
    *James Halkem v. The Commonwealth.
    June Term, 1815.
    Horse Stealing — Examining Court — Sufficiency of Record.- — The record of an Examining Court need not set forth, the offence with the same precision and certainty as an Indictment; thus : In an examination for horse-stealing, it is not necessary to charge the felonious taking; stealing is sufficient. Nor to lay the horses to be" the property of any person.
    Same — Immaterial Variance between Indictment and Record of Examining Court. — And, if the record of the Examining Court charge the stealing of a dark bay horse; or the stealing of two horses, and a halter chain and collar, of the value of $150; and the Indictment charge the stealing of a dark bay gelding, or the stealing of the two horses of the value of $75 each, these variances are not sufficient to gnash the Indictment.
    
      
      Examining Courts — Sufficiency of Record. — In Burress v. Com., 27 Gratt. 937, it is said; “The record of an examining court when that court was in existence, was not reguired to be as special as an indictment. See 3 Rob. Old Pr. pp. 121-124, and the cases cited, especially Halkem's Oase, 2 Va. Gas. i; and Mabry’s Case, Id. 396; in which latter case R. E. Parker, J., delivering1 the opinion of the court, states the law on the subject very fully and clearly.” See the principal case also cited in Mabry v. Com., 2 Va. Cas. 398; Com. v. Adcock, 8 Gratt. 670. |
    
   The prisoner, James Halkem, was Indicted at the Superior Court of Haw for Wythe county, for horse-stealing. The Indictment charged that he, “with force and arms, one gelding of a dark bay colour of the price of seventy-five dollars, and a mare of a mouse colour of the price of seventy-five dollars, of the goods and chattels of one Peter Snavely, then and there found, feloniously did steal, take and lead away, against the peace and dignity of the Commonwealth.” He was tried on the Indictment, and convicted by the jury, who ascertained his confinement in the penitentiary-house, to be ten years.

When brought to the bar to receive his sentence, and it being demanded of him why the Court should not pronounce judgment, he said, that be had, on the first day of the Court, and before he was put on his trial, moved the Court to quash the Indictment, assigning as a reason therefor, that he had not been examined for the same offence in the County Court; and he produced the warrant for his apprehension, which is set forth in haec verba. That warrant charges, that information on oath had been given to the Justice that “James Halkem, late of Wythe, labourer, did steal and carry away, one horse and mare, and one halter chain, of the value of one hundred and fifty dollars,” &c. He also produced the warrant of commitment, which set forth that he was charged with “stealing a dark bay horse, and a mouse coloured mare, and a halter chain, and collar,” &c. Also the warrant summoning the Justices, which set forth,'that whereas James Halkem was committed to the jail, “it appearing tome that the felonious of-fence with which he stands charged ought to be examined into, &c.” and then directs the sheriff to summon the Justices to hold a Court on the day named, for the examination *of the fact, &c. He also produced a transcript of the record of the Examining Court, in the following words : “Virginia ; At a Court held for Wythe county, on Tuesday, 10th January, 1815. A called Court having been summoned to attend at Wythe Court-house on yesterday for the trial of James Halkem charged with stealing one dark bay horse, and a mouse coloured mare, and a halter chain and collar, of the value of one hundred and fifty dollars, which said Court failed to meet, this Court doth now proceed to the trial of the of-fence wherewith he stands charged, after having the prisoner led to the bar, &c. whereupon the prisoner moved the Court to quash the proceedings for want of form, and discharge him from custody, whieh motion was overruled, whereupon sundry witnesses were sworn and examined, and the prisoner heard in his defence, whereupon, it is considered by the Court, that the prisoner be tried at the next Superior Court, &c.”

The prisoner having produced those documents, contended, that as an acquittal by the Examining Court would have been final, and conclusive in his favor, it was essential that the charge against him should be so certain as to enable him to defend himself, and to shew at a future day, should he be again prosecuted for the same offence, that he had been acquitted ; that it does not appear by the said warrants, or by the record of the proceedings of the Examining Court, whose property the horses, which he was charged with stealing, ■ were, or that they had any owner ; and that he the prisoner was not apprehended, committed, or examined, on a charge for feloniously taking the said horses: but the Court decided that the charge which was made against the prisoner before the Examining Court was sufficiently certain, over-ruled the objection, refused to quash the Indictment, and ordered that the prisoner be put on his trial. The benefit of the prisoner’s exceptions to this opinion of the Court was reserved to him, and the Court pronounced sentence against him.

The prisoner applied to this Court for a writ of error. In his petition he .assigned the following errors: 1. That he was not examined on a charge for feloniously taking the said horses. 2. That by the record of the proceedings of the Examining Court, it does not appear that the horses which the prisoner was charged with stealing had any owner, or that they were the property of Peter Snavely. 3. That he was examined on a charge for stealing a dark *bay horse, and was tried on an indictment for stealing a dark bay gelding : 4. That he was examined on a charge for stealing a horse, a mare and a halter chain and collar, being all of the value of one hundred and fifty dollars, and was tried for stealing á gelding and mare of the value of seventy-five dollars each.

This Court having maturely considered the record, and the reasons assigned by the petitioner for reversing the judgment of the Superior Court of Wythe, and having heard the arguments of the Attorney General for the Commonwealth, is of opinion that the motion be overruled, and the writ of error refused.  