committed, is a power infinitely more difficult to execute, and more important in its nature and consequences, than the power to decide whether any offence whatever has been committed; and that this is more emphatically true, as it respects the crime of felonious homicide, than any other. How then can it be said, that the former is the major, and the latter the minor power? It is believed, that the converse of the proposition is true. But it is farther said, that these courts have, and do exercise the power of discriminating between the grades of certain offences; as, for instance, those which have been men. tioned, burglary and larceny. And this is true, but it is not easy to see how it affects the argument. No one doubts but that they may do any act necessary and proper for the due exercise of the power actually given to them. They are expressly directed to send the accused, if guilty, to the court in which by law he ought to be tried; but in these cases, it is impossible to ascertain in what court the trial ought to be had, without first ascertaining whether the offence be or be not petty larceny, and so far they may and must discriminate. But how does that prove that in a case not necessary to the exercise of a power actually given, they may discriminate for the purpose of interfering with, and controlling the opinion of that court to which, by direction of law, they send the prisoner for farther trial? We are also 'told that this power is given by the third sect. of the act of 1804. That section enacts "that if any person charged with any crime or offence against the commonwealth shall be acquitted or discharged from farther prosecution by the court of the county or corporation in which the offence is, or may by law be examinable, he or she shall not thereafter be examined, questioned or tried for the same crime or offence; but may plead such acquittal or discharge, in bar of any other or farther examination or trial for the same VIRGINIA, 1811. Com'wealth V. Myers. VIRGINIA, 1811. Com'wealth V. Myers. crime or offence, any law, custom, usage or opinion to the contrary in any wise notwithstanding." Now upon what principles of construction can this section be said to give a power to acquit or discharge? Is it not most clearly and palpably predicated on the idea that the power had already been given? And is it not manifestly intended to declare what shall be the result of that acquittal or discharge, which the court already possessed a right to pronounce? To find, then, the extent of that power to acquit or discharge, we must look into that part of the law which gives it. And when we do so, we discover it is this very power to discharge from farther prosecution, out of which the present question has arisen, and which, it is believed, has already been proved not to confer the discriminating power contended for. But the construction put upon this section is attempted to be farther supported, by stating, that any person charged with a crime or offence, who is acquitted or discharged by the examining court, shall not be questioned for the same crime or offence, and then stating every decree of a crime which grows out of an unlawful act, as forming by itself a separate and distinct crime, and not as forming different degrees of the same crime. Consequently it is inferred, that murder and manslaughter are distinct crimes or offences, although they are alleged to grow out of the same unlawful homicide. And that therefore, if the examining courts acquit a man charged before it with murder, but go on to say that he is guilty of manslaughter, by perpetrating the same felonious homicide, for which he was charged with the murder, he is thereby acquitted of the crime wherewith he stood charged, to wit, the murder; and may plead that acquittal in bar, by virtue of this third section. But this is an incorrect understanding of the word crime and offence, as they are used, both by the common law and the statute un der consideration. In legal acceptation those words are sy nonymous terms, although the word crime is often used to denote offences of the higher grades. 1 Haw. p. 1. 4 Blac. Com. page 4 and 5. In the same fifth page of 4 Blackstone's Commentaries, we are told, that crime consists in doing an act in violation of a public law; and in the second page of the same book, that the law teaches the grades of every crime, and adjusts to it its adequate and necessary punishment. Crime or offence then is the doing an act in viola tion of a public law; and the different degrees of atrocity which may attend its commission, fix the degree of the crime. The killing of a human being in any case not specially allowed or excused, is a crime distinguished by the name of felonious homicide. But as that crime may be attended with greater or lesser degrees of guilt, these degrees are distinguished by different names and punishments. But still they all constitue the same crime, felonious homicide. And murder being the highest grade includes all the others. So that a man charged with murder, is charged with every species of felonious homicide. Blackstone, after having in his fourth volume disposed of sundry crimes of a different nature, in his 14th chap. comes, as he says, to consider "those crimes which in a more particular manner affect or injure individuals." And in the 188th page he proceeds to consider the crime of felonious homicide, that "being," as he says, "the killing of any human creature, of any age or sex, without justification or excuse; and this he adds may be done by killing one's self or another man. He then goes on to describe the various species of that crime, and their respective punishments, clearly showing that in his opinion felonious homicide was the crime, and murder, manslaughter, &c. &c. its various grades. The meaning put upon these words by the statute under VIRGINIA, 1811. Com'wealth V. Myers. 1811. Com'wealth Myers. VIRGINIA, consideration, is precisely the same. When any person is charged before a justice of the peace with treason, murder, felony or other crime or offence, he is to summon a court to inquire into the fact, which is supposed to constitute that crime; when the court has done so, it is to consider whether he may be discharged from farther prosecution. For what? For every species of crime which might grow out of that fact. If they do not discharge him they are to send him to the proper court to be tried.-For what? For another offence? For a crime which does not grow out of the fact, to inquire into which the court was called? Certainly not; it must be for the criminal act, or in other words, the crime, charged upon him by the commitment and summons which constitute the court, and no other; and yet they will send him to one or the other of the courts, as the circumstances attending that fact make the crime with which he is charged more or less atrocious; as for instance, grand or petty larceny. By crime, then, this law does not mean each separate grade of an offence, but the criminal act itself. This it is believed gives a satisfactory answer also to the argument drawn from the interpolated reading of the various sections of this act. The court does not see the force of the argument drawn from the supposed tautology which it is said the construction contended for by the attorney-general will produce. The expressions, acquitted or discharged from farther prosecution, were introduced into the third section very properly out of caution, and are calculated to meet an argument pressed upon the court in this very cause, to wit, that if an examining court should say that a prisoner is not guilty, and actually turn him loose, yet if it does not go on and say on the record, he is discharged from farther prosecution, he may be prosecuted de novo. The argument from analogy is also deemed inapplicable. The grand and petty jury are sworn in a court having general jurisdiction of the crime, and are by the statute and common law charged with every part of it-not so the examíning court: we have seen that its jurisdiction is limited. Besides, it is not correct to say that a grand jury can acquit. It is true if they find ignoramus as to the murder and a true bill as to manslaughter, the attorney cannot try the prisoner for murder on that bill. But if he obtains better testimony, he may send up another bill for murder and try him upon that. One indictment cannot be pleaded in abatement of another, 2 Hale 239.; nor can he return of ignoramus be pleaded in bar. It is said that he will not be prepared to encounter the charge of malice, and therefore will be taken by surprise. The answer is, that this can never happen if the court send him up generally for the homicide, as it ought to do. "But the examining court is an additional barrier erected for the benefit of the accused;" and so it is. No innocent man can now be kept in jail more than ten days without a trial. And if his examining court discharges him, he can never afterwards be questioned for the same crime, two great privileges which he did not enjoy by the common law. The inference drawn from the power to bail stands on the same footing with that drawn from the power to discriminate between grand and petty larceny. It may not be improper, however, to add here, that this power to bail was not given to the examining courts at the time nor for the reason mentioned in the argument: those courts have possessed that power ever since the year 1777. Vide Chancellor's revisal, chap. 17. sect. 58. p. 74. The history we have had of this law does not, it is believed, impugn in the least the construction given to it by the court. From the passage of the first act upon the subject up to the year 1786, we know of no judicial decision upon this point. For although Judge VOL. III. 74 VIRGINIA, 1811. Com'wealth V V. Myers. |