the writing in the indictment mentioned was uttered or attempted to be employed as true to any person, but was filed with a declaration in a suit at law in the clerk’s office of Henrico county court. This motion the court overruled; and the plaintiff excepted. And the prisoner then moved the court to set aside the verdict, on the ground that the alleged uttering and attempting to employ as true, occurred in the County court of Henrico, and within the jurisdiction of that court, and not within the jurisdiction of the Hustings court of the city of Richmond. But the court overruled the motion ; and the prisoner excepted.
    Upon overruling the three last motions to set aside the verdict of the jury, the court certified, upon the record, the facts proved bearing upon them respectively; and these facts are substantially as follows:
    Solomon Haunstein, an unnaturalized foreigner, died in the year 1861, in the city of Richmond, leaving no heirs, and seized and possessed of a large amount of real estate in the county of Henrico, and State of Virginia, as well as a good deal of personal property; said real estate being subject to escheat to the State of Virginia. The writing mentioned in the indictment was forged; and the accused, knowing it to be forged, uttered the same by claiming payment thereof from *the estate of Haunstein, by presenting and demanding payment of a claim based upon said forged writing, for the sum of seven thousand dollars, from Richard D. Sanxay, the curator of said estate. He, with such knowledge, brought suit upon the said writing, in the name of Gleason, assignee, against Sanxay, curator of said estate, and obtained judgment thereon, in the County court of Henrico. The accused thereupon filed a bill in the Circuit court of the county of Henrico, in the name of Gleason, , as-signee, against Sanxay, as curator of the estate of Haunstein, to enforce satisfaction of said judgment, by sale of said Haun-stein’s land, and obtained a decree in this suit, directing the sale of said land; had it sold under said decree, and received the proceeds of the sale.
    At the time these suits were brought, the County court held, and still holds, its sessions, and had, and has, its clerk’s office and courthouse within the corporate limits of the city of Richmond. The accused filed the bill, and obtained the decrees, and instituted the proceedings, and filed his receipt for $4,996 94, the nett proceeds of the sale of the real estate in the aforesaid chancery suit; and the Circuit court of Henrico county then held its sessions, and had its clerk’s office, in the capitol, in the city of Richmond. The accused and Sanxay lived in the city during the time of the alleged uttering and attempting to employ as true, the said forged writing by the accused; and the law office of the accused was in the city of Richmond during that time.
    After the aforementioned motions were made and overruled, the prisoner moved in arrest of judgment upon the verdict, which motion the court overruled; and* then passed sentence upon him. And the prisoner thereupon applied for and obtained a writ of error to this court.
    * Wells and Crump, for the prisoner. The Attorney General and George Wise, for the Commonwealth.
    Upon the first point the judges were divided, and delivered opinions upon it. On the other points they concurred in opinion, and on these points Moncure, P., delivered the judgment of the court.
    
      
      For monographic note on Juries, see end of case,
    
    
      
       Indictments — Right to Examination before Trial.— In Jackson v. Com., 23 Gratt. 925 et sea-, Monoure, P., in delivering the opinion of the court, said that the question whether, under the act of April 27,1867 (entitled “An act to revise and amend the criminal procedure”), a person indicted for felony in the proper court to try him — the person, when indicted, not being- in custody, nor having been arrested or examined by a justice — should be arrested and examined before a justice, or whether he might be taken on a capias and tried without examination, had been fully considered in the principal case and since the court there was equally di vided in opinion, the judgment of the lower court was affirmed, and Chahoon was tried and convicted without being previously examined by a justice. Moncure, P.. then continuing, said that, as there had been two sessions of the legislature since the decision of the principal case, and as neither session had changed the law nor passed any act declaratory of the meaning of the legislature in the existing law on the subject, it must be presumed that the legislature was satisfied with the decision of the principal case; and, therefore, the court was of the opinion that the decision in Chahoon’s Case must be accepted and regarded as a settlement of the question as to the proper construction of the said act. Christian, J., while he had not changed his opinion, as laid down in the principal case, acquiesced in the decision of Monoure, P., above laid down. Staples, J., concurred in the decision because he thought the prisoner had waived his right to examination by a justice. Anderson concurred in the opinion of Mon-oure; while Bouidin, J„ dissented. See principal case cited in Chahoon's Case, 21 Gratt. 825. The point was also discussed in Butler v. Com., 81 Va. 161. The principal case, however, is also cited by the court in Jones v. Com., 86 Va. 661, 10 S. E. Rep. 1005. In this last case, the offence was committed in October 1887; and the court said at p. 662: “At the time of the commission of the offence the law required that the prisoner should- be sent before the justice of the peace to be examined. Acts 1885-6; Chahoon’s Case, 20 Gratt. 764; Jackson’s Case, 23 Gratt. 919; Butler v. Com., 81 Va. 161.”
      See generally, monographic mofe on “Indictments.”
    
    
      
       Constitution — Effect on Existing Laws in Conflict Therewith. — In Supervisors v. Stout, 9 W. Va. 705, the principal case is cited as authority for the proposition that where legislation is necessary to give effect to a constitutional provision, laws in existence when a new constitution is adopted remain the law until legislation is had to enforce the provision of the constitution which conflicts with the old law. The principal case is also cited as authority on this point in Johnson v. City of Parkersburg, 16 W. Va. 422.
    
    
      
      
         Forgery — Evidence—Pecuniary Condition of the Accused. — In State v. Henderson, 29 W. Va. 164, 1 S. E. Rep. 237, the court said, that the same reason, which, in the principal case, admitted evidence to prove the pecuniary condition of him whose name was forged to the bond, would permit evidence in the case at bar to show that the person in whose favor the alleged receipt was executed, was, at the time, in embarrassed circumstances, so as to show that it would not be probable that he could have paid so large a sum.
      See generally, monographic note on “Forgery and Counterfeiting" appended to Coleman v. Com., 25 Gratt. 865.
    
    
      
       Failure of Accused to Produce Evidence in His Own Behalf — Effect.—In Goodman v. R. & D. R. Co., 81 Va. 584, the court said: “Monoube. P., inChahoon’s Case, 20 Gratt. 797, says: ‘The conduct of a party in omitting to produce that evidence in elucidation of the subj ect-matter in dispute, which is within his power, and which rests peculiarly within his knowledge, frequently affords occasions for strong presumptions against him, since it raises a strong suspicion, that such evidence, if adduced, would operate to his prejudice.’ ”
    
    
      
       jurisdiction of Courts. — See the decision of the principal case approved in Sands’ Case, 20 Gratt. 824.
      In Supervisors v. Cox, 98 Va. 274, 36 S. E. Rep. 380, the court said: “The courthouse and other public buildings of a number of the counties of the State are situated in cities within the territorial limits of the counties, and it has been held by this court that jurisdiction over the locality is in the court of the city, and not in the court of the county. Fitch's Case, 92 Va. 824, 24 S. E. Rep. 272, and Chahoon’s Case, 20 Gratt. 733.”
      - For a continuation of the principal case, see Cha-hoon’s Case, 21 Gratt. 822.
    
   MONCURE, P.

The first error assigned in this case is, the refusal of the court to remand the accused for examination before a justice of the peace, when he was arraigned, to answer the indictment found against him..

This assignment of error rests upon the view, that, as the law now stands, a person accused of felony, no matter how accused, and even though accused by an indictment found by a grand jury in a court of competent jurisdiction to try him, is yet entitled, as matter of right, to be examined by a justice of the peace before he can be put upon his trial.

With all deference for the opinions of those who differ with me, I think that view of the law is unsound.

The question arises as to the true construction of the act passed April 27, 1867, entitled “An act to revise and amend the criminal procedure.” Acts of Assembly 1866-’67, pp. 915-946, chap. 118.

This act made radical changes-in the code of criminal procedure. Its main intent was to expedite the trial of persons charged with crime, and thus to prevent the unnecessarily long confinement of such persons in jail, and to save unnecessarj’’ expense to the Commonwealth. Its chief inducement, no doubt, was the effect produced by the abolition of slavery, in making it necessary that white people and negroes, being put upon an equality in this respect, should be prosecuted, tried and punished in the same manner'.

The cardinal changes thus made by the act were: *the abolition of examining courts, and giving to the county and corporation courts, at any term thereof, exclusive jurisdiction in trials for felony, except that a person to be tried for a felonj’’ punishable with death, or for any one of certain other enumerated felonies, may, upon his arraignment in the County or Corporation court, demand to be tried in the Circuit court having jurisdiction of the said county or corporation; but no such demand shall be allowed in any Corporation or Hustings court held by a judge, and in which, by especial statute, capital felonies may now be tried. Chapter 205 of the Code of 1860, concerning “examining courts,” was entirely repealed, and nothing was enacted in its stead. The same may be said of chapter 212, “of proceedings against negroes.” The other chapters, concerning criminal procedure, to wit: chapters 201, 202, 203, 204, 206, 207, 208, 209, and 210, 211, were amended and re-enacted, making no further changes in the substance or language of the old law than seemed to be required by the intent and object of the new. Several sections of these chapters, as they stood in the Code, were copied with little or no change in the amendatory act, although they were originally prepared with reference to the system of criminal procedure which then existed, and especially to the institution of examining courts, which formed an important part of that system; but which, as we have seen, was abolished by the amend-atory act. We must bear this fact in mind in construing this act, and so interpret these sections as to give effect, as far as we can, to the intent and meaning of the Legislature.

Two of the sections referred to being those on which, chiefly, the question we are now considering arises, are 15 and 16,. of chapter 207, which, as they stand in the amendatory act of 1866-’67 (Session Acts p. 929), are in these words:

15. Upon a presentment, indictment or information *of a felony, for which the party charged has not been arrested, the presiding judge or justice shall issue a warrant to any sheriff, sergeant or constable, commanding him to arrest such party and carry him before a justice of the county or corporation in which he ought to be tried, and to summon the witnesses on whose information the presentment, indictment or information was made, to appear and testify before the justice. The justice to whom such warrant is returned, shall proceed in the case as if the warrant had been issued by himself.

16. When a presentment is made or indictment found in a case, other than that provided for in the preceding section, if it be in a Circuit court, a copy of such presentment or indictment, and of all papers relating to the case, shall be certified by the clerk to the court of the county or corporation in which the offence is charged to have been committed. Upon such presentment or indictment, and upon any like presentment or indictment made or found, or information filed in such County or Corporation court, process shall be awarded bjr the court, or be issued by the clerk thereof, in vacation. Such process, if the prosecution be for a felony, shall be a capias ; if it be for a misdemeanor, for which an infamous or corporal punishment may be inflicted, it may be a capias or a summons, at the discretion of the court; in all other cases it shall be, in the first instance, a summons; but if a summons be returned executed, or two be returned not found, and the defendant do not appear, the court may award a capias. All copies certified under this section shall be used with the same effect as the originals.

The counsel for the plaintiff in error insist, that under the 15th section, a party charged with a felony is entitled of right to an examination before a justice of the county or corporation in which he ought to be tried, before he can be put upon his trial, just as he *would have been entitled to an examination by an examining court under the former law; although one of the counsel seemed to think that, to sustain that construction of the 15th section, it would be necessary to disregard and strike out of the 16th section the words: “if the prosecution be for a felony (such process) shall be a capias.”

I differ with the learned counsel in this construction, and think that a party charged with felony is not entitled, as matter of right, to an examination by a justice before he can be put upon his trial, according to the true construction of the law as it now stands. And this view seems to me to be strongly sustained, both by reason and authority. It would require plain language to satisfy me that the Legislature, while they expressly abolished examining courts, at the same time intended to put a single justice in the place of such courts— that is, in the place of a court of five justices. This would be contrary to the plain policy of the amendatory act, which was to avoid unnecessary delay and expense by abolishing examining courts and otherwise. These courts were in existence in Virginia for a very long period, and were held in high esteem by the public. They were originally established, no doubt, to secure to an accused the benefit of an examination by a court of the county in which the of-fence was charged to have been committed (generally his own county), before he could be sent to the General court (which might be held at a great distance from him) for trial. Afterwards, when the jurisdiction of the General court in the trial of criminal cases was distributed among the District courts, the same reason existed, though not to so great an extent, for the continuance of examining courts; and they were accordingly continued during the existence of those courts. And even after those courts were abolished, and their jurisdiction in criminal cases was transferred to superior courts held in the ^counties and corporations respectively; though the reason which had previously existed for the institution of examining courts then apparently ceased to exist, yet the public had become so wedded to the institution by long use and habit, that it was continued in existence down to its abolition by the act of 1866-’67. The examination of an accused, by a justice of the peace, was never considered in Virginia as a matter of right, but merely as a means to an end: that is, as a means of bringing the accused to justice, and giving him the benefit of an examining court, to which he was entitled by law, and which could only be called by the warrant of a justice of the peace. When examining courts were abolished, the necessity for a preliminary examination by a justice of the peace, in order to the constitution of such a court, also ceased; and there was then no occasion for an examination by a justice, except as a means of bringing the accused to justice.

Generally, a prosecution for felony is commenced by a complaint before a justice of the peace, and a warrant issued by him to arrest the accused and bring him before the same or some other justice to be examined and disposed of according to law; and this is the case as well now as it was before the abolition of examining courts. It is the most convenient mode of bringing the accused to justice; that is,of compelling him to answer an indictment found, or to be found, against him, in a court of competent jurisdiction for his trial. But where he is already in the custody of the court in which such an indictment is so found, or can be brought into such custody by a capias, issued under the 16th section of the act, to compel him to answer the indictment, there is no occasion for any examination by a justice. And now let us see which of these two conflicting constructions of the act— that of the counsel of the accused, or that which I maintain — is more conformable *to the terms of the 15th and 16th sections, and of the other parts of the act.

The 15th section was intended to apply, and expressly does apply, only to a case of felony. “Upon a presentment, indictment or information of a felony,” is the language in which it commences. And it thus proceeds: “For which the party charged has not been arrested, the presiding judge or justice shall issue a warrant. ’ ’ From which it is argued that whenever the party charged, whether it be in a court of competent jurisdiction to try him, or any other court, has not been arrested, a bench warrant, and not a capais, must of necessity be issued against him. By reference to 1 Rev. Co. 1819, p. 605, ch. 169, $ 20, we see the source from which \ 15 of the present law was derived; and we plainly see the original meaning and object of the provision. It there commences thus: “When a presentment shall be made by a grand jury of this Commonwealth in any of the Superior courts thereof having criminal jurisdiction, of a felony committed by any person, and the person so presented would be entitled to a trial before an examining court of his or her county, it shall be the duty of the judge who presides, when such presentment is made, to issue his warrant, ” &c. All persons charged with felony were then entitled to the benefit of an examining court. So that the provision applied to cases only in which the party presented had not had such benefit, and one of the objects, if not the main object of the provision, plainly was to secure to him that benefit. In the act of 1847-8, Acts of Assembly, pp. 93-164, called the “Criminal Code,” this provision is revised, amended and embodied, and constitutes section 16 of chapter 20 of that Code. That section made some formal, but no very material change of the former law. Instead of saying, as § 20 of the act of 1819 did, ‘ ‘and the person so presented would be entitled to a trial before an examining court,” *it said, “for which the party charged therewith shall not have been already arrested. ’ ’ Now, this was a merely verbal, and not a material change of the act of 1819. A party who had been examined had, of necessity, already been arrested; whereas, a party who had not been examined, had not, at least as a general thing, already been arrested. And the legislature of 1847-8, in saying, “shall not have been already arrested,” intended in effect to say, “would be entitled to a trial before an examining court.” Perhaps the meaning would have been plainer if the language of the old law had remained unchanged; but I am confident that no change of meaning was intended by the change made in the language. Another, and perhaps the only other change made by ü 16, chapter 20 of the “Criminal Code,” may be considered of more importance. It required the party, when arrested, to be" carried before some justice of the peace of the county or corporation in which the offence might be charged to have been committed, in order that the case might be proceeded within the same manner as if the arrest had been by virtue of a warrant originally issued by himj whereas § 20 of the act of 1819 required the party, when arrested, to be committed to the jail of the county where the offence might be charged to have been committed; whereupon the jailor was required to notify some justice of the peace of the county, thereof, who was required to issue his warrant for summoning a court of examination, as in other cases. Now this change is not so material as would seem to be supposed, if in fact it be of any materiality. It seems to be supposed that it tends to show that the Legislature of 1847-8 thereby recognized that a party charged with a felony was entitled, in all caises and notwithstanding he may have been presented therefor by a grand jury, not only to the benefit of an examining court, but also to the *benefit of a preliminary examination by a justice of the peace. In other words, that this latter examination was an independent-right of the'accused, and not a mere incident of the examining court. Such, I think, was plainly not the fact. The Legislature of 1819 considered the presentment of the grand jury as a sufficient foundation for calling a court of examination, and therefore directed the accused to be committed to jail, and the jailor to notify a justice of the fact, and the justice to issue his warrant to summon a court. The Legislature of 1847-8 no doubt agreed with that of 1819 in so considering; but it occurred to them that it would be one link less in the chain of proceeding to carry the accused directly before a justice, instead of committing him to jail, and that the accused might avoid being committed to jail by satisfying the justice of his innocence of the offence charged, or at least by giving bail, if the offence was a bailable one; and therefore the change was made.

The 16th section of chapter 20 of the act of 1847-8, was copied, almost literally, into the Code of 1849, at least only verbal changes were made therein; and the same provision remained unchanged, until the passage of the act of 1866-7. In the Codes of 1849 and 1860, it formed the 15th section of ch. 207. And in the act of 1866-7, the same provision, as then amended, forms the same section of the same chapter.

Why, then, it may be asked, was the provision retained at all in that act, since the examining courts, which had chiefly, if not entirely, been the cause of its adoption originally, were thereby themselves abolished? And why were the words “indictment or information” inserted in the section as it is embodied in that act?

Although the chief office of the provision was to afford a means of haying a person | presented of felony carried before an examining court, to the benefit of *which he was entitled, before he could be tried for the offence, yet that was not its only office. It served another purpose, which it might continue to serve, and -with more 'effect, under the act of 1866-7. A person might be presented of a felony in a court which had no jurisdiction of the case; and then it was necessary to have the accused arrested and carried before a justice of the county in which the offence was charged to have been committed, in order that it might be prosecuted there. In such a case, of course it would have been improper to issue a capias, and the only mode of causing an arrest and carrying on the prosecution, was by issuing such a warranffas is directed to be issued by the provision in question. That this was one of the purposes of the provision, is plainly apparent from its very words, which direct the accused to be carried before “a justice of the county or corporation in which he ought to be tried;” not “in which he was presented:” thus showing that the Legislature had in their contemplation cases in which a felony committed in one county might be presented in another. The language of the provision, from its first adoption in our code of criminal procedure, has been substantially the same in this respect. This useful purpose of the provision, as I have already said, it may continue to serve, and with more effect, under the new act. For there is now occasion for it, not only where a person is presented of a felony committed in another county, but also where he is presented in a Circuit court of a felony committed in the same county in which the court is held. In either case, a bench warrant, as it is called, is necessary, or at least convenient, as a means of securing the arrest and prosecution of the accused. The Circuit courts have now no jurisdiction to try felonies, except certain cases to be brought before them in a certain manner prescribed by law. Therefore, the provision has been retained in the present law. But, it may be *said, that the Legislature might have directed an indictment found in a Circuit court, for a felony committed in the county in which the court is held, to be certified to the County court of such county for trial, as is provided in the case of an indictment for a misdemeanor. Still, the case of a presentment for a felony committed in another county would be left unprovided for. And even in the case of a felony committed in the same county, if the indictment were directed to be certified to the County court for trial, some time would necessarily elapse before a capias could be awarded by the county court in such case, during which time there would be danger of an escape from justice by the accused. The provision in question, which the Legislature of 1866-’7 found already in the code of criminal procedure which they were then revising, seemed to answer well the purpose in view, and it was therefore retained, as everything- in the former law was which did not plainly conflict with the scheme which they contemplated in making the revision.

As to the words “indictment or information,” inserted in the 15th section of the amendatory act, these words were no doubt inserted after the word presentment (which alone was rised as descriptive of the form of the charge in the provision as it stood in former laws), because it had just been said, in the 1st section of the same chapter as amended, that “prosecution for offences against the Commonwealth, unless otherwise provided, shall be by presentment, indictment or information;” and conformity seemed to require that the same words should be used in the 15th section. The Legislature may have supposed that the word “presentment” did not comprehend “indictment,” as it does; and it was used in that comprehensive sense, in the provision as it stood in former laws. As to the word “information, ”it was not comprehended in the word presentment, and it could only have been used *for conformity, as before stated, and because it might happen that an information might be filed charging a person with felony, merely for the purpose of having him arrested by a bench warrant and carried before a justice of the proper county for prosecution. It could have been inserted for no other purpose, because a person cannot be prosecuted for felony by information, but only by indictment. See § 2, chap. 207 of the amended act, and Matthews’ and Garner’s cases, 18 Gratt. 989.

And now let us examine the next, or 16th, section of chapter 207, hereinbefore set out, and enquire what effect that has upon the question under consideration. I think it strongly confirms my view of that question. It commences thus : ‘ ‘ When a presentment is made, or indictment found, in a case other than that provided for in the preceding section, if it be in a Circuit court, a copy of such presentment or indictment, and of all papers relating to the case, shall be certified by the clerk to the court of the county or corporation in which the offence is charged to have been committed.” We notice here that the word “information,” which occurs in the preceding section, is dropped in this. Why so, does not appear, unless it was because an information, being a mere charge drawn by the attorney for the Commonwealth, the Legislature supposed, that instead of directing an information to be certified from one court to another, for the purpose of having process issued thereon; a simpler process would be to file a new information in the court of the county in which the offence is charged to have been committed. Still no means are provided for causing the new information to be filed. This omission of the word “information” is more strange when we see that it occurs in the section as it stood in the act of 1847-8, and in the Codes of 1849 and 1860, while the word “indictment” does not there occur, though it is expressed in the section *as it stands in the present law. Why it does not there occur, is explained by the fact that the word “presentment” was there used in its generic sense, which comprehends an indictment. The words “presentment” and “indictment,” as used in the commencement of 'i 16 of the present law, refer only to presentments and indictments made or found in a Circuit court and in cases of misdemeanor. That they are so confined as to a Circuit court, is expressly declared in the section. That they are so confined as to cases of misdemeanor, is apparent from the words, “other than that provided for in the preceding section;” the case there provided for being only a case of felony. These words “presentment” and “indictment” have not here precisely the same application which the words “presentment” and “information” have in the corresponding section of the act of 1847-8, and the Codes of 1849 and 1860. That is, the words “other than that provided for in the preceding section,” have not precisely the same meaning or effect in the present law which they had in those Codes. As there used they served to show that the words “presentment” and “information,” in the 16th section, referred not only to all cases of misdemeanor, but also to certain cases of felony; that is, a case of felony other than that provided for in the preceding section, which was a felony for which the party had not ‘ ‘been arrested, ’ ’ according to the language of the act of 1847-8, and the Codes of 1849 and 1860, or for which he “would be entitled to a trial before an examining court,” according to the language of the Code of 1819; which, as we have seen, meant the same thing. That the words “presentment” and “information,” as used in the 16th section of chapter 207 of the Code of 1849, were intended to refer to certain cases of felony, is shown by the fact that the revisors, in their report, supposing that there was a conflict between 'i‘i 16 and 17 of the *20th chapter of the act of 1847-8, recommended that it should be avoided by inserting certain words in the 16th section of chapter 207 of the Code (which corresponds with the 17th section of chapter 20 of the act of 1847-8), so as plainly to confine the operation of that section to cases of misdemeanor. But the Legislature rejected their proposed amendment, and instead of the words recommended by them, inserted the words “ in a case other than that provided for in the preceding section,” which we find in the law as it now stands. Thus showing clearly that the 16th section was intended to embrace in its operation a case of felony not embraced in the operation of the 15th section; and as that section, as we have seen, was confined to a presentment of a felony for which the party charged had not been arrested; that is, had not had the benefit of a trial before an examining court, § 16 was intended to embrace a case of felony in which he had already had such benefit, but was not in custody at the time of finding the indictment, as he might not be by reason of his escape, or if bailed, by his failure to appear in discharge of his recognizance.

The 16th section, as it stands in the present law, then proceeds: “Upon such presentment or indictment, and upon any like presentment or indictment made or found, or information filed in such county or corporation court, process shall be awarded by the court, or be issued by the clerk thereof in vacation.” The word “such,” last used, refers to the “county or corporation in which the offence is charged to have been committed,” as mentioned just above. And the words “upon any like presentment or indictment made or found,” embraces cases of felony as well as misdemeanor; as plainly appears from what follows, which is, “Such process, if the prosecution be for a felony, shall be a capias; if it be for a misdemeanor, for which an infamous or corporal punishment may be inflicted, *it may be a capias or a summons, at the discretion of the court; in all other cases it shall be, in the first instance, . a summons; but if a summons be returned executed, or two be returned ‘not found,’ and the defendant do not appear, the court may award a capias.” This last clause, in regard to process, formed the subject of a separate section in the act of 1847-8, while it is embodied in the 16th section of the act of 1866-7; but its meaning is the same in both.

My construction of the 15th and 16th sections then is, that the 15th is confined to cases where the charge of felony is made in a court not having jurisdiction to try the offence, whether such court be a Circuit, County or Corporation court; while the 16th section applies to cases where the charge, whether it be for felony or misdemeanor, is before a court having jurisdiction to try the offence, that is, 1 ‘ the court of the county or corporation in which the offence is charged to have been committed:” including in the latter cases a presentment or indictment for a misdemeanor, certified to such court by the clerk of a Circuit court, as required by the section. In the former case, a capias to answer the charge is not the proper process for the arrest of the accused, because he cannot answer it in a court not having jurisdiction to try it, and therefore a warrant is directed to be issued to arrest him, “and carry him before a justice of the county or corporation in which he ought to be tried,” who is to “proceed in the case as if the warrant had been issued by himself.” In the latter case, that is, in regard to the 16th section, there being a proper charge before a court of competent jurisdiction to try it, nothing remains to be done in order to its trial, but to compel the accused, by proper process, to answer the charge. Accordingly, the section directs such process to be thereupon awarded or issued, and prescribes what the process shall be, declaring *that it shall be a capias, if the prosecution be for a felony. If it be asked, why did not the legislature direct the presentment, &c., mentioned in the 15th section to be certified to the court of the county or corporation in which the offence is charged to have been committed, as is done by the 16th section in regard to a misdemeanor, instead of directing a warrant to be issued? The answer is, that it would produce delay in the arrest of the accused to send the charge to another court, in order that process might be awarded therein, instead of issuing a warrant immediately against him; and, hearing of the charge, as he no doubt soon would, he would be apt to make his escape before he could be arrested. Other reasons might be suggested, but it is unnecessary.

Again, it may be said that a person might be arrested under a capias in a distant county from that in which he would have to be tried, and be carried to the latter county, and there committed to jail; whereas, by being carried under a warrant before a justice, he might be able to show that he was not guilty of the offence, and obtain his discharge, or might be admitted to bail. The answer is, that this possible inconvenience is obviated in a great degree, if not entirely, by the right which he has to obtain relief by habeas corpus, and by a speedy trial of the case, which the law secures to him.

But whatever arguments, ab inconvenienti or otherwise, may be made against the construction for which I contend, I think they are greatly outweighed by the reasons which exist in support of that construction. I cannot bring my mind to the belief that the Legislature, in abolishing the examining courts, intended at the same time to make an examination by a justice of the peace, indispensably necessary before there can be a trial for felony, even though the charge be made by ^indictment found by a grand jury of the county or corporation in which the offence is charged to have been committed, and in a court of competent jurisdiction to try the offence. If the Legislature had so intended, they would not have left so very important a matter to be vaguely inferred from language which, I think, admits, much more plausibly and reasonably, of a different construction ; but would have expressly declared such intention, as they did in the former law in regard to examining courts. The law in regard to those courts, as it stood in the Code when the act of 1866-7 was passed, declared that, “before a white person, charged with a felony-, is tried before a Circuit court, he shall be examined as hereinafter provided, unless, by his assent, entered of record in such court, such examination be dispensed with.” Code of 1860, ch. 205, £ 1, p. 827. And it further declared, that “if the court, in which a person is examined as aforesaid, discharge him, he shall not thereafter be questioned or tried for the same offence.” Id. £ 11, p. 828. Thus, in substance, the law had been for a great many years. Is it credible that the Legislature of 1866-7, with the Code of criminal procedure, containing these two important provisions, "before their eyes, and engaged in the work of revising and amending it, would have repealed the whole chapter containing these provisions, without expressly declaring, if they had so intended, that, before a person charged with a felony is tried therefor, he shall be examined before a justice of the peace, &c. ? Not only would they have so declared, but they would also, no doubt, have further declared what should be the effect of a discharge by such justice, and whether it should be, as was the case in regard to an examining court, that the accused should “not thereafter be questioned or tried for the same offence. ’ Instead of so expressly declaring their intention, if it existed, they have left us to infer it, *with great difficulty, in regard to the necessity of an examination before a justice; and they have left us in total darkness, as to what would be the effect of a discharge by such justice; and whether or not it would be necessary, in case the accused was committed or recognized for trial, to have a new indictment found by the grand jury, even though one may already have been found against him in the court which has to try the offence.

The construction for which I contend, is expressly maintained by the decision of the late “Military Court of Appeals,” in the case of Shelly v. The Commonwealth, 19 Gratt. 652; and I entirely concur in the opinion of the court in that case. It is also strongly maintained by the decisions in Clore’s case, 8 Gratt. 606; and Wormeley’s case, 10 Ib. 658. In Clore’s case, there was a motion to quash, and a plea in abatement, on the ground of alleged irregularities in the proceedings before the justice who committed the accused for examination by the County court, without any previous enquiry or examination into the truth of the offence by the justice himself. On this subject, Judge Lomax, in delivering the opinion of the court, said: “No precedent has been referred to for sustaining either a plea in abatement, or a motion to quash, upon the ground of such irregularities in the initiatory proceedings of the justice, which are designed merely to ascertain that there is a degree of suspicion against the accused, requiring that he should be held in custody until a more solemn examination can be had as to the probabilities of the charge, and a trial had of his guilt or innocence. Whatever inconveniences he may complain of, as to the examination or want of examination before the justice, they can have no relevancy as objections to the indictment, which has given the sanction ‘of the ‘ grand inquest of the county to the charge for which the justice committed him. At that stage of the proceedings, *after the finding of the grand jury upon the examinations and proofs before them, charging him with the murder, what de-fence, in reason or in law, can or ought it to be to the prisoner, that the justice who committed him for the crime, did not, in his prior examination, examine the case according to legaljrules of evidence?” The court then refers to the case of the Commonwealth v. Murray, 2 Va. Cases, 504, as giving a decisive answer to the question, and thus proceeds: “The principle of that decision is not at all varied, because of any subsequent amendments of the law in ch. 204, Code of 1849, relating to arrest, commitment and bail.” These views are fully sustained by this court in Wormeley’s case, cited supra. See the opinion of the court, delivered by Judge Daniel, pp. 666-670. These cases clearly show, that a preliminary examination by a justice was never regarded in Virginia as a necessity in a criminal case, further than as a means of summoning or authorizing a court of examination in a case of felony; and that the act of 1847-8 produced no change of the law in that respect. The act of 1866-7 has given no greater effect to the examination by a justice than it formerly had. And, as it owed its necessity at any time only to the existence of examining courts, it seems to follow, as a matter of course, that such necessity, if it can be so called, ceased to exist when the examining courts ceased to exist.

I owe an explanation for having said so much upon this question. I have done so, because, 1st, the question is a most important one; 2dly, it was argued at very great length by the learned counsel of the plaintiff in error, who much relied on the assignment of error on which it arises; and, 3dly, there is a diversity of opinion upon it among the judges of this court, now in session.

Since writing the foregoing opinion, I have heard read, in conference, the opinion about to be delivered *by mj' brother Staples; which, though certainly able and ingenious, has yet produced no change of the views I have presented. But I have already said so much on the subject, that I would be inexcusable in prolonging this opinion to much, if any extent, for the purpose of further enforcing the views I have already presented, or of presenting other views suggested by his opinion. I will venture, however, to say this much at least, that his construction requires us to strike out of the 16th section the important words: Such process, “if the prosecution be for a felonj’;” not because they are unmeaning, and mere surplusage, but because they are in direct conflict with what goes before in the same section, according to his construction of it? That construction also requires us to confine the words “presentment” and “indictment,” wherever they occur in the previous part of the section, to a case of misdemeanor, although “misdemeanor” is not once mentioned in that part of the section, and although the word “indictment” at least, if not “presentment” also, applies as well, in its ordinary and proper signification, to felony as to misdemeanor. But a more serious, and to me an insuperable obstacle in the way of that construction is, that it requires us to believe that the Legislature, while abolishing examining courts, intended to make an examination by a single justice, a matter of necessity, before a person can be tried for a felony, though indicted therefor in solemn form by a grand jury of the county in which the offence is charged to have been committed; and that the legislature conveyed so important an intention, not in express and apt language, which was plainly called for, but by leaving it to be inferred from equivocal words, which may have no such meaning. On the other hand, my construction leaves the 16th section unchanged and in full force, according to its literal, and, as I think, true meaning, except that the word “like,” *where it occurs has, I think, no material meaning; and it is only necessary to supply the words, “in a court not having jurisdiction to try it,” after the word “felony,” in the second line of the ISth section (which words, indeed, seem to be implied by the rest of the section), to express plainly the meaning of the Legislature, in my view of it. And then I get rid of the insuperable difficulty before referred to. But, whether it was intended to confine the 15th section to courts not having jurisdiction of the offence,or to extend it also to courts having such jurisdiction; still, I think, it was not intended thereby to give a person accused of felony a right to be examined by a justice before he can be tried for the offence; but its only object was, to insure the arrest of the accused, in order that he may be tried for the offence: It is directory, not mandatory. Upon a presentment, indictment or information of a felony, some legal' means must at once be used to have the accused arrested, in order that he may be tried for the offence. The best means, according to the circumstances of each particular case, which the law affords for that purpose, ought to be used by the court. If the court in which the presentment, &c., is made, has no jurisdiction to try the offence, then the best means would generally be a warrant, as directed by the 15th section. But, if an indictment for a felony is found in a court having jurisdiction to try the offence, then generally, if not always the best means, would be a capias, which is the proper process to compel an answer to an indictment of felony, as well by the common law as by the statute, which, in this respect, is only declaratory of the common law.

I am of opinion that the Hustings court did not err in refusing to remand the accused for examination before a justice of the peace, when he was arraigned to answer the indictment found against him.

^STAPLES, J.

No one entertains a higher respect than myself for the opinions of the president of this court. His enlarged and varied experience as a judge, and as one of the revisors of the Code of 1849, and his thorough knowledge of the Virginia statutes, entitle his views, touching the construction of these statutes, to peculiar consideration and respect. It is, therefore, with real regret, and no little distrust, that I venture to express my dissent from the opinion he has delivered.

I think it was the duty of the judge of the Hustings court, after indictment found, to issue a warrant against the accused, under which he ought to have beeh arrested and taken before a justice, with a view to the preliminary examination prescribed by the statute; and that the accused could not, against his consent, be put upon his trial without such preliminary examination.

I propose to state at length the reasons which have conducted me to this conclusion. The 15th section of chap. 207, Acts of 1866-’67, provides that “upon a presentment, indictment or information of a felony, for which the party charged has not been arrested, the presiding judge or justice shall issue a warrant to any sheriff, sergeant or constable, commanding him to arrest such party and carry him before a justice of the county or corporation in which he ought to be tried; and to summon the witnesses on whose information the presentment, indictment or information was made, to appear and testify before the justice. ' The justice to whom such warrant is returnable shall proceed in the case as if the warrant had been issued by himself.”

The 16th section provides: “When a presentment is made, or indictment found, in a case other than that provided for in the preceding section, if it be in a Circuit court, a copy of such presentment or indictment, and of all papers relating to the case, shall be certified by *the clerk ■to the court of the county or corporation in which the offence is charged to have been committed. Upon such presentment or indictment, and upon any like presentment, indictment or information, filed in such County or Corporation court, process shall be awarded by the court, or be issued by the clerk thereof in vacation. Such process, if the prosecution be for a felony, shall be a capias. If it be for a misde-maenor for which an infamous or corporal punishment may be inflicted, it may be a capias or a summons, at the discretion of the court; in all other cases it shall be in the first instance a summons.”

The action of the court below, in awarding the capias, and in refusing to send the accused to a justice for examination, was doubtless based upon the provisions of the 16th section. That there is an apparent conflict between the two sections is universally conceded. The 15th section is positive, in terms requiring the presiding judge or justice, upon presentment made or indictment found of a felony, for which the accused has not been arrested, to issue his warrant for the apprehension of the accused. The 16th seems to be equally positive that the process in a prosecution for a felony shall be a capias. How are these conflicting provisions to be reconciled, one with the other? When an indictment is found, what is to be done by the presiding judge? Is he to issue a warrant or capias? Shall 'the accused be arrested. and put upon his trial, or taken before a justice for examination?

It is well settled that when a doubt arises upon the construction of a statute, all acts on the same subject matter are to be taken together and examined, in order to arrive at the legislative intent. In The Earl of Ailesberry v. Patterson, Douglas R. 20, Dord Mansfield said, ‘ ‘Where there are different statutes, in pari materia, though made at different times, or even expired and not referring to each other, they shall be taken and '“'construed together as one system, and as explanatory of each other.” And in Bassey v. Storey, 4 Barn. & Ad. 98-108, Parke, J., said, “The provisions of a repealed act of Parliament were important as aiding in the construction of the enactments of existing statutes.” An examination of the earlier legislation of the State, regulating criminal proceedings, will tend to remove some of the difficulties in the way of construing and harmonizing the sections cited, in order to give effect to each.

In the year 1792, jurisdiction in cases of treason and felony was conferred upon the District court. Previous to that time it was vested exclusively in the General court. When a free person was charged before a justice with treason or other felony, a warrant was issued for his arrest; if, in the opinion of the justice, the charge deserved Investigation, the accused was committed to jail to await an examination before the County court. If, upon such examination, the justices of said court thought the evidence sufficient to convict the prisoner of treason or felony, they remanded him to the jail of the county, and thence he was removed by mittimus to the public jail, or he was bailed for his appearance before the District court having jurisdiction; where he was tried upon indictment found by a grand jury empanelled in that court. If the accused was already in custody at the time of finding the indictment, no other process was necessary, and he was immediately arraigned and tried. If he was on bail and did not appear, or if, being in custody, he escaped and did not appear in answer to the indictment, some process was necessary to enforce his appearance. It was therefore provided, by the various enactments of 1786 and 1792 — after any person shall be indicted of treason or felony or other crime, to which by law an infamous punishment is affixed, if he or she be not already in custody, the sheriff shall be commanded to attach his or her body bjr written precept, which is '“'called a capias; with provision, if the accused should not be found, for other process against the body and goods.

This, however, was not the only mode of instituting prosecutions for felony. They could be, and indeed were often, commenced by indictment in the District court under which a capais was issued, the accused arrested and tried on the indictment. In such case there was no statute requiring a warrant to be issued, or a preliminary examination before a justice. It was so held by the General court in Commonwealth v. Blakely, 1 Va. Cas. 129, upon a plea in abatement, that the defendant had not been examined by the justices of the county court, as required by the act of 1786.

This decision probably led to the act of 1804, which provided that before any person should be tried in a District court for a felony, he should be tried by an examining court. After this act the course of proceeding was materially changed. Whether the prosecution was commenced by warrant emanating from a justice, or by presentment or indictment, the accused was nevertheless entitled to the examining court. If an indictment or presentment was the foundation of the prosecution, it was the invariable rule to issue a warrant for the apprehension of the accused, under which, if arrested, he was taken before a justice of the peace. In such case, however, the justice had no authority to enquire into the offence; his duty was purely ministerial, to summon the examining court, which en-quired into the fact, and discharged the accused from further prosecution, or remanded him for trial before the Circuit court. Thus stood the law until the re-visal of 1847 and ’8, when important changes were made in the mode of procedure. Under that law, when complaint was made before a justice, of the commission of an offence, it was his duty to issue a warrant for the arrest of the offender. The arrest *being made, the justice examined the complaint, the witnesses for the prosecution and for the accused, who had the right to be assisted by counsel. If it appeared, upon the whole examination, that no offence had been committed, or there was not probable cause for charging the accused with the offence, he was discharged. If, on the other hand, it appeared that a felony had been committed, and there was probable cause to believe the accused guilty, he was committed or bailed for examination before the next County court.

The 16th section, chapter 20, of the same act, provided that “when a presentment shall be made by a grand jury of any felony for which the party charged shall not have been arrested, it shall be the duty of the court to issue a warrant commanding the proper officer to arrest the accused and take him before a justice, and to summon the necessary witnesses to appear before such justice; and the latter was directed thereupon to proceed with the case in the same manner as if the arrest had been made by virtue of a warrant originally issued by him.”

The 17th section provided, that upon any presentment being found or information filed, if the accused be not already in custody, the court shall order the clerk to issue the proper process against such party, to answer such presentment or information on the first day of the next term, or at such other time as may be prescribed by law or directed by the court.

The 18th section provided, that “if the prosecution be for a felony the process to answer shall be a capias. If the prosecution be for a misdemeanor, to which an infamous or corporal punishment is annexed, the process may be a capias or a summons. In all other cases the process shall, in the first instance, be a summons. These sections are substantially re-enactments of provisions contained in the Code of 1819, with the single ^exception of that relating to the examination before a justice of the peace upon presentment made. ’ ’

It is obvious the 16th section applied to presentment of felonies; the 17th section to misdemeanors; and the 18th was intended to be a general provision, applicable alike to misdemeanors and to felonies; and in cases of felony prescribing the process to be issued where the accused, having had his examination before the County court, did not make his appearance to answer the indictment subsequently found against him. The language is, “if the prosecution be for a felony, the process to answer shall be a capias.

It will be observed there is an apparent conflict between the 16th and 17th sections, which is alluded to in the report of the revisors of 1849. They suggested an amendment of the 17th section, so that it would read: “When a presentment is made or information filed in a case, other than a case of felony, the court shall award process. The legislature did not adopt the precise phraseology suggested by the revisors; but the amendment had substantially the same effect. The 17th section, as amended by the legislature, reads: ‘ ‘When a presentment is made or information filed in a case other than that provided for in the preceding section.” I repeat, the effect of this amendment was substantially the same as that indicted by the revisors.

That section (17th, 1847 and’8) could not, by any reasonable intendment, be construed to embrace felonies. In the preceding section it was plainly declared that upon a presentment of a felony for which the accused has not been already arrested, the court shall issue a warrant, under which the party charged, being arrested, shall be taken before a justice for examination.

The Legislature could not mean to say, in the very next section, that upon the presentment of a felony, a ‘‘'warrant shall not issue, and the accused shall not be taken before a justice; but that a capias shall be awarded by the clerk, the accused arrested and brought before the court to answer such presentment. In case of a presentment of a felony, suppose a capias issued; the accused is arrested and brought before the court; I beg to ask, what could be done with the prisoner: put him upon his trial? In the first place, no man could ever be tried in Virginia for a felony upon a presentment. An indictment was always indispensable. In the next place, as the law stood when these provisions were in force, the accused could not be tried by a jury upon a charge of felony until he had been examined before the County court.

It is clear, then, the court cold not try the accused under such circumstances, and nothing could have been done with him, except to send him to a justice of the peace, for the preliminary examination prescribed by the 16th section of that statute. For such an object the capias was wholly unnecessary and irregular. It is a process emanating from a court to bring the accused before it, to answer the accusation, to plead and be tried; and as such is utterly inapplicable to a presentment of a felony.

The error of so construing the 17th section as to embrace cases of felony, is the more apparent when it is considered that the Circuit courts met but twice a year; that a capias issued at one term would not be returnable or acted on until the next; that, in the meantime, the accused would be committed to prison and kept in close confinement ; and, after the lapse of six months, would be sent to a justice to have the examination he would have had if the judge had issued a warrant in the first instance.

It is said, however, the 17th section was intended to apply to cases of felony in which the accused had been arrested, had his examination before the County court, *had been admitted to bail, or committed to prison and made his escape, and was not then in custody. My answer is, in such case, an indictment would be found and not a presentment, and the process to answer would be a capias, under the 18th section.

Where the accused has had the examining court, the presentment would be worse than useless; it would be an absurdity; as no steps could be taken under it whatever. The accused, having had his examination, might be put on his trial, but not upon a presentment. The Commonwealth, after the useless and unnecessary delay of such a proceeding, would be compelled to abandon it, and resort at last to an indictment. By considering the 16th section as applicable to felonies, the 17th to misdemeanors, and the 18th a general provision, prescribing the mode of procedure where the prosecution had been so far proceeded in that process to bring the accused in to answer was. necessary, all the difficulties in the way of construing these sections are removed.

This construction is so obviously in accordance with previous enactments, and the spirit and reason of this entire system of legislation in regard to criminal proceedings, I must confess mv surprise it should be seriously contended the 16th section embraced any other than cases of felony.

Thus stood the law until the revisal of 1847-’48, with these three sections separate and distinct; when the Legislature, in the Code of 1849, unfortunately united and blended the 17th and 18th sections into one; and this mistake was repeated in the Revised Code of 1860, and in the acts of 1866 and 7.

These two sections, thus blended, constitute the 16th section in the Code of 1860, and also in the Acts of 1866-’67, chap. 207. All the difficulties arising- in construing these provisions in the last mentioned acts, may be removed by applying the ISth section to ^felonies, the 16th to misdemeanors, and by considering the provision therein contained, relating to process, as the subject of a separate and distinct section, as in the act of 1792, the Revised Code of 1819, and the acts of 1847 and 8.

Indeed, I understand it is conceded, that so much of section 16, as directs that a copy of the presentment or indictment, if found in the Circuit court, shall be certified to the County court, does refer, exclusively, to presentments or indictments of misdemeanors, and not of felonies. But it is insisted that the next clause in the same section applies both to felonies and misdemeanors. That clause reads: “Upon such presentment or indictment (that is, an indictment or presentment certified from the Circuit court), and upon any like presentment made or indictment found, or information filed in such County or Corporation court, process shall be awarded by the court, or be issued by the clerk thereof in vacation.”

Now, if the legislature intended, by the words, “such presentment or indictment,” to embrace misdemeanors alone, as is admitted ; and, by the words immediately succeeding, “upon any like presentment or indictment,” to embrace both felonies and misdemeanors, I submit, with all possible deference, they have used extraordinary language to effect the object in view. The effect of this construction is, that not only the judge in term, but the clerk in vacation, will be authorized, if not absolutely required, upon a mere presentment or information of a felony, to issue a capias for the apprehension of the accused.

It is said that presentment is a generic term, and is sufficiently comprehensive to include an indictment, and the clause in question must be construed as directing the process appropriate to each finding. Under our statutes these terms have never been indiscriminately employed; but have been always kept separate *and distinct, each having its appropriate meaning and function. If the particular clause in question refers to felonies, it is difficult to understand what process other than a capias the court or clerk could issue upon a presentment of felony. It cannot refer to a-warrant, as that is fully provided for in the preceding section.

It seems to me the true meaning of the section is this: When a presentment is made or indictment found of a misdemeanor in a Circuit court, it is to be certified to the County court, and that court is required to award the proper process. And upon any like presentment or indictment or information (that is, for a misdemeanor), filed in the County court, the same course is to be pursued. As by the ISth section the mode of procedure is prescribed upon presentments or indictments of felony; so, by the 16th section, the mode of procedure is directed in cases of misdemeanor.

It has been argued that the ISth section applies to cases in which the presentment or indictment of a felony is made or found in a court having no jurisdiction to try the offence. That it does apply to such cases is very clear; but it is sufficiently comprehensive to embrace every case of a presentment or indictment where the accused has not been already arrested. Such has been the construction given to it for forty years; and I think the Legislature, merely by the insertion of the word “indictment” in that section, could not have intended to change the whole course of criminal proceeding in this State.

If a presentment or information of a felony is made or filed in a County or Corporation court having complete jurisdiction, from what source, except the provisions of the ISth section, will the court derive its authority to issue a warrant, or the officer to arrest the accused and take him before the justice? It seems to me to be impossible, without the greatest confusion *and embarrassment, to confine that section to presentments and indictments made or found in a court which has no jurisdiction to try the case; but it must be construed to embrace every case of a prosecution for a felony where the accused has not been already arrested. Iffy construction, then, of these sections is, that in all cases of an indictment or presentment of a felony, for which the party charged has not been arrested, it is the duty of the court to issue a warrant directed to the proper officer, commanding him to arrest the accused and take him before a justice, to be examined, as prescribed by the statute. If the accused has been already arrested under such warrant, or that of a justice, has had his examination before a justice, and been thereupon bailed, or committed and escaped from prison, or from any other cause does not appear, the proper process against him is a capias.

It is said these views are in conflict with the 2d section, chap. 208, act of 1866-’67. That section provides that when an indictment or other accusation is filed against a person for a felony in a court wherein he may be tried, the accused, if in custody, or if he appear according to his recognizance, shall be arraigned and tried at the same term. The answer is simple and obvious. The accused, if in custody or on bail at the time of finding the indictment, must have been arrested under the warrant of a justice, upon complaint to him, or the warrant of a judge upon a presentment or indictment under the ISth section; and thereupon had his preliminary examination and trial before a justice. If we suppose the plain provisions of the law complied with, there is no other mode by which a. party charged with a felony can be arrested and held in custody or released on bail.

This is no new enactment. The very same provision, substantially, is found in the Code of 1819; and in the Code of 1860, the phraseology is precisely the same *with that under consideration. If the construction now sought to be given to that section be the proper one, its effect under previous laws would necessarily have been to deprive the accused of the benefit of the examining court when the prosecution was commenced bjT indictment. But the General court, in Hurd v. Commonwealth, 5 Heigh 715, decided that although the prosecution be commenced by indictment, -the accused was still entitled to the examining court; and there must be a new indictment after such examination, before the accused could be put upon his trial for the offence.

It has been argued, that if the Legislature intended that the accused, in all cases of felony, should have the examination before a justice, it would have so provided, as was the case in regal'd to the examining courts. Under our. present statutes no such provision is necessary to secure to the accused the benefit of such examination, in as much as there are but two modes of instituting prosecutions for felonies in Virginia: in the one by warrant emanating from a justice, and in the other by indictment, presentment or information, and a warrant thereupon issued by a judge. Therefore, as in either case, the accused is entitled to the preliminary examination, the Legislature has as clearly expressed its pleasure that the accused shall have this examination as though it had so declared-in express terms.

These views are not in conflict with Clore’s case, 8 Gratt. 606, or Wormeley’s case, 10 Gratt. 658. When these cases were decided there was no law in force in this State requiring a judge or presiding justice, after indictment, to issue a warrant for the apprehension of the accused, under which, if arrested, he was to be taken before a justice for examination. That provision was first incorporated into our statutes by the acts of 1866 and 1867.

The" examination before the County court, to which *the accused was entitled before that time, gave the accused all the information, every advantage, he could in any . manner derive from the examination before a single justice. And I understand the court, in the two cases cited, merely as saying, that after such examination before the County court, the accused could not, in any way, be-prejudiced by irregularities occurring in the course of bis examination before a justice of the peace or coroner. The case of Shelly v. Commonwealth, 19 Gratt. 653, has been cited and relied on. Whether that decision be sound law or not, whether made by a -tribunal whose opinions are binding au-fhority or not, it is unnecessary now to consider; it is sufficient to saj^ that decision -was based expressly upon the ground that at the time the indictment was found the accused had been already arrested, and was then in the custody of the court; and therefore the 15th section of the act did not apply to his case. In Kemp’s case, 18 Gratt. 969, the court merety held that an indictment for a felony will not be quashed because the clerk of the examining court failed to insert the warrant of commitment in the record; and after indictment found, the only question open upon the previous proceedings is, whether the accused has been examined for the offence before the County court. In this case there is no objection for irregularities occurring before indictment. The question for our consideration is, what are the rights of the accused after indictment found.

The statute declares, that the judge shall issue his warrant for the apprehension of the accused, and the latter shall thereupon be taken before some justice. Has not the accused a right to insist upon a strict compliance with every provision of the statute applying to his case? Upon what principle is it the court may disregard the plain letter of a law obviously intended for the benefit of the party charged with a criminal offence? *If we may thus judicially repeal one important section, there is no limitation of the power of the courts. The most important and sacred rights of the accused may be destroyed by this species of judicial legislation. Even in civil cases an error in the process is fatal if the objection is made at the proper stage of the proceedings. If the defendant is sued in debt when the process should be assumpsit, the action will fail.

If the property of the citizen is taken for the dues of the government, every step in the proceedings of the officer must be in strict compliance with the mandates of the law. And yet in a case involving life or liberty, the court is permitted to disregard one plain section of a. statute because another section is involved in doubt and obscurity.

Whatever the 16th section may mean, by its very terms it does not and cannot apply to cases provided for in the 15th section. That is clear. And if the accused is within the terms of the 15th section, if he has been indicted of a felony and has not been arrested, he has no concern with the 16th, and the 16th has no concern with him.

It is said, however, that these provisions relied upon are merely directory, and a failure to comply with them will not vitiate the proceedings. It is a novel doctrine, to me, at least, that statutes affecting the liberty of the citizen, and intended for his benefit, may be disregarded by the courts upon the notion they are merely directory. It is said by an eminent writer, that this mode of getting rid of a statutory provision is not only unsatisfactory, but it is the exercise of a dispensing power by the courts, which approaches so near legislative discretion that it ought to be resorted to with reluctance, and only in extraordinary cases, where great public mischief will ensue, or important private interests demand the application of the rule. A whole ^statute may be thus disposed of when in the way of the caprice or will of the judge. And in Mayhew v. Davis, 4 McLean R. 213, the doctrine is thus expressed : It may be safely affirmed that a statute can never be deemed directory where the act or the omission of the act can, by any possibility, work advantage or injury, however slight, to any one affected by it.

If this statute be merely directory, to be disregarded at the pleasure of the court, or if the construction now sought to be given to it be erroneous, we have this partial and incongruous system of criminal proceedings in Virginia. Should it be the good fortune of the. party charged with a crime to be arrested under the warrant of a justice, he is entitled to an immediate examination; he is assisted by counsel; his witnesses are heard; he is confronted with his accusers ; he is informed of the nature and details of the accusation ; and he is often able to make a successful defence against a false and frivolous charge, or a malignant and dangerous one. If, on the other hand, he is sent on for trial, he may be successful in obtaining bail; he is fully informed of the nature of the offence with which he is charged, and the character, position and temper of the witnesses by whom he is impeached ; and, when placed on his trial, no accusation is to be met, concocted in the recesses of the grand jury room, of the nature of which he can know nothing beyond the technical averments of an indictment, or the voice of rumor, reaching him through the bars of his prison., The same results would follow, the same advantages accrue, to the accused, should the prosecution be commenced by presentment or information.

But, should the prosecuting attorney, as a matter of fancy, whim or prejudice, conclude to send to the grand jury an indictment, the whole course of proceeding is changed. The accused is arrested under a capias; he is deprived of the preliminary examination; *he can make no application for bail; he is committed to jail; and finally put on his trial, without accurate knowledge of the nature of the accusation, the character of the prosecutor and witnesses, whose breath is to sweep away his liberty, if not his life. And this is the system of criminal procedure it is supposed the Legislature intended to establish in Virginia, and this the power it has placed in the hands of the prosecuting attorneys throughout the State. There has not been a day in sixty-six years, in Virginia, that a citizen has not been entitled to this examination, in some form, either before a single justice or an examining court.

The accused may waive the examination; but, unless he does so, the law says he shall have it; and the courts cannot refuse it. So long as the examining court was in existence, this preliminary examination before a justice was of little importance or value to the accused; but, now that one is taken away, there is greater reason for preserving the other. The very constitution of a grand jury often leads to frivolous, vexatious and malignant prosecutions; by which the peaceful and unoffending citizen is dragged from his home to a distant court, confined in prison, and only released after the loss of health and reputation, and the utter ruin of his pecuniary affairs. Fortunately, this has not often happened in the State of Virginia, as it could not well occur under a system of criminal jurisprudence so beneficent and humane as that which has heretofore guided the action of our courts. But, in other courts and other States, grand juries have been made the instruments of private vengeance and political persecution, and a wise and prudent foresight will provide against the contingency of such occurrence here in the future. Judge King, of Pennsylvania, in the year 1845, in an able and luminous discussion of this very topic, uses the following language: “A warrant of arrest, founded on probable cause, ^supported by oath or affirmation, is first issued against the accused by some magistrate having competent jurisdiction. On his arrest, he hears the nature and cause of the' accusation against him; listens to the testimony of the witnesses face to face; has a right to cross-examine them, and may resort to the aid of counsel to assist him. It is not until the primary magistrate is satisfied, by proof, that there is probable cause that the accused has committed some offence known to the law, that he is further called to respond to the accusation. He is then either bailed or committed to answer before the appropriate tribunal to whom the initiatory proceedings are returned for further action. By the opportunity thus given to the accused of hearing and examining the prosecutor and his witnesses, he ascertains the time, place and circumstances of the crime charged against him, and thus is enabled, <if he is an innocent man, to prepare his defence; a thing of the hardest practicability if a preliminary hearing is not afforded him. It is not true that a bill of indictment, found without a preliminary hearing, furnishes him with the proper information. It practically neither describes the time, place nor circumstances of the offence charged. Hence the inestimable value of a preliminary public investigation, by which the accused can be truly informed, before he comes to trial, what is the offence he is called upon to respond to. It is by this system that criminal proceedings are ordinarily originated. Were it otherwise,, and a system introduced in its place by which the first intimation to an accused of the pendency of proceedings against him, involving life or liberty, should be given, when arraigned for trial under an indictment, the keen sense of equal justice, and the innate detestation of official oppression which characterize the American people, would make it of brief existence.”

It may be, the Legislature, having abolished the examining *court as a useless incumbrance, but influenced by considerations of the character mentioned, adopted the provision allowing- the accused the benefit of a preliminary examination in all cases of felony. Whatever may have been the motive, or whatever may be the consequences, the courts must declare the law as it is written. If I am wrong, the legislature, now in session, can correct the error. At any rate, it is an error in favor of life and liberty; an error which tends to throw around the accused those safeguards prized by all people jealous of power and tenacious of human rights; which may be of little importance to the strong and powerful, but to the weak and defenceless is of inestimable value.

The history of the last few years, and the circumstances by which we are surrounded, admonish all of us, that it is only by a strict adherence to all the forms and requirements of law that the peace and tranquility of society are preserved, and the liberty of the citizen made secure.

ANDERSON, J.

There seems tobe some 'obscurity, and defect in the law, since the repeal of the act- requiring an examining court. I can see nothing in the action of the Legislature, however, which indicates a purpose to substitute an examination before a justice of the peace for that of the examining court. Whilst the law requiring an examination before the County court has been totally repealed, that providing for a preliminary examination before a single justice, or committing magistrate, is left precisely as it was. And what are the rights of the accused, under that provision which remains unchanged, has been judicially settled by repeated decisions of the General court and of this court.

In Blakely’s case, 1 Va. Cas. 129, the prisoner was indicted in the District court of Staunton for a felony. *The court awarded a capias against him, which was executed; and he was brought into court the next day and pleaded not guilty. The trial was postponed to the seventh day of the court. On the day to which the cause was continued the defendant appeared, and was allowed to withdraw his former plea, and to put in a plea that, by the laws and usages of the Commonwealth, he was entitled to an enquiry before a court of examination, before he can be indicted and arraigned before the District court. The question was adjourned to the General court, consisting of Tucker, Tyler, Nelson, White and Carrington, who unanimously held that the new plea pleaded by the accused should “be overruled by the District court, and that the said court ought to proceed in the trial of the defendant upon the presentment and indictment.” This decision was made before the law providing for examining courts was amended by the act of January 24th, 1804, which gave the’ accused the right to be examined, in the manner prescribed by law, by the court of the county or corporation, before he could be tried upon a charge of felony or treason before the District court. And this provision was retained in the criminal code of the State until the examining court was abolished by the act of April 27th, 1867, repealing chap. 205 of the Code. When Blakely’s case was decided, the law providing for an examining court was in force substantially as it has been since, until the repeal in 1867, except that there was no provision expressly entitling the accused to an examining court, before he could be arraigned and tried upon an indictment in the District court.

If it was not error to arraign and try the accused, upon an indictment before the District court, prior to the act of 1804, before he was tried by an examining court, a for-tiori, it would not be error to try him now upon an indictment, before he had an examination by a single justice, there being no such provision in the *law of arrest and commitment (and never has been) as that which was first engrafted in the act in relation to examining courts in 1804. If, before that act, it was competent for the District court to arraign and try upon an indictment, it would now be competent for the Circuit court to arraign and try upon an indictment before a preliminary examination by a single justice.

But, as I have said, we are not without judicial construction of the law of arrest and commitment, as it affects this question. In Clore’s case, 8 Gratt. 606, the prisoner offered two pleas in abatement. In the first plea he alleged that he was committed by a justice of the peace, without any inquiry or examination into the truth of the charge for which he was committed. In the second he alleged that the offence wherewith he stood charged was never examined into by a justice of the peace in his presence. The court rejected both pleas, and its judgment was affirmed by the General court. Judge Lomax, in delivering the opinion of the court, says: “Whatever inconveniences he may complain of, as to the examination or want of examination, before the justice, they can have no relevancy as objections to the indictment, which has given the sanction of the grand inquest of the county to the charge for which the justice committed him. In Wormeley’s case, 10 Gratt. 658, 670, Judge Daniel, in delivering the opinion of the court, cites this case with approval, and says: “It was decided in Clore’s case that the principles of the decisions just above mentioned, is not at all valued because of the subsequent amendments of the law in the Code, relating to arrest and commitment; that after the finding of the grand jury, upon the examination and proofs before them, charging the accused with the murder, it was no defence in reason or in law to the prisoner, that there had been irregularities in his commitment.” In Kemp’s case, 18 Gratt. 969, J. Joynes reviews the cases on this subject, and concludes *in these words: “If the prisoners could not, on a motion to quash, be allowed to show that the original commitment was by an illegal warrant, or without investigation, or by a person without authority, they cannot be allowed to show that the commitment was not duly certified to the clerk, however essential that may be to the regularity or legality of the commitment. The essential thing into which alone, of all the proceedings before indictment, the court inquires, is, whether the prisoners were duly examined and committed by the examining court for the same offence for which they were indicted.” And this, as we have seen, the court could only inquire into by virtue of the provision made in the act of 1804, and retained in the law of examining courts until the whole was struck down by the act of 1867. Since this repealing law went into operation it would be no defence to an indictment, that the accused had not been examined by an examining court. And we have seen that it never has been a ground of defence, that he had not been examined by the committing justice.

Does the repeal of the law providing an examining court change the law with regard to arrest and commitment? The legislature has not thought proper to change it. Can the courts, by judicial construction, give it a meaning and force which, before the repeal of the examining court, they held did not pertain to it. The only change that has been made, and that as the result of the abolition of the examining court, is, that the commitment is now for trial; whereas before it was for examination. Rives, J., in Jeter Philips’s case, 19 Graft. 485, 522.

Under this judicial interpretation and construction of the law of arrest and commitment, which must be presumed to have been known to the Legislature, they abolished the examining court, and left the other precisely as it was. Did they intend to substitute the examination ^before a justice for the examining court? Did they intend to clothe a single justice with powers, after the accused had been solemnly indicted in one of the superior courts of law, by the grand inquest of the county, for a grave criminal offence, to arrest the criminal proceeding and discharge the accused? Such could hardly have been the intention of the Legislature. And with the judicial interpretation of the clause as it stands, it could not have that effect. And if they had intended it they would, it seems to me, have changed the phraseology and enlarged the provision, so as to obviate the judicial construction and give it the proposed effect. I think, on the contrary, in the revision, in retaining the provision unchanged, they intended to retain it with the judicial construction given to it, and did not intend the absurdity of clothing the single justice with the power claimed for him. And, moreover, if they had intended that the preliminary examination before the committing magistrate should take the place of the examining court, they would have said so, and would have declared what should be the effect of his discharge: whether it should be final as in the case of the examining court. And if they had intended that it should take the place of the examining court, in amending the 34th section of chapter 208 of the Code, which provides that the prisoner shall be forever discharged, if there be three regular terms without trial “after his examination,” they would have merely inserted the words “by a justice of the peace:” So as to read, “if there be three regular terms of such court after his examination by a justice of the peace, without a trial, &c. Instead of that they struck out the words 1 ‘ his examination,” and substituted the words “he is so held.” So that itreads, “if there be three regular terms of such court after he is so held without a trial,” evidently contemplating *that he would be committed as before, but directly for trial, instead of examination.

I deem it unnecessary to go into an analysis of these statutes. That has been so well done, so much better than I could, in the lucid opinion just delivered by my brother Moncure, that it would be a work of supererogation in me to travel over the same ground. The argument which has been made as to the importance to the prisoner, that he should have a preliminary examination, would be better addressed to the Legislature than to this forum. It might be addressed with effect, perhaps, to that body, in a proposition to restore the examining court, or to provide some suitable substitute for it, which I am prepared to recommend. But, if it be meant to invest a single justice of the peace with power to arrest the proceedings of the Circuit court against a person accused of crime, after an indictment found against him by the grand inquest of the county, and to discharge him, I certainly could not unite in an application to the Legislature for such a purpose.

It is, indeed, important that the laws should be so framed and administered that the sacred rights of person — life, liberty, and property — should be secure. To this end, it is important that every safeguard to liberty should be sacredly preserved. And one of these safeguards is, that the guilty should not go unpunished. Whilst it is a part of our humanity to commiserate the fallen, no false sympathy should prevent the faithful enforcement of the law against the guilty. This is indispensable, if we would give security to the rights of person, and preserve the safety and purity of society.

It is not the province of this court to decide upon the guilt or innocence of the accused. And nothing that has fallen frcm me is intended to give any intimation of an opinion on that subject. It is my wish that he should have every right and privilege upon his trial to which he is en» titled by the law of the land. *(And I am gratified to know that the defect of the law, in taking away the right to an examining court, without providing a substitute, will in his case be compensated tinder the decision of this court: as, upon ■a second trial, he will have the benefit of the previous examination which he has had in the first.)

’ I had not intended saying a word upon this question beyond the announcement of my opinion, as the very full, able and lucid opinion of the President, I think, fully sustains that opinion. But, after hearing the very elaborate opinion of my brother Staples last night for the first time, which gives such prominence to this question, I felt that something more might be required of me than the simple announcement of my opinion. I concur in the opinion of the President. ,

CHRISTIAN, J., concurred in the opinion of Staples, J.

MONCIIRB, P.

This day came as well the plaintiff in error, by his counsel, as the Attorney-General, on behalf of the Commonwealth, and the court, having maturely considered the transcript of the record of the judgment aforesaid, and the arguments of counsel, is of opinion that, the court being equally divided in opinion upon the question presented by the first bill of exceptions, whether the accused was entitled to be examined before a justice of the peace for the offence with which he was charged in the indictment, which he had been recognized to answer, before he could be required to answer the same; the ruling of the said Hustings court- in refusing to grant his motion to be taken before a justice of the peace, in order to his examination for the said offence, as mentioned in the said bill of exceptions, is therefore affirmed. The court is of opinion that the said Hustings court did not err in overruling the motion of the accused to quash the indictment, because the grand jury that found the same *were required to be freeholders, because the officer who -summoned them summoned none but freeholders, and the clerk, before they were sworn, demanded to know of each of them whether they were freeholders, as mentioned in the second bill of exceptions: nor in excluding the plea in abatement tendered by the accused “that the supposed grand ■jury by which the indictment was alleged to be found, was not summoned or empaneled according to law, in this, that the entire panel were summoned by the proper officer of the said court,-under the second and third sections of chapter 206 of the Acts of Assembly of 1866-’7, relating to grand juries, and were required to be free- . holders, and not disqualified under the terms of the said third section; and were not summoned according to the provisions of the third article of the constitution of Virginia;” as mentioned in the third bill of «exceptions. It did not appear, and was not alleged, that any of the grand jury were disqualified. All of them may have been good and lawful men, qualified to serve as grand jurors not only under the said act of assembly, but under the constitution. That they were freeholders did not disqualify them under either. They may also have been, if that were necessary, and it is to be presumed they were, entitled to vote and hold office, according to the requirements of the constitution. The accused, therefore, would have no good cause to complain that hé was indicted by a disqualified grand jury, even if the third section of the third article of the constitution, which declares that “all persons entitled to vote and hold office, and none others,. shall be eligible to sit as jurors,” operated proprio vigore, and without any legislation on the subject, to repeal all existing laws apparently in conflict therewith. But the court is of opinion that it had no such effect; that legislation is proper and necessary to put it in operation ; and that until such legislation takes place, the existing laws in regard *to grand juries will continue in force. But when such legislation shall take place, the existing law in regard to grand juries, so far as it may be repealed or altered by the new law, will cease to exist.

The court is further of opinion that the Hustings court erred in overruling the motion of the accused to quash the venire facias “because the same is not in conformity to law, and for errors apparent upon the face thereof,” as mentioned in the fourth bill of exceptions. The second section of the schedule annexed to the constitution provides that all indictments which shall have been found, or which may hereafter be found, for any crime or offence committed before the adoption of this constitution, may be proceeded upon as if no change had taken place.” The “crime or offence,” in this case, if committed at all, was committed before the adoption of the said constitution-. The fourth section of the said schedule provides “that all crimes and misdemeanors and penal actions shall be tried, punished and prosecuted as though no change had taken place, until otherwise provided by law.1 ’ The court is of opinion that, according to this provision, the act passed April 27th, 1867, entitled “An act to revise and amend the criminal procedure,” which was in force at the time of the adoption of the constitution, was continued in force until otherwise provided by law; and as it has not yet been otherwise provided by. law, the said act has ever since continued, and yet continues, in force. The venire facias in this case, therefore, instead of being issued in the form set forth in the said fourth bill of exceptions, ought to have been issued in pursuance of the directions of chapter 208 of the Code, as amended by the said act. See Acts of Assembly 1866-’67, pp. 932, 933; and for this error the said judgment must be reversed.

The court might here conclude this opinion without taking any notice of any other questions presented by *the record. But as these questions have been fully argued before this court, and as all or most of them may again arise in the future trial of this case in the court below, this court has considered them, and will now proceed to express an opinion upon such of them as are likely again so to arise.

The court deems it unnecessary to express any opinion upon the questions presented by the Sth and 6th bills of exceptions in regard to the witness, Oscar Cranz, as it is not likely that any such questions will arise in any future trial of this case. But the court is of opinion that the Hustings court did not err in overruling the objection made by the accused to the question proposed by the Commonwealth to be put to the witness, John H. Gibbon, as mentioned in the ninth bill of exceptions; nor in overruling the motion of the accused to exclude from the jury, and to instruct them to disregard, as evidence, the answer of the said witness to the said question, as mentioned in the 10th bill of exceptions.

The court is further of opinion, that the said Hustings court did not err in overruling the objection of the accused, to the question propounded to the witness Émanuel Francis, and permitting the witness to answer the same, as mentioned in the seventh bill of exceptions; nor in overruling the motion of the accused to reject and to direct the jury to disregard the questions propounded to, and the answers of the said witness, as mentioned in the eighth bill of exceptions.

As to the eleventh bill of exceptions taken to the refusal of the Hustings court to permit the witness, William Folkes, clerk of the County court of Henrico, when the action brought on the writing mentioned in the indictment was pending in said court, to answer the question propounded by the accused to the said witness, whether any reason had been given to him by J. H. Sands, as counsel for the defendant in said action, *for not filing a plea in the case; and as to the twelfth bill of exceptions taken to the refusal of the said court to permit the question of the accused, Whether Sanxay, the defendant in the said action, was present with his counsel in the clerk’s office, and what was said by Sanxay as to why he would not defend the suit, but let the judgment go by default, to be put to the said witness. The court is of opinion that the admissibility of the declarations sought to be elicited by the question propounded to the said witness as aforesaid, depends upon whether they were made in connection and concomitance with the fact to which the said witness had just before testified, that no plea was pleaded by the counsel for defendant, and that judgment went by default. The said bills of exceptions do not sufficiently show such connection and concomitance to enable the court to determine the question of admissibility. They do not show whether the said declarations were made at a time when a plea could be pleaded in the said action, and in reference to the question whether such plea should be put in or not; or were made at some other time and unconnected with that question. In the former case, they were admissible evidence as part of the res gestas, and as being explanatory of the fact of not putting in such plea; in the latter they were inadmssibile, because unaccompanied by any fact which was in evidence in the case, and which they could tend to explain.

In regard to the opinion of the Hustings court in refusing to give the instructions asked for by the accused, and in giving others in their stead: which is the subject of the thirteenth bill of exceptions: all the testimony, oral and written, before the jury on .the trial of the cause, and, when instructions were asked for, and refused or given as aforesaid, is set forth in the said bill of exceptions; and it tended to prove that Solomon Haunstein, a foreigner, died in the city of *Richmond, in the year 1861, intestate, and without heirs, having lived in the citjT several years before his death, and accumulated quite a large estate, consisting partly of personal property, but chiefly of houses and lots, in or near the city; that Richard D. Sanxay was curator of the said Haunstein’s estate; that a writing, purporting to be the writing obligatory of the said Haunstein, for the sum of seven thousand dollars, payable on demand to John W. Thompson or order, and an endorsement thereon purporting to be the endorsement of said John W. Thompson, being the writing and endorsement in the indictment mentioned, were forged; that an attempt was made by the accused, professing to act as counsel or attorney at law for William Gleason, assignee of said John W. Thompson, to collect the sum of money mentioned in said writing, and to enforce its payment out of the estate of the said Haunstein; that, in the prosecution of that attempt, he first demanded payment of the said sum of the said curator; secondly, brought an action at law upon the said writing, and obtained judgment in said action; thirdly, brought a suit in chancery to enforce the said judgment against the real estate of said Haunstein, and obtained a decree for the sale thereof; and, fourthly, executed a receipt as “attorney for Wm. Gleason, assignee of John W. Thompson,” to R. D. Sanxay, special commissioner, for the sum of forty-nine hundred and ninety-six 94-100 dollars, in part satisfaction and discharge of the said judgment; the said sum being composed of $4,079 38, net proceeds of the sale of the real estate, and $917 56, balance due by the said curator on account of the personal estate of said Haunstein; and that, in making the said attempt, the accused knew the said writing and endorsement to be forged 'and intended to defraud.

The court deems it hardly necessary to disclaim any intention, in making the foregoing statement, to intimate *any opinion upon the weight of the testimony, which belongs exclusively to the consideration and determination of the jury. The statement of what the testimony tends to prove, is made merely to show the application of the instructions, and to explain the opinion of the court thereupon. The court is of opinion, that everything said or done by the accused in the prosecution of the said attempt, with the knowledge and intent aforesaid, for the purpose of obtaining the money mentioned in said writing, was “an attempt to employ as true such forged writing, knowing it to be forged,” within the meaning of the Code, ch. 193, § 5, p. 797.

As to the first instruction asked for by the accused, the court of Hustings did not err in giving, in lieu thereof, the first of the instructions given by the court.

As to the second instruction asked for, the said court did not err in giving the same, with an addition thereto. But the court is of opinion, that, to make the proper meaning more plain, the following words, or other words to the same effect, ought to have been inserted at the end of said addition, viz: “If such assertion or declaration was made in the prosecution of the purpose Of obtaining the money mentioned in the said writing,” so as to make the addition read thus: “But any assertion or declaration, by, word or act, that the forged writing or endorsement is good, with such knowledge or intent, is an uttering or attempting to employ as true the said writing or endorsement, if such assertion or declaration was made in the prosecution of the purpose of obtaining the money mentioned in the said writing. ’

As to the third instruction asked for, which is in these words, “that, to conyict the accused, upon the said last mentioned counts,” to wit, the second and fourth, “the jury must be satisfied that, at the time the said forged writing and said’endorsement were filed by *the accused in .the clerk’s office of the County court of Henrico, he knew that the same were forged,” the court is of opinion, that the said court of Hustings did not, err in refusing to give it. The said instruction assumed that the attempt to employ the said forged writing and endorsement as true, could consist only, according to the evidence, in filing the same in the said clerk’s office; whereas the evidence tended to prove other acts of the accused which constituted such an attempt.

As to the fourth instruction asked for by the accused, and the third instruction given by the said court in lieu thereof, the court is of opinion that the Hustings court did not err in refusing to give the former. The position assumed by the said instruction asked for was, that the bringing of a suit upon a forged paper, as counsel, does not amount to an uttering or attempting to employ the same as true, within the meaning of the law on which the prosecution is founded, even though the accused, at the time of bringing such suit, knew that the paper was a forgery. The court is of opinion, that this is not a sound position; and that the bringing of a suit upon a forged paper, as counsel, for the purpose of recovering the money purporting to be due by such .paper, does amount in law to an uttering or attempting to employ the same as true; and if the act be done with knowledge of the forgery and intent to. defraud, it constitutes an offence within the meaning of the Code, p. 797, ch. 193, sec. 5. It would have been sufficient for the court merely to have refused to give the fourth instruction asked for, without giving any other in its place. But, if it was deemed proper to give another, it oug'ht to have been to the above effect, instead of the third instruction given by the court.

As to the fifth instruction asked for by the accused, and the fourth instruction given by the said court in *lieu thereof, the court is of opinion that there was no error in that respect. The said instruction asked for was vague in its meaning, embraced an abstract proposition, and was calculated to mislead the jury. Any fact which is a necessary ingredient of an offence, as guilty knowledge is, of the offence charged in the second and fourth counts of the indictment, must be proved on a trial for such offence, by the evidence in the cause, or by fair inference therefrom. To say that such guilty knowledge must be proved as a “substantive fact,” seems to' imply that stronger or other evidence is required of this fact than of other material facts of a case. “That the law does not presume guilty knowledge from any state of the proof against the accused,” was a general and abstract proposition, upon which the said court could not properly be called .on to express an opinion. The Commonwealth had not asked for an instruction that the law„ presumed guilty knowledge from any particular facts which the evidence tended to prove, if the jury believed thém to be true. Had such been the case, the accused might well have asked for an instruction to the contrary. But such was not the case. And the Hustings court property instructed the jury, “that, to convict the accused under the second and fourth counts of the indictment, the guilty knowledge therein imputed to him must be proved by the evidence in the cause, or by fair inference therefrom.”

As to the sixth instruction asked for by the accused, and the fifth instruction given by the said court in lieu thereof; the instruction asked for was, “that to convict the accused the jury must be governed entirely by the testimony before them and the fair inferences therefrom; and that they must not presume or assume the guilt of the accused by reason of his failure or neglect to produce evidence in his own behalf. ” The instruction given was precisely the same with the instruction *asked for, with this addition, “but that is a fact which, if it appears, may be considered by the jury in connection with the other facts proved in the case.” The proposition embodied in the instruction asked for was certainly true, but laid down without explanation, it was calculated to mislead the jury, and induce them to believe that, no matter how strongly the evidence of the Commonwealth might tend to prove the guilt of the accused, and no matter how plainly it might appear that the accused had it in his power to produce evidence in elucidation of the subject matter of the charge against him, yet his failure or neglect to do so was not a circumstance which could be weighed by the jury in connection with the other facts proved in the case. This is certainly not true. The conduct of a party in omitting to produce that evidence in elucidation of the subject matter in dispute, which is within his power, and which rests peculiarly within his knowledge, frequently affords occasion for strong presumption against him; since it raises a strong suspicion that such evidence, if adduced, would operate to his prejudice. 1 Starkie on Evidence, p. 34, part 1, sec. 16; 2 Russell on Crimes, p. 729, library edition. The Hustings court was, therefore, right in making an explanatory addition to the instruction asked for; but, instead of the words used by the said court for that purpose, the addition ought to have been in the words or to the effect following, to wit: “But, if the jury believe that it is in the power of the accused to produce evidence in elucidation of the subject matter of the charge against him, then his failure or neglect to produce such evidence may be considered by the jury in connection with the other facts proved in the case.”

As to the seventh instruction asked for by the accused, and the sixth instruction given by the said court in lieu thereof, the court is of opinion that there is no error in that respect.

*The court is further of opinion that the said court of Hustings did not err in overruling the motion of the accused to set aside the verdict on the following grounds alleged by him, viz:

1st. “That there was no evidence of an intention on the part of the accused to’ defraud the United States, or any State, or any county, corporation, officer or person.”
2dly. “That there was no evidence to show that the writing in the indictment mentioned was uttered, or attempted to be employed as true to any person, but was filed with a declaration in a suit at law, in the clerk’s office of Henrico county court.” And
3dly. “That the alleged uttering and attempting to employ as true occurred in the county court of Henrico, and within the jurisdiction of that court; and not within the jurisdiction of the Hustings court of the city of Richmond.”

In regard to the first of these grounds: there was evidence tending' to show an intention on the part of the accused to defraud the personal representative of Solomon Haunstein, who was the legal owner of the personal estate of said Haunstein, and also to defraud the heirs at law of the said Haunstein, if he had any, or the State of Virginia, if he had none.

In regard to the second ground: there was evidence tending to show that the writing in the indictment mentioned was uttered or attempted to be employed as true to a person, to wit: to R. D. Sanxay, curator of the estate of said Haunstein. But whether there was such evidence or not, there certainly was evidence tending to show the attempt, by action at law and suit in equity to enforce payment of the money mentioned in the said writing, out of the estate of said Haunstein; which said attempt was an attempt to employ said writing as true, within the meaning of the law.

In regard to the third ground: the alleged uttering *and attempting to employ as true occurred within the jurisdiction of the Hustings court of thecity of Richmond. The demand of the money of the personal representative of Haunstein was made in the city. The Circuit court of Henrico, in which the suit in equity was brought, was held in the city. And though the action at law was brought in the County' court of Henrico, yet the court-house and clerk’s office of said county are situated within the territorial limits of said city. And the court’ of Hustings has jurisdiction, not only within the said limits, but also for the space of one mile on the north side of James river, without and around said city. Acts of Assembly 18S2, chap. 365, § 3, p. 259; Code of 1860, chap. 157, § 4, p. 661; Id. ch. 158, ? 53, p. 676.

Wherefore, for the error of the said court of Hustings, in overruling the motion of the accused to quash the venire facias as aforesaid, it seemeth to the court here that the judgment aforesaid is erroneous. Therefore it is considered that the same be reversed and annulled; and it is ordered that the verdict rendered by the' jury be set aside, and that the cause be remanded to the said court of Hustings, with directions to proceed, in the manner ’ prescribed by law, to cause another jury, duly qualified, to come and to say whether the said George Chahoon be guilty of the felony wherewith he stands accused, and in the said indictment mentioned, or not guilty, and further to proceed as the law requires. Which is ordered to be certified to the said court of Hustings of the city of Richmond.

Judgment reversed.  