VIRGINIA, 1811. V. Myers. poration, to meet at their court-house on a certain day, not less than five, nor more than ten days, after the date of the Com'wealth, said warrant, to hold a court for the examination of the fact, which court consisting of five members at least are required by law to consider whether, as the case may appear to them, the prisoner should be discharged from further prosecution, or may be tried in the corporation or superior court. And the said Samuel Myers futher saith, that he the said Samuel Myers being a free white person, and not a slave, heretofore, to wit, on the twenty-fifth day of May, one thousand eight hundred and eleven, at the borough aforesaid, was charged by the name and description of Samuel Myers before John E. Holt, esquire, one of the aldermen of the said borough, with having on the twentyfifth day of May, in the year of our Lord eighteen hundred and eleven, between the hours of six o'clock and eight o'clock in the morning, in the store house of Richard Bowden, in the said borough of Norfolk, feloneously, wilfully, and of his own malice aforethought killed and murdered the said Richard Bowden, who was then and there in the peace of God, and of the commonwealth, and being so charged before the said John E. Holt as an alderman of the borough aforesaid, it was the opinion of the said John E. Holt as alderman aforesaid, that the said offence with which the said Samuel Myers was then and there charged before him the said John E. Holt as alderman as aforesaid, ought to be inquired into in the court of the said corporation (which said court is one of the courts of this commonwealth,) whereupon he the said John E. Holt as alderman aforesaid, afterwards, to wit, on the day and year aforesaid at the borough aforesaid, and within the corporation aforesaid, took the cognizance of all material witnesses to appear before the court of the said corporation, to give evidence against him the said Samuel Myers, and immediately by his warrant committed him the said Samuel Myers, to the jail of the said corporation, and moreover issued his warrant to the sergeant of Norfolk Borough requiring him to summon the aldermen of the said borough, to meet at the court house, on Friday, the thirty-first day of May, one thousand eight hundred and eleven, and then and there, to hold a court for the examination of the fact, with which the said Samuel Myers stood charged as foresaid. And the said Samuel Myers further saith, that at the court so summoned, and held on the said thirtyfirst of May, one thousand eight hundred and eleven, and in the thirty-fifth year of the commonwealth, for the examition of him, the said Samuel Myers, so charged with the murder aforesaid, of him the said Richard Bowden, which said court consisted of more than five members, to wit, of William B. Lamb, mayor, John Nevison, recorder, and William Vaughan, Luke Wheeler, Miles King, John E. Holt, Richard E. Lee, and Miles King, Jun. aldermen, he the said Samuel Myers was set to the bar of the said court in custody of the jailor of the said corporation, and charged with the murder aforesaid, whereupon sundry witnesses were sworn, and examined in the premises, and the said Samuel Myers heard in his own defence by his counsel; on consideration whereof it was the opinion of the said court that he the said Samuel Myers was not guilty of the murder aforesaid, with which he stood charged as aforesaid, and ought not to be remanded to the superior court for trial therefor, which he the said Samuel Myers is ready to prove by the record thereof. And the said Samuel Myers' farther saith that the said Richard Bowden named in the indictment, and the Richard Bowden named in the record, are one and the same, and not different persons; that he the said Samuel Myers named in the indictment, and the said Samuel Myers named in`t the said record, and acquitted as aforesaid by the said corporation court of the murder aforesaid, are one and the same person and not different persons, and that the murder charged upon him the said Samuel Myers before the said corporation court, VIRGINIA, 1811. Com'wealth V. Myers. 1 VIRGINIA, 1811. Com'wealth V. Myers. and the murder charged upon him the said Samuel Myers in the indictment aforesaid, are one and the same, and not different acts, and this he is ready to verify; wherefore since he the said Samuel Myers hath already been heretofore acquitted of the murder of the said Richard Bowden aforesaid, he prays the judgment of the court here, if he the said Samuel Myers should be again charged with the same murder of which he hath once already at another time been acquitted." 2d Plea. [This plea is precisely like the first in all its averments, until it comes to the opinion of the examining court, when it proceeds thus:]" In consideration whereof, it was the opinion of the said court, that he the said Samuel Myers was not guilty of the murder aforesaid, with which he stood charged as aforesaid, and ought not to be removed to the superior court therefor, but ought to be tried for the offence of manslaughter before the superior court of law directed to be holden in the town of Portsmouth, in the county of Norfolk, on the 22d day of October, then next following, which he the said Samuel Myers is ready to verify, and prove by the records thereof." [This plea then concludes with the same averments as to ́ the identity of Bowden, Myers, and the act of murder as are contained in the first plea.] 3d Plea. "And the said Samuel Myers for further plea (by leave of the court) saith that he ought not now to be charg ed with the murder and felony aforesaid; charged upon him in the indictment aforesaid, because he saith that he the said Samuel Myers, by the name and description of Samuel Myers heretofore to wit, at a court of alderman of the borough of Norfolk, summoned according to law for the examination of the said Samuel Myers for the murder and felony aforesaid, and held on the 21st day of May, in the year of our Lord 1811, at the court house of the borough aforesaid, be fore William B. Lamb, mayor, John Nevison, recorder, William Vaughan, Luke Wheeler, Miles King, John E. Holt, Richard E. Lee, and Miles King, Jun. aldermen of the said borough, was duly charged, examined and tried for having, on the 25th day of May, 1811, between the hours of six and eight o'clock of the morning of that day, in the store-house of Richard Bowden in the said borough of Norfolk, feloniously, wilfully, and of his malice aforethought, killed and murdered the said Richard Bowden, who was then and there in the peace of God, and of the commonwealth, and that he, the said Samuel Myers, upon this trial and examination was duly and legally acquitted by the said court, of the said murder and felony of which he was then and there so charged, and was adjudged by the said court not to be guilty thereof, and this he, the said Samuel Myers is ready to verify and prove by the record of the said borough, court of Norfolk. And the said Samuel Myers further saith, that the said Richard Bowden named in the said indictment, and the said Richard Bowden named in the said record of acquittal, are one and the same, and not different persons; that the said Samuel Myers named in the said indictment, and the said Samuel Myers named in the said record and acquittal as aforesaid by the said corporation court of the felony and murder aforesaid, are one and the same, and not different felonies; and this he is ready to verify. Wherefore, since he the said Samuel Myers hath already been heretofore acquitted of the felony and murder of the said Richard Bow. den aforesaid, he prays the judgment of the court here, if he the said Samuel Myers should be again charged with the same felony and murder of which he hath once already, at another time, been acquitted." To these pleas the attorney for the commonwealth demurred generally, and the prisoner joined in demurrer. The court adjourned to the general court these questions VIRGINIA, 1811. Com'wealth V. Myers. VIRGINIA, 1811. Com'wealth V. Myers. for their consideration: "First, whether a court of examination hath power to acquit a prisoner charged before them with murder, of the murder with which he stands so charged, and to remand the said prisoner to be tried in the superior court for manslaughter on account of the said homicide? Secondly, whether a prisoner acquitted by the examining court of murder, and remanded to be tried before the superior court for manslaughter on account of the same homicide, but indicated in the said superior court for murder on account of the same homicide, is entitled to be bailed by such superior court after the discharge of the grand jury, who found no other indictment against him?" Not only these questions, but generally, "any and all the other questions of law arising upon the said pleadings" were adjourned by the circuit court to the general court, "with the consent of the said Samuel Myers the prisoner." This case was argued at the November term, 1811, of the general court, by Nicholas, attorney general for the commonwealth, and by Taylor, Tazewell, and Wirt for the pri soner. Nicholas. The first and most important point to be discussed is, whether the examining courts can discriminate between the higher and lower offences-can acquit of the higher grade, and send on for the lower. This question arises from the second plea filed by the prisoner. The plea of autrefoits aquit must consist of two matters, 1st. Matter of record, to wit, the former indictment and acquittal and before what justices, and in what manner by verdict or otherwise. 2d. Of matter of fact, to wit, the identity of the person acquitted, and of the fact of which he was acquitted. 2 Hale P. C. p. 241. As to the first matter he referred to Hawkins, B. 2. ch. 35. sect. 1st., to show that to make the plea good, the defendant must show that he has been found "not guilty" on an indictment free from error, and well commenced before a court having jurisdiction of |