
    *Robert Mendum v. The Commonwealth.
    
    November, 1828.
    Criminal Law — Third Term after Commitment — Statute — Construction-—Case at Bar. — A prisoner is committed for examination, two days before the regular Court of the County in December, but the Examining: Court is called to meet seven days thereafter*, it fails to meet, and the Examining Court stands adjourned till the regular Court in January: by that Court the case is continued till the February Term, and by that Court till March, without the application of the prisoner, when the examination takes place, and the prisoner is remanded for trial: — Within the meaingofthe proviso to §6, ch. 169, 1 Rev. Co. the January Court was the first, and the March Court the third, after his commitment.
    Same — Co†ntinuance—Absent Witness — Affidavit May Be Required. — Under particular circumstances, a Court may require that the affidavit of an absent witness, setting forth his testimony, shall be produced as the ground-work of a continuance: and the refusal to grant a continuance, (even though the prisoner swears to the materiality of the witness, and specifies what he expects to prove by that witness, and due diligence has been used, and the witness is too sick tq attend) will be justified by that Appellate Court under those circumstances.
    Evidence — Expert.—When the opinion of an expert is offered in evidence, and it is objected to, because he is not an expert, the Court may hear evidence to ascertain whether he is so, or not, andón being satisfied that he is an expert, may allow his opinion to be given in evidence.
    Same — Minute and Remote Circumstances, — For a case in which it is proper to allow minute and remote circumstances to be given in evidence, see the second Bill of Exceptions during the trial.
    Criminal Law-Evidence — Confession.—if the Prosecutor for the Commonwealth, on the examination of the prisoner in the Examining Court, give in evidence the confession of the prisoner, but on the trial before the Superior Court, he does not give that confession in evidence, it is not competent for the prisoner to prove what the Commonwealth had proved in the other court, touching the said confession.
    Same — Same—Testimony of Witness in Examining Court. — if the Commonwealth introduce a witness on the trial, who gives his evidence, it is not com-petentfor the prisoner to prove what another witness of the Commonwealth swore to in the Examining Court, that other witness not being a witness in this case, nor summoned, though living in the adjoining County.
    Superior Court — Duration of Term. — A Judgment is rendered in the Superior Court of Chesterfield, on the 15th November, the day on which the General Court is directed by Daw to be held at the Capitol: the distance is judicially known to be not more than three hours moderate ride from one place to the other. It does not appear on the Record but that the Judgment might have been rendered in time to enable the Judge to close that Court, and attend at the Capitol to his duties asoné of the General Court, ou the same day.— The Superior Court of Chesterfield had jurisdiction to render the Judgment on that day.
    The prisoner was indicted in the Superior Court of Law for the County of Powhatan, for the murder of Elbert Mosby.
    The first count charged the murder to have been ^committed by means of a dirk, by which a mortal stab in the left side was given; the second count charged that it was done by a horsemans pistol, by which divers mortal wounds and blows were inflicted on the head of the deceased ; the third count charged that the offence was committed by means of a1 club.
    The prisoner was arraigned at the Superior Court of Powhatan, on the 13th May, 1828, and before pleading, moved the Court to quash the Indictment against him, on the ground that his examination before the County Court had not been regular and legal, and he produced the Record of the Examining Court in support of his motion. The following is a brief history of the proceedings before that Court.
    The Examining Court first met on the 17th January, 1828, and on the motion of the prisoner, and because some of his witnesses were absent, the case was continued till the 18th, and on that day, for the same cause, it was continued till the 19th, and on that day, on the same motion, and for the same cause, it was continued till the next Court.
    On the 20th February, the Court again assembled, and on the prisoner's motion, and for the same cause, the examination was postponed till the 21st. On that day, the prisoner moved to continue the cause till the next Court, and in support of his motion, produced a Subpoena for fifteen witnesses, and another Subpoena directed to the Sheriff of Amelia, directing him to summon three other witnesses, William Milestone, Thomas Carsley, and Polly A. Carsley, and the prisoner swore that these three witnesses were material; that he could not prove by any other what he expected to prove by them, and that he could not go safely to trial without them. It appeared, however, that the Subpoena had not been taken out of the Office, nor applied for by the prisoner, or any person for him. The Court refused to continue the case till the next Term, but did postpone it till the next day. On the 22d, the prisoner again moved for a continu-anee till the next Term, *and produced a Subpoena directed to the Sheriff of Cumberland, commanding him to summon eight witnesses. It was executed on all but one. He swore to the materiality of two of the witnesses so summoned, and one not named. The Court refused to continue it, there being present fifty-four witnesses on the part of the Commonwealth, and twenty-two on the part of the prisoner, and proceeded to the examination, and after some progress, adjourned till the 23d, and then till Monday, the 25th, on which day, one of the Justices being sick, the further examination was necessarily deferred till the next Term.
    On the 19th March the Court again met. The prisoner again moved for a continuance till the then next Term, on account of the absence of four witnesses, who do not appear to be any of those mentioned in the preceding motions. The motion was over-ruled, and on that day, and on the 20th and 21st March, proceeded with the examination of the witnesses for the Commonwealth. After that evidence closed, the prisoner again applied for a continuance till the April Term, because of the absence of the witnesses mentioned by him on the 19th. Those witnesses had been summoned, and did not attend, but the prisoner had not applied for any other process to coerce their attendance. The Court over-ruled the application, and the prisoner not calling any witnesses to be examined, the Court remanded him for trial to the Superior Court of Powhatan.
    It appeared that the Warrant of Commitment was dated the 18th December; that the regular County’ Court of Powhatan sat on the 20th ; and that the Examining Court was called to meet on the 27th of December; it did not meet on that day, and stood adjourned by Eaw till the regular Term in January. The Act of Assembly authorises (he County Court to continue the examination from Term to Term, ‘‘provided, that such continuance, unless on the application of the prisoner, shall not be beyond the third Term after he shall have been committed for examination.” The objection made by the prisoner to the regularity of the Examining “Court, was, that the December Court was the first Term after his commitment, and the February Term the third, and that it was not on his application that it was continued beyond the third Term. The Superior Court decided that the December Term was not the first. That Court had no cognizance, either to examine or continue the examination, having been held within less than five days after his commitment, and, therefore, according to the express directions of the Act, had no jurisdiction of the case; and that the January Court was the first Court, after his commitment, that could take cognizance of the case, and the March Court the third. The motion to quash the Indictment was, therefore, over-ruled.
    The prisoner then pleaded to the Indictment, and was put on his trial. But, the venire being all challenged for cause, and the bystanders who were summoned, being also challenged for cause, and the Court, satisfied that an impartial Jury could not be had, ordered that the trial of the prisoner should be changed to the Superior Court of Chesterfield.
    On the 5th of June, 1828, the prisoner was brought before the last mentioned Court, and on his motion, the trial was continued till the then next Term.
    On the 8th November, 1828, the prisoner was led to the Bar, and applied to the Court fot a continuance till the next Term, which was refused, and the prisoner excepted. The Bill of Exceptions sets out a Subpoena for Polly A. Carsley, which was returned executed by the Sheriff of Powhatan. The prisoner also swore to her materiality, and her absence. The Court required him to state what he expected to prove by her, and in conformity to that requisition, he stated that he expected to prove by her, that she was present at the prisoner’s house on Friday the 7th December, 1827, the day previous to the night on which Elbert Mosby was killed, and that she saw the prisoner’s wife then dressing the wound on the breast of the prisoner: he also introduced a witness who proved that she heard the “absent witness, Polly A. Carsley, say that she was at the prisoner’s house on Friday the 7th December, 1827, and that she then saw the wife of the prisoner taking fur from a hat which the wife of the prisoner said she was going to apply to a wound on the prisoner’s breast. It was proved, to the satisfaction of the Court, that the absent witness, Polly A. Carsley, was too sick to attend Court, without danger to her life. The Court overruled the motion, and ruled the prisoner into trial, because the prosecution was continued on the prisoner’s motion at the last Term; at which time, although the nature of the accusation, the enormous expense of the prosecution, together with the fact, that at the Examining Court none of his witnesses had been examined, and the necessity of a change of venue in this case, admonished the Court against lending too willing an ear to the prisoner’s motions for continuances; yet, the Court, without requiring him to disclose any of the facts of his defence, granted the continuance, but at the same time, the Court admonished the prisoner, that upon a second motion of the same kind, the affidavit of the witness, on account of whose absence the motioa should be made, must, if practicable, be produced, that the Court might judge of the materiality of the witness: and because as the ili health of the witness, who is the daughter of the prisoner, has been of some considerable duration, the husband of the . witness who gave evidence of what mig’ht probably be the evidence of the said absent witness, being the son-in-law of the prisoner, and an active and intelligent man, and apparently zealously engaged, in preparing the prisoner’s defence, could easily have taken the affidavit of the said witness: and because, there being upwards of thirty witnesses summoned for the prisoner, it is the opinion of the Court that every probability is against the future attendance of many of said witnesses, who are now in attendance on the Court.
    Before the panel of the Jury was completed, one Daniel Chalkley was called as a venire-man, and being sworn to *answer questions, said that he had never heard any detailed account of the evidence that had been, or would be, adduced against the prisoner; that he had heard nothing more than that the prisoner had been charged with killing a man, and that the impression made on his mind was, that if guilty, he should be punished, but if not, that he should be acquitted. On cross-examination, he said he had an impression on his mind, made by what he had heard, and that he did not know, if sworn on the Jury, that he should be able to render a verdict in the cause free of influence from the impression now and heretofore existing on his mind; but, on further examination, he stated that the impression on his mind, and which he thinks will remain, is as to what ought to be done with persons guilty of such offences, and not whether the prisoner is guilty or not: saying also, that he felt prepared to hear the evidence, and to decide the case by it. The prisoner challenged the said venireman for cause, but the challenge was over-ruled by the Court, and the prisoner subjected to the necessity of challenging him peremptorily, or of being tried by him; to which opinion of the Court, the prisoner excepted. The venire-man was challenged peremptorily.
    During the trial, the prisoner filed four several Bills of Exceptions to the opinions of the Court, which are as follows:
    The first Bill states, that Doctor Abner Crump was introduced as a witness to prove the appearance of the dead body of Elbert Mosby, and the wounds upon the body, who, in describing the wounds, stated that he was of opinion that some of them, which he examined on the body of the said Mosby, has been made with a dirk, especially one on the side. The Counsel for the prisoner objected to the opinion of the witness being given in evidence to the Jury, upon the ground that the witness did not possess such a degree of skill and experience as a Surgeon, as to entitle his opinion to the weight of evidence. This objection required evidence to be given to the Court, as to *skill and experience of the witness as a Surgeon. It was proved by himself and others, that he was a regular graduate of the University of Pennsylvania, at which institution, ample means of practical instruction in Surgery existed, when Doctor Crump graduated : that he practised Surgery and Medicine ever since he graduated, now about seventeen years; about five years in Manchester, and the rest of the time in Powhatan County: that cases of Surgery are not so frequent in the Country as in the City practice, but that he has been called on to perform Surgical operations, and has performed them without the aid of others, and has been sometimes called to the aid of others in the performance of Surgical operations. He admitted, that he had not been called on to amputate a leg, or an arm, or to perform any operation for a calculus in the bladder; and he could not say whether he had performed three Surgical operations in the course of a year since he graduated: that he had frequently been called on to examine injuries to the human body, in cases in which no Surgical operation was. required: and it was proved, that he stood .high as a Physician in his neignborhood, and that he would be confided in as a’Surgeon bv the people: and it was also testified by Doctor Archer, that from the standing and character of Doctor Crump, he is equal as a Surgeon to any Medical man in the County, who has attended only to the cases arising within the range of his own practice. The witness, Crump, also stated, that from his general acquaintance with the human body, and his knowledge of the practice and principles of Surgery, he entertained no doubt that he could form a correct opinion as to the difference between wounds made with a knife or dirk by stabbing, although he had no recollection that he had ever seen and inspected a wound made by a stab with a dirk or knife. The Court over-ruled the objection to the competency of the said evidence, and permitted the opinion of the witness to be given .to the Jury as evidence, and the prisoner excepted. *The second Bill of Exceptions states, that on the trial, Henry Flour-noy was introduced as a witness by the Commonwealth, who proved that some two or three days before the Fall Term of the Superior Court of Powhatan, in the .year 1827, the prisoner lent to the witness a dirk, which, on the first day of the said Superior Court, he returned to the prisoner: the dirk he has never had since. The Commonwealth then introduced a witness, John Seayres, who proved that a dirk, which he verily believes, to be the one now exhibited in Court, from the general appearance of the dirk, was found by the witness, without the cap now on it, under the boxing to the stable of Robert Mosby, on Monday morning, after breakfast, of the 10th December, 1827, which stable is about -yards from the place at which Elbert Mosby’s dead body was found, and about -- yards from the house where Robert Mosby now lives, and where Elbert Mosby did live. There was no appearance of blood on the said dirk. The Commonwealth further proved by the said Henry Flournoy, that the dirk lent by the prisoner to him, hada metallick handle, and was the only one he ever saw; and he remembered, before he saw the dirk now produced in Court, that the one which he had borrowed, had upon the handle the letters J. C. or J. H., but did not remember which. The witness being asked, said he did not know the dirk, either with or without the cap, to be the dirk he had borrowed from the prisoner, except from its general appearance, and cannot say that the dirk now produced in Court is the same he borrowed. The Commonwealth also proved by Jacob Mosby, that the cap, now exhibited in Court, with the letters J. H. engraved upon it, was handed to him, sometime after the death of the said Elbert Mosby, and within one month from that time at his own house, a mile and a half, or two miles from the place where the said Elbert was killed, by a negro belonging to the estate of the witness’s mother, but how the negro became possessed of it, he does not know. This cap being applied to the handle *oi the dirk in Court, apparently fits the same. The Commonwealth also proved by Hugh French, that some sixteen or seventeen years ago, he purchased for James Hickman, a half brother of the prisoner, a dirk, on the handle of which were engraved the letters J. H., but he has not seen the dirk since he handed it to the said James Hickman, soon after the purchase, and cannot now say that the dirk now exhibited in Court, is the dirk he so purchased : does not remember what kind of handle the dirk had which he purchased, nor does he know that the prisoner ever was possessed of the dirk so purchased by him for James Hickman, or the dirk now produced in Court. The witness also proved, that the said James Hickman died unmarried and without children, but whether testate or intestate, he knows not. The Commonwealth further proved by Robert Mosby, that he once saw, in the possession of the prisoner, a dirk, which, as well as the witness remembers, the prisoner told him was the only property he ever received that belonged to his brother, James Hickman. The witness does'not remember whether the dirk he saw in the prisoner’s possession had a metal, or ivory handle; and although he remembers the letters J. H. were engraved on the handle, he does not remember whether they were made in the form of the letters on the cap of the dirk now produced in Court, or not. There was no evidence produced before the Court, which tended to prove that the prisoner had ever been at the place, or near the place, where the said dirk was found, other than that herein-before stated. Which facts and evidence the Counsel for the prisoner moved the Court to exclude from the Jury, as illegal evidence, and not tending to prove the use of the said dirk in the killing of the said Elbert Mosby; but, the Court over-ruled the motion of the prisoner’s Couusel, and permitted the said evidence to go to the Jury, for them to decide, whether the dirk, so found, be the property of the prisoner; and if they find to a certainty, that the said dirk is the property of the prisoner, *then the fact, that the prisoner’s dirk was so found, is to be considered by them as a circumstance to be weighed with the other facts and circumstances given in evidence; but, the Jury will observe, that when guilt is attempted to be proved by circumstantial evidence, there ought to be no doubt of the facts used as circumstances. To the opinion of the Court the prisoner excepted.
    The third Bill of Exception states, that the Commonwealth introduced Mozes Cardozo to prove that some three or four months before the death of Elbert Mosby, he borrowed a horseman’s pistol of Thomas Scott, ji\, to lend, and did lend the same to the prisoner, who said he was going to the Western Country: that the said pistol had never been returned by the prisoner to the said Cardozo. The Commonwealth also introduced the said Thomas Scott, jr., as a witness, who proved that he did lend a horseman’s pistol to the said Cardozo, which had never been returned to him by the said Cardozo, or the prisoner. No evidence having been offered in this Court of the prisoner’s confession, the Counsel for the prisoner offered to prove by the said Thomas Scott, jr., what disposition the prisoner had stated to the said Scott and Doctor Henirig, since the death of Elbert Mosby, he had made of the said pistol, the Commonwealth having introduced the said Hening before the Examining Court, to prove, and by him did prove, the confession of the prisoner as to the disposition which he, the prisoner, had made of the said horseman’s pistol; but the Court refused to allow the prisoner te avail himself of the benefit of his confession proved by the Commonwealth, and a1 tempted to he used against the prisoner before the Examining Court. To which relusal the prisoner excepted.
    The fourth Bill of Exceptions states, that on the trial of the cause, the Commonwealth introduced evidence to prove that a knife exhibited in Court, was picked up on the ground, not far from where the dead body of Elbert Mosby was found, on the morning of the second day after *he was killed. The Commonwealth also introduced Allen Jenkins to' prove, that the said knife was lent by him to the prisoner, on the second da.y of October Cumberland Court, 1827, in the orchard on Hezekiah Ford, about one mile from Cumberland Court-house, the said Jenkins admitting in his evidence given on this trial, that he had been examined before the committing Justice, and Examining Court in this case,' not less than three times, and that he had in each examination before the present, sworn that he lent the knife, which he verily believes to be the one exhibited in Court, on the second day of Cumberland September Court, 1827: the prisoner then offered evidence to prove that evidence was introduced by the Commonwealth on two several occasions before the Examining Courts in this case, to sustain the evidence given by the said Allen Jenkins, in his first three examinations in this case, to wit: the evidence of one William Maxcy, who proved before the said Examining Courts, that he saw the prisoner in possession of the said identical knife, now produced in Court, some time in the latter part of August, or the early part of September, in the year 1827, as far as the said Maxcy could swear to the identity of a knife from its general appearance. The said Maxcy not having been summoned by the Commonwealth, or the prisoner, to this Court, the Court excluded from the Jury any evidence of what the said Maxcy had sworn to, in relation to the identity of said knife, and the time at which he saw it in the possession of the said prisoner, as illegal evidence to show, or tending to show, the means resorted to, to sustain this prosecution, or for any other purpose, the said Maxcy being now living, and residing in the county of Powhatan. To this opinion of the court, the prisoner excepted.
    The court commenced this case on Saturday the 8th of November, and on Monday the 10th, the panel of the Jury was completed; the trial continued on the 11th, 12th, 13th and 14th November. On the last mentioned day, the Jury retired to consult of their verdict, and after some *time returned, and found the prisoner guilty of murder in the first degree. The transcript of the Record furnishes this memorandum. “It was after midnight when the Jury rendered their verdict in this case.”
    On Saturday the 15th November, the Court again met, and passed sentence of death on the prisoner. The hour of the day on which this sentence was passed, is not noted on the Record.
    The prisoner applied to the General Court for a Writ of Error to the Judgment, assigning as errors: 1st. The refusal to continue the cause; 2d. The refusal to reject Chalkley, as an unfit Juror; then the opinions which are set forth in the four Bills of Exceptions filed during the triai; and 7th. -“Because the verdict of the Jury, and Judgment of the Court thereupon, were rendered and pronounced against your petitioner, after the Term of the said Superior Court had been legally ended, and when the Jury had no lawful authority to render such verdict, and the said Superior Court no lawful authority to pronounce such Judgment, to wit, on the 15th November, 1828, the first day of the present Term of this (General) Court. See 1 Rev. Co. p. 219, sect. 1, and p. 229, sect. 3.”
    S. Taylor for petitioner, and the Attorney General for the Commonwealth, submitted the case.
    
      
      For monographic note on Expert and Opinion Evidence, see end of case.
    
    
      
      Crimlna! Law — Third Term of the Commitment — Statute — Construction.—In Kemp v. Com., 18 Gratt 975, it is said: “The other ground of the motion to quash is, that the commitment, as shown by the certificate of the justice, was made on the 13th of Dec., 1866, and that the examination was had by the county court, at a regular term held on the same day. This objection is based on the authority of Mendum's Case, Rand. 704. That decision, however, was made under the law as it stood in the revised Code of 1819, and has no application to the provision of the present Code. By the Code of 1819, ch. 169, the committing justice was required to issue his warrant summoning the justices to meet for the examination of the fact, on a certain day not less than five, nor more than ten days after the date of the warrant. If the justices failed to meet, the examination stood adjourned to the next regular term of the county court. The court might continue the examination from term to term, provided such continuance, unless on the application of the prisoner, should not be beyond the third term after his commitment for examination. Mendum was committed two days before the December term. The examining court was called to meet seven days after the December court day. It faiLed to meet, and so stood adjourned to the January term. The general court held, that the January term was to be counted as the first term after the commitment, so that the examination at the March term was regular. This, of course, involved a decision that the examination could not regularly have been had at the December term; and obviously it could not, because five days did not intervene between the day of the commitment and December court day, and also because an examination could not be had at a regular term, unless the called court failed to meet, or adjourned to the regular term.”
    
    
      
      Same — Continuance—Absent Witness. — See mono-graphic note on “Continuances” appended to Harman v. Howe, 27 Gratt. 676.
    
    
      
       Courts — Duration of Term. — Tbe law h as fixed no limit to the terms of the circuit superior court, except that the judge holding the court shall adjourn in time to hold the next court in his circuit at the time appointed by law. And the judge may continue the session of his court until the latest period which will allow him time to get to the next court by 4 o’clock P. M. of the third day of the term. Hill v. Com., 2 Gratt. 595, 613, 627. citing the principal case to sustain the proposition. And in the absence of proof to the contrary, it must be presumed that there was sufficient time after the entering of judgment, for the judge of a circuit to have reached the courthouse of an adjoining county, by the ordinary course of travel, before 4 o’clock, p. in. on the third day after the period fixed by law for the term, to commence. Boice v. State, 1 W. Va. 333, citing principal case to the point. On the same subject the principal caséis cited in Whiteford v. Com., 6 Rand. 725; Brown v. Hume, 16 Gratt. 468. See further, monographic note on “Courts” appended to Cropper v. Com.. 2 Rob. 842.
      Criminal Law — Jurors—Competency —Preconceived Opinion. — On this subject the principal case is cited in Jackson v. Com., 23 Gratt. 931; State v. Baker, 33 W. Va. 324, 10 S. B. Rep. 641. For further information on the subject, see monographic note on “Juries” appended to Ohahoon v. Com.. 20 Gratt. 733.
      Same — Jury—Custody of Sheriff — What Record Must Show — Oath of Mierilf. — The Sheriff is ex officio bound to keep the jury when adjourned in a criminal case» and it is notindispensiably necessary that he should be sworn; butifit were necessary to swear him, it would be presumed that he was sworn, in a case where the record does not show the contrary. Bennett v. Com.. 8 Leigh 745, 752, citing the principal case to the point. To the same effect, the principal case is cited in Barnes* Case. 92 Va. 807, 23 S. E. Rep. 784. See further, monographic note on “Juries” appended to Chahoon v. Com., 20 Gratt. 733.
    
   BOULDIN, J.

delivered the opinion of the Court.

After stating the case, he proceeded:

Every error assigned has been carefully examined by the Court, as also the point which arose on the prisoner’s motion to quash the Indictment. But except the first and seventh of the errors assigned the Court see nothing whereon to raise a doubt.

Whether the Superior Court of Chesterfield ought to have continued the cause, will now be considered. On examining the Record, we find that the Record of the ^Examining Court is made a part of it. On inspection, it appears at once that the prisoner meant not to be tried as long as he could get continuances. The list of witnesses to whose materiality he swears on several occasions, is numerous, and yet on the final examination, when those to whose materiality he had sworn at the former Courts, do not appear to have Deen absent, notone of them was called on by _ him to give evidence in his behalf. This shows distinctly that the continuances moved for in that Court were not that he might have the benefit of the evidence of witnesses on his examination. At the first Term of the Superior Court of Chesterfield, he moved for a continuance, and it was granted to him, but he was informed by the Court, that on repeating that motion at a subsequent Term, he must prove the materiality of the absent witness, by producing the affidavit of the witness, if it could be procured. The circumstances of the case called for this caution. The evidence expected from the witness was short and simple; her affidavit might easily have been taken. If it had been taken, the prosecutor might have admitted it to go to the Jury. If the circumstances in any case can warrant such a conclusion, they will in this, that the affidavit was kept back either because the witness would not swear to what was expected, or that the prisoner preferred the chance for a continuance to the use of the evidence.

A reason which appears to have had influence with the Judge below is not without weight. There were more than thirty witnesses present on the part of the prisoner. For aught that appears, eacn of them might be able to give evidence having some remote bearing on the evidence given against him. No precise rule can be laid down as to the influence this circumstance ought to have in any case upon a motion for a continuance, but it is easy to see that such a number of witnesses lays the ground work for motions of this sort to be endless, and calls on the Court for circumspection in granting them. Upon all the circumstances here developed, the Court is unanimously of opinion, *lhat the prisoner’s motion for a continuance was properly over-ruled.

The question arising from the seventh error assigned, is whether the November Term of the Superior Court of Chesterfield was at an end when the verdict was rendered, and the Judgment given in the case. This depends on the true construction of the third section of the Circuit Court Law, 1 Rev. Co. p. 229, taken in connection with other sections of the same Act, and the General Court Law. The first section, p. 226, enacts, “that one Judge of the General Court shall hold a Court in each year at the Court-house, &c., at the times, and in the manner hereinafter directed.” The second section arranges all the Counties into Circuits, and appoints the day of holding the Courts for each; thus, “a Court shall be holden in — Chesterfield on the second day of June, and the second day of November. ” Then comes the third section. “Each of the aforesaid Courts shall sit until the business thereof shall be dispatched, unless the Judge holding the same be compelled to leave the Court, in order to arrive in time at the next succeeding Court of his Circuit, or at the General Court.” .'The eighth section of the same Law, p. 230, declares that, “if the Judge shall not”; attend on the first day of any Circuit Court, such Court shall stand adjourned from day to day, until a Court shail be made, if that shall happen before four of the clock in the afternoon of the third day.” The General Court halt, p. 219, sect. 1, enacts, that “the General Court shall consist of (fifteen) Judges, &c. a majority of the whole number of the said Judges shall be necessary to constitute a General Court for the transaction of business in Term time, except as herein is excepted. The said Court shall be holden at the Capitol in the City of Richmond. The said Court shall be holden twice in every year, namely, on the fifteenth day of June, and fifteenth day of November. If a ■sufficient number of Judges should not attend on the first day of any Term, any one of the said Judges may adjourn the Court from day to day, for six days successively.”

Hn the language of the third section, there is certainly no express limitation of the Term: each Court is to sit until the business is dispatched, and two of the Judges (Brockenbrough and Summers,) are strongly inclined to think that the qualifying words, “unless the Judge be compelled, &c.,” are tobe considered as directory, or permissive only, and that of the necessity to go to the next Court, or to finish what is before him, and what has been already begun, he is to judge, and on his own responsibility to decide whether a compliance with the express order of the Legislature, to dispatch the business before him, or to go to the next Court as the Law permits, will best subserve the public interest. And they argue that it is right it should be so, or else there would often be a failure of justice. In some of our Courts, it sometimes happens that cases of the most important character could not be finished, and consequently would never be tried, unless the Judge have the power to run imo the Terms of the next Court to which his duty calls him, and as the Legislature fixed no precise limit, the construction which best fulfils their general purpose is the right one. They argue that the state of things at the first organization of the Circuit Court System, shows that theirs is the true rule. At that time the General Court was held on the 9th of June, and November. Many of the Superior Courts were held late in May, and October. In the distant Courts, situated more than three hundred miles from Richmond, the Judge must close his last Superior Court at least as early as the last day of the preceding month, to arrive here on the first day of the session of this Court. But that day finds him closely engaged in a difficult and important cause, which cannot yet be finished for a week. Had he no discretion to finish that cause because the Law required him to attend at Richmond on the 9th? Was every thing that he did there void, and coram non judice, because of that injunction of the Law? They cannot think so.

But, whether that opinion be right or not, (and they do not deem it necessary to press it) those Judges concur with “five other Judges now present, in the opinion, that no limitation of the Term of the Court, which can be implied from the words of the third section, makes the Judgment now under consideration, void or erroneous.

If the Judge of the Superior Court of Chesterfield, after closing that Court on the ISth instant, did arrive, or could arrive at this Capitol at any time on rhe same day, he would have been “in time” to hold, in concurrence with seven others, if so many attended, a General Court on that day, or to adjourn the General Court to the next day, if he only attended: the verdict in this case was rendered in the night of the 14th, although after midnight, and for aught that appears, the Judgment was rendered early the next morning. It is judicially known of this Court that Chesterfield Court-house is not very remote from this Capitol, and that three hours moderate riding would bring the Judge here. If, when that Judgment was rendered, there was not time for the Judge to arrive at the General Court on the 15th, that matter ought to have been shown by exception. Some of the Judges of this Court are in the habit of finishing the business of one Superior Court, in the morning of the first day of the next succeeding Superior Court, and sometimes of doing a good day’s business in the latter Court on the same day.

Suppose the Act of Assembly to be construed as if in place of the words “unless,” &c. it had been thus written: “but so soon as it becomes necessary for the Judge to leave the Court, in order to arrive in time at his next Court, his power to hold the former Court shall cease.” If such had been the language, the Judgment under consideration would still have been good. It appears from this Record, that the Judge rendered the Judgment on the 15th, and it cannot be intended, as it does not so appear, that he did not leave himself time to arrive here on the same day.

It has been argued, that the Act appointing particular and several days whereon the same Judge shall hold several ^Courts, excludes the idea that he may on the day he is directed to hold a Court in one County, be holding it in another. It is true that the first and second sections do declare that Courts shall be held in one County on a particular day, and in another county on another day, and those sections say nothing about the duration of the Term. If the Act had stopped there, it may be doubted whether in strictness the Courts could be held for a longer period than the day so appointed, or whether any adjournment could take place, even to the next day; but then the third section comes in, and does not leave this matter to conjecture, or construction. It in effect, directs that adjournments shall take place, from day to day, until the business is done, “unless the Judge holding the same be compelled to leave the Court in order to arrive in time at the next succeeding Court, or at the General Court.” To construe this permissive language as if it had been, “provided the business can be dispatched before the day on which the next Court is to be holden,” would be to depart from the ietter, not to further, but to defeat, the general objects of the Legislature. That general object is, that the business of both Courts may be done. The natural sense of the language used, does not allow the Judge to leave the business of the Court be is holding unfinished, so long as he can transact the same, and have time to open the next Court on the day appointed by haw.

A majority of the Court do not see any valid objection to taking the time the Law allows the next Circuit Court to stand adjourned to, without the attendance of the Judge, into the account. Thus, according to the eighth section, if the Judge does not attend, the Court stands adjourned from day to day, till four o’clock of the third day. If a trial 'of a cause in the preceding Superior Court, is greatly protracted, the necessity of the case would justify the Judge, in our opinion, in not closing that Court till the period.arrives when he might be compelled to leave the Court in order to arrive at the next Superior Court by four ^'o’clock of the third day. But it is not necessary to decide that question now, particularly' as one of the majority (Saunders, J.) is not entirely satisfied on that point. The Record before us does not show but that the Judge might' have so closed his business in Chesterfield, as to have literally complied with his duty to be here in time, on the first day of this Court. The course taken is a literal adhérence to the Legislative direction to dispatch the business of the Superior Court of Chesterfield, so long as he could do so, and arrive in time at the General Court.

On this seventh error assigned by the prisoner’s Counsel, three of the Court, (Parker, Upshur, and Field. J.) are of opinion, that a Writ of Error should be awarded, but all the other Judges present, being seven in number, are against it.

On all the other points exhibited by the Record, all the Judges are of opinion that there is no error, and the Writ of Error is therefore refused.  