#### *Young v. The Commonwealth.

December, 1842.

Criminal Law— Commitment—Offense Insufficiently-Specified.—On trial of indictment against W. *Y.*for felony in stealing a slave, prisoner Is acquitted ; whereupon court makes the following order: “It appearing to the court, by the testimony of witnesses this day examined on the trial ofW. *Y.*that he is guilty of a misdemeanour, it is ordered that he be remanded to jail, and continued in the custody of the jailor of this court till the next term to answer an indictment then to be preferred against him.” In a bill of exceptions to this order filed by the prisoner, the offence for which he was so remanded is further described as “a misdemeanour under the-statute Suppl. to Rev. Code, ch. 184, § 1, p. 243.,r On writ of habeas corpus sued out by W. Y. the general court holds the commitment illegal, as not sufficiently specifying the offence, and discharges the prisoner out of custody under the same.

Same—Same—Remand after Discharge from Illegal Commitment.*—A party being acquitted of felony, and thereupon committed by the circuit court to take his trial for a misdemeanour, this court discharges him on habeas corpus, because the order of commitment does not sufficiently specify the offence ; but it appearing, from the record of the proceedings in the circuit court, that there is reasonable ground to suspect the party of having committed a violation of the criminal law (other than the specific crime of which he was acquitted) proper to be made the subject of judicial enquiry, this court orders the sheriff to take him again into custody and carry him forthwith before a justice of the peace, to be dealt with according to law.

William Young was indicted in the circuit superior court for the county of Henrico and city of Richmond, for felony in stealing a negro woman slave named Eliza, the property of Sarah’ C. Atkinson. Before pleading to the indictment, he moved the court to quash the same; which motion being overruled, he filed a bill of exceptions, shewing as the ground of the motion, that “the prisoner had not been examined for the offence with which he is charged in the indictment, as appears by the warrant *449summoning the examining court, and the proceedings thereof.” He was then tried upon the indictment, and the jury having found him not guilty, the *court gave judgment that he be acquitted and discharged of the larceny aforesaid. “Whereupon” (the record proceeds) “on the motion of the attorney for the commonwealth, and it appearing to the court, by the testimony of witnesses this day examined on the trial of the said William Young, that he is guilty of a misdemeanour, it is ordered that he be remanded to jail, and continued in the custody of the jailor of this court till the next regular term to be holden for the trial of criminal causes, to answer an indictment then to be preferred against him.” To this order of the circuit court the prisoner excepted. The statement in the bill of exceptions was, that “the court ordered the prisoner to be remanded to jail to await the session of the next grand jury, then to be presented for a misdemeanour under the statute, Suppl. to Rev. Code, ch. 184, $ 1,* p. 243,—being of opinion that, upon the evidence adduced at the trial, he was liable to be presented under that statute.”

The trial and acquittal of Young, and his recommitment to prison, took place on the 11th of November 1842. And now he presented a petition to the general court, setting forth the order of the circuit court remanding him to jail, insisting that his imprisonment under that order was illegal, and praying that a writ of habeas corpus might be awarded to bring him before the court, and that he might thereupon be discharged out of custody.

The court awarded the habeas corpus, and at the same time, by subpoena duces tecum, caused the clerk of the circuit court to bring before them the indictment against Young, with the other original papers filed in the cause, *and the order book containing the entries of the proceedings had therein. From those papers and the order book, the foregoing state of the case has been collected. What was the testimony given against Young on his trial in the circuit court, did not in any wise appear. The depositions of the witnesses for the commonwealth upon his examination before the county court of Henrico, were to the following effect:

R. C. Page deposed that Eliza, the slave which the prisoner is accused of taking away, is the property of mrs. Sarah C. Atkinson ; that the said slave disappeared on the thursday before she was taken up and this charge preferred, and the witness next saw her at the mayor’s office. She carried away a trunk with clothing belonging to her. The prisoner was apprehended near Fredericksb urg.

John Moscow deposed that Young the prisoner came to his house on the 17th day of March last, about two o’clock, and asked permission for a lady to remain all night. He said he wanted to go to a public house in the neighbourhood to look for his partner, and accordingly went away. After some time he returned, and said he could not find his partner. He and the woman remained all night. The next morning he went off again, and after some time returned and said that they could not get in the mail train, and that they must return to Richmond. He and the woman left the house of the witness together on that morning, and the next time the witness saw them was in the mayor’s office.

Archibald Pae deposed that he saw Young and the girl together near the water station on the Richmond and Fredericksburg rail road, coming towards Richmond. Afterward he saw Young lower down tne rail road, lying in a bush. The witness asked him if he was going to Richmond? He replied, no. Near Sinton’s turnout the witness saw the girl, who said that she was free, but that she had no pass or free papers. The witness *and some others then returned in pursuit of Young: they found him, and charged him with kidnapping; when Young said he had got into a pretty fix, and that he was a ruined man.

A. S. Eewelling deposed that on the 18th day of March last he saw Young and the girl coming down the rail road. After-wards, lower down the rail road, he saw Young lying in a bush. Near Sinlon’s turnout he saw the girl, who said she was free. The witness and others then went in pursuit of Young, and he was taken into custody. Young asked witness what the law was? Witness replied, that if it could be proved he was guilty, he would be sent to the penitentiary. Young then remarked that he had got himself into a fix, that he was a ruined man ; and asked witness to let him go, saying he had a wife and child, and that he saw the girl onlj’ the day before, who represented herself to be a free indian girl.

Daniel Garrison deposed that he is the conductor of a freight train on the rail road; that near the water station, Young the prisoner asked witness to give him passage for himself and a lady to the Junction, which the witness refused. Young and the girl came from the direction of Moscow’s house, the girl about fifteen steps behind Young.

The cause was argued by W. Crump for the petitioner, and the attorney general for the commonwealth.

*

Criminal Law—Commitment—Remand after Discharge from Illegal Commitment.—In *BJxpai'teM&rx,*86 Va. 47, 9 S. E. Rep. 475, Marx v. Milstead (Va.), 9 S. E. Rep. 620, the courtsaid: “The petitioner is, therefore, entitled to be discharged from custody under the commitment of the justice; but an order will be entered commanding the officer in whose custody he is, to again take him into custody, and forthwith carry him before the justice by whom he was committed, to be further dealt with according to law. Authority for such procedure, if any thing were needed, may be found in *Young's*Case, i *Bob,*803.’*

*

Acts o£ 1828 9, ch. 21, § 1, P. 25. This statute makes it a misdemeanour punishable with imprisonment and line, to procure or furnish to a slave any pass or other writing, or in any other manner to aid him in escaping from his owner, with intent in so doing to deprive the owner of the use and service of the slave.—Note in Original Edition.

The judgment of the general court was as follows:

It seems to the court here, that the order made by the circuit superior court, committing the said William Young to the custody of the sheriff, is illegal and improper, because it does not sufficiently specify the offence with which he was charged and for *450which he was so committed. It is therefore ordered that the said William Young be discharged out of the custody of the sheriff under the sa d order of commitment.

*But it further appearing to this court, from testimony contained in the record of the proceedings against the said William Young in the said circuit court, that there is reasonable ground to suspect him of having committed a violation of the criminal law of this commonwealth, proper to be made the subject of judicial enquiry and proceeding, it is further ordered that the said sheriff do take the said William Young again into his custody, and carry him forthwith before some justice of the peace having jurisdiction of any offence involved in the act for which he was lately tried before the said circuit court (other than the specific crime of which he was acquitted upon that trial), to be dealt with by such justice of the peace according to law.

From so much of the foregoing judgment as directs the said William Young to be taken again into custody by the sheriff of Henrico, and carried before a justice of the peace, judges Homax, Heigh, Duncan, Fry and Clopton dissent; considering the present case not a proper one for the exercise of the power of this court to make such order.