#### *Anderson v. The Commonwealth.

July, 1835.

Trial of Free Negro — Writ of Error.* — A free negro is prosecuted, convicted and sentenced, for grand larceny, in a corporation court, under the statute of 1831-2, ch. 22, § 11: Heed, a writ of error does not lie from the circuit superiour court to the judgment of the corporation court in such case.

Case adjourned from the circuit superiour court of Petersburg. Anderson, a free negro, was tried for grand larceny, in the corporation court of Petersburg, sitting as a court of oyer and terminer, convicted, and sentenced to imprisonment in the penitentiary for five years. He was prosecuted and tried, under the provisions of the statute of 1831-2, ch. 22, *4*11, (Supp. to Rev. Code, ch. 187, p. 248,) in the same manner in which slaves are prosecuted and tried. There was no indictment or information filed ; nor did it appear that the prisoner was otherwise informed of the offence for which he was tried, than by the mittimus of the magistrate who committed him, and by an entry on the record, that he had been committed to the custody of the sergeant, and “charged with larceny committed in stealing from Charles Kent of the town of Petersburg, one bale of cotton of the goods and chattels of the said Kent” — “ whereupon the prisoner being arraigned of the premises, pleaded not guilty. ” The court, after hearing the evidence, declared its unanimous opinion, that he was guilty: but before sentence was pronounced, the prisoner’s counsel made a motion in arrest of judgment, “because there was no indictment filed.” The court overruled the motion, one jústice dissenting, and then proceeded to pass sentence on the prisoner. The *277prisoner first applied to this court for a writ of error to the judgment of the corporation court; which was denied; Anderson’s case, 4 Leigh 693. And then he applied to the circuit superiour court of Petersburg for the writ of error; assigning errors, 1. that the corporation court erred in overruling the prisoner’s motion in arrest of judgment; and 2. that that motion should not have been overruled, and final sentence passed upon the prisoner, unless the court had been ^unanimous, not only on the question of guilt, but upon the sufficiency of the reason in arrest •of judgment. The circuit superiour court allowed the writ of error; and then adjourned to this court, with the prisoner’s consent, the following questions : 1. Does a writ of error lie to the judgment of a county or corporation court, sitting as a court of oyer and terminer for the trial of a free negro? 2. Is it necessary, that the attorney for the commonwealth should file an information, or written specification, of •the charge against a free negro, other than that contained in the mittimus, upon his trial before such court of oyer and terminer? 3. All other questions arising on the record.

*

See *foot-note*to Peter v. Com., 2 Va. Cas. 330; monographic *note*on “Appeal and Error” appended to Hill v. Salem, etc., Co., 1 Rob. *283.*On the subject of larceny, see monographic *note*on “"Larceny” appended to Johnson v. Com., 24 Gratt. 555.

SCOTT, J.,

delivered the resolution of the court. As long ago as 1823, this court decided, that a writ of error did not lie to the judgment of justices of a county court, sitting as a court of oyer and terminer upon the trial of a slave; Case of Peter, a slave, 2 Virg. Cas. 330. This decision, it is believed, accorded with the general understanding of the law prior to that time. No attempt has been made to shake its authority ; nor has the legislature manifested any inclination to change the law in that particular.

By the statute of 1831-2, ch. 22, $ 11, it Is enacted, that “free negroes and mulattoes shall hereafter be prosecuted, convicted and punished, for any felony by justices of •oyer and terminer, in the same manner as slaves are now prosecuted, tried, convicted and punished: and any court summoned or adjourned for such trial, shall have and exercise all the powers and incidents of a court summoned and adjourned for the trial of a slave; except that in cases of homicide, and in cases where the punishment shall be death, the mode of trial shall be as heretofore.” By this provision, we think, the legislature has, in all that concerns the trial of free persons of color, for offences cognisable by the justices of oyer and terminer, placed them on the same footing with slaves. They are to be prosecuted ‘ !in the same manner as slaves are prosecuted:” they are tobe convicted “by justices of oyer and terminer in the same manner as slaves” *are convicted: they are to be adjudged not guilty, if a single member of the court is of that opinion: but when found guilty by the unanimous consent of the whole court, the sentence is not subject to revision by any other court, but is final and conclusive. A court of oyer and terminer for the trial of a free negro or mulatto is, moreover, to “have and exercise all the powers and incidents of a court summoned or adjourned for the trial of a slave.” Every thing, then, that can be predicated of a court sitting on the trial of a slave, may be predicated of a court sitting on the trial of a free negro. In the case of a slave, the court has the power to pass final sentence; and one of the incidents to the judgment of such a court, is, that it is not subject to revision.

This court is of opinion, and doth decide, that a writ of error does not lie to the judgment of a county or corporation court sitting as a court of oyer and terminer for the trial of a free negro or mulatto. It is, therefore, unnecessary to decide the other questions adjourned. Which is ordered to be certified &c.