#### Hurd v. The Commonwealth.

December, 1834.

Criminal Law — Necessity of Examination of Felon before Indictment.* — It is error to put a prisoner upon trial on an indictment of felony, found by the grand jury in a circuit superiour court, before any examination of bim for the otlence in the county or corporation court, though such examination be had after the indictment found and before the trial.

Same — Continuance—Absence of Material Witnesses.†— A prisoner indicted of felony makes affidavit that he has four material witnesses, who are absent and resident in other states, without naming them, or stating th at he had made any effort to procure their attendance, or that he expected to be able to procure their attendance; and thereupon prays a continuance: Huno, the motion for a continuance was properly overruled.

Error to a judgment of the circuit superiour court of Petersburg. At June term 1834, Hurd was indicted on the statute against thefts and forgeries, 1 Rev. Code, ch„ 154. The indictment was presented by the grand jury on the 10th June. The prisoner was brought to the bar to be arraigned on the 12th June, when his counsel moved the court to quash the indictment, “because the same had been found by the grand jury on the 10th June, previously to the examination *of the prisoner (which took place at a called court for the town of Petersburg held for that purpose on the 11th of that month), and no indictment had been found by the grand jury subsequent to the examinationbut the court overruled the motion. The prisoner was then arraigned, and pleaded not guilty; and then he moved the court to continue the case until the next term, “on account of the absence of four material witnesses who resided in the states of New York, New Jersey and Rhode Island, to whose materiality he made oath, and alleged that their evidence was necessary in order to his having a fair trial:” but the court overruled this motion also. To both these opinions, the prisoner’s counsel filed exceptions. The prisoner was then put upon his trial, convicted by the jury, and sentenced to ten years imprisonment in the penitentiary according to the verdict. He presented a petition to his court for a writ of error to the judgment; which was allowed.

Allison, for the prisoner.

Lyons, for the commonwealth.

*

Criminal Law — Necessity of Examination of Felon before indictment — On this subject, see principal case cited with approval in Buskirk v. Judge, 7 W. Va. 103; *foot-note*to Com. v. M’Caul, 1 Va. Cas. 271 (containing excerpt from 7 W. Va. 103); State v. Strauder, 8 W. Va. 694.

Although a prosecution be commenced by indictment, the accused is still entitled to the examining court; and there must be anew indictment after such examination before the accused can be put upon his trial. As so holding the principal case is cited by Stamms, J., in Chahoon v. Cora., 20 Gratt. 776.

†

Same — Continuances,—See monographic *note,*on “Continuances” appended to Harman v. Howe, 27 Gratt. 676.

LEIGH, J.,

delivered the resolution of the court. This court is unanimously of opinion, that there was no error in the refusal of the continuance. The affidavit upon which it was asked, merel}7 stated, that the prisoner had four material witnesses (without naming them) absent and resident in the states of New York, New Jersey and Rhode Island, and that their testimony was necessary in order to his having a fair trial. The áffidavit did not state, either that the prisoner had made any effort to procure their attendance, or that he had any reasonable ground to believe he could procure their attendance at any subsequent term. If the mere affidavit of a prisoner, of the absence of witnesses resident in distant states, were regarded as sufficient to entitle him to a continuance, it is obvious it would be an easy matter for any prisoner to delay his trial, almost at pleasure. The continuance, therefore, was rightly refused.

*The exception to the opinion of the court refusing to quash the indictment, states that the prisoner moved to quash the indictment, because the same had been found by the grand jury on the 10th June, previous to the examination of the prisoner, which took place at a called court for the town of Petersburg held for that purpose on the 11th; and that no indictment had been found subsequent to his examination.

It is not stated, on what ground the court *268overruled the motion — whether because the facts were not as stated, or because the law did not require the examination to take place previous to the finding of the indictment by the grand jury.

This court is of opinion, that no one accused of a felony, can be tried upon an indictment found before he has been examined by a county or corporation court. This was decided by this .court, in 1804; Anon. 1 Virg. Ca. 144. Some of the judges doubt, whether it ought not to be taken, that the motion was overruled, because the facts were not as stated in the bill of exceptions. A majority of the court, however, is of opinion, either that enough appears to shew that the facts really were as they are stated, or if not, that the exception is so imperfect that the court cannot see whether the opinion of the court below was either correct or erroneous. And, therefore, the court is of opinion, that the judgment against the prisoner be reversed, and that he be remanded to the jail of Petersburg: that in case the indictment was found before the prisoner was examined by an examining court, he ought not to be tried upon the present indictment ; but if the indictment was in truth 'found after the prisoner had been examined, then a new trial ought to be had upon the present indictment, at the bar of the circuit superiour court of Petersburg.

Judgment reversed.