
    *The Commonwealth v. Alexander Goode.
    Criminal Law — Information—Summons.—If a Defendant be presented for a Misdemesnor, and summoned to show cause why an Information should not be filed, and upon the return of that summons executed, the Defendant fails to appear, and the rule be made absolute, and the Information filed, the Court cannot proceed to try it, but the Defendant mustbe summoned to answer the Information, or if he be charged with an offence to which an infamous or corporal punishment is affixed, or may enure, the Court may award a Capias instead of a Summons.
    The Defendant was presented at the Superior Court of Brunswick county, for an assault and battery on Reuben Allen. He was then summoned to appear at the next Court, to shew cause why an Information should not be filed against him for the said offence. Having made default, an Information was filed ; whereupon, the Attorney for the Commonwealth moved the Court to direct a jury to be impanelled to try the Defendant. The Court, however, doubting whether a summons, or other process, ought not to issue, calling on the Defendant to answer the Information before a jury could be impanelled to try him, adjourned to this Court the following questions: 1. When a summons has issued against a Defendant presented for a misdemesnor, requiring him to shew cause why an Information should not be filed against him for such offence, and he fails to appear and shew cause, ought a summons or other process to issue against him to answer the Information, because he can be tried for it; and what process ? 2. What process ought to issue on a presentment by a Grand Jury of a misdemesnor, including a breach of the Peace ? Ought a Capias to issue, or a summons ? Or is either to issue at the discretion of the Court ?
   PER CURIAM.

“ The Court is unanimously of opinion, that although a summons has issued on a presentment made by the Grand Jury for a misdemesnor, and the Defendant has failed to appear, still, if the Information be awarded, the Defendant must be summoned to answer it, and if he be charged with an offence to which an infamous or corporal punishment is affixed, or may enure, the Court may in its discretion award a Capias in the first instance.”  