#### *Commonwealth v. Christian.

June Term, 1850.

i. Presentments — Commencement of Prosecution — Statute of Limitations.*—A presentment for a misdemeanor is the commencement of the prosecution; and unless the prosecution is then barred by the statute of limitations, it will not be barred by the failure to file an information or indictment upon the presentment before the time of limitation runs out.

2. Same—Objections to—Case at Bar.—A presentment for a misdemeanor does not conclude “against the peace and dignity of the Commonwealth." On this presentment process issues and the defendant appears and pleads “not guilty;” and the cause is continued. At the next term he by leave of the-Court withdraws his plea; and then moves to auash the presentment for the defect aforesaid; but the attorney for the Commonwealth suggesting that an information might be filed upon the presentment, the Court overrules the motion to quash, and on the motion of the attorney orders a rule upon the defendant to shew cause why an information should not be filed upon the presentment. Upon this rule the defendant appears and again moves to quash the presentment, on the ground: 1st. That it should have been quashed upon his former motion. 2d. Because the Court having overruled his motion to quash, the presentment was pending as a separate and distinct prosecution; and therefore leave should not be given to file the information. Sd. Because the attorney for the Commonwealth having originally elected to try the case on the presentment, by suing out process thereon to answer the presentment, was not entitled to the rule for the Information. 4th. Because the supposed offence must have been committed more than a year before granting the rule to file the information. and so was barred by the statute of limitations. Held:

1. Same-Case at Bar.—That under the facts and circumstances of the case, the act of limitations does not protect the defendant against further prosecution by information.

2. Same—Same.—That the motion of the defendant to quash the presentment should be overruled.

3. Same—Same.—That the judgment of the Court at the previous term overruling the defendant’s motion to quash the presentment, furnished no good reason against giving leave to file the information.

4. Same—Same.—That the issuing process against the defendant to answer the presentment, furnishes no reason against granting leave to file the information.

*The defendant was presented on the 8th November 1848, in the Circuit court for the county of James City and the city of Williamsburg-, for unlawfully assaulting and beating Samuel S. Griffin, on the 9th of September 1848, in the city ol Williamsburg, within the jurisdiction of the Court. And it was thereupon ordered that the defendant should be summoned to appear on the first day of the next term, to *324answer the presentment; and process was awarded accordingly. A summons accordingly issued upon this presentment, on the 30th March 1849, for the defendant to appear before the Court on the first day of the following May term to answer of and upon the said presentment. This summons being returned executed, the defendant appeared by attorney on the 5th of May 1849, and pleaded not guilty to' the presentment; and issue was thereupon joined, and the case continued till the next term. At the next term, on the 8th of November 1849, on motion of the defendant leave was given him to withdraw his plea; and he thereupon withdrew the same, and moved to quash the presentment, on the ground that the same did not conclude against the peace and dignity of the Commonwealth. And the record states that the Court being of opinion that the defendant ought not to be put upon his trial on the said presentment, because the same did not conclude, “against the peace and dignity of the Commonwealth;’ ’ and the attornej" for the Commonwealth suggesting that an information might be filed upon the presentment, and that leave would be asked for the necessary process for that purpose, the Court overruled the defendant’s motion to quash; and on motion of the Commonwealth’s attorney it was ordered that the defendant should be summoned to appear at the next term to shew cause, if any he could, why an information should not be filed against him upon the presentment. A summons was accordingly, on the 1st April 1850, issued under

that *order, to appear at the following May term, to shew cause why the information should not be filed. The defendant appeared at the May term 1850, in pursuance of the summons, and again moved the Court to quash the presentment; and shewed for cause: 1. Because at the preceding term the defendant had moved to quash the presentment because informal, defective and insufficient, which motion was overruled by the Court, notwithstanding the Court was of opinion that the presentment was informal, defective and insufficient; the Court being also of opinion that though informal, defective and insufficient, yet it ought not to be quashed, but should stand as the foundation of the rule against the defendant for an information to be filed. 2. Because the Court having overruled the defendant’s motion at the last term to quash, the presentment was still pending as a separate and distinct prosecution; and that therefore, by reason of the pendency of that other prosecution for the same supposed offence, charged in the information, leave should not be given to file the information. But on this point the Circuit court was of opinion that the whole proceedings formed but one prosecution, and not separate and distinct prosecutions. 3. Because the Commonwealth’s attorney having originally elected to try the case upon the presentment, by suing out process thereon to answer the presentment, was not entitled to the rule for the information. 4. Because the said supposed offence in the information must have been committed more than a year before granting the rule to- file the information—-and so barred by the statute of limitations : referring to 1 Rev. Code, ch. 169, *$*60.

The Circuit court thereupon adjourned to ■ this Court the following questions:

1. What judgment ought the Court to have rendered at the November term 1849, on the defendant’s motion to quash the

presentment; and what judgment *ought now to be rendered on the defendant’s motion renewed to the same effect?

2. Was the judgment of the Court at November term 1849, overruling the defendant’s motion to quash the presentment, any good and sufficient reason why the rule to file information should not have been granted; or does that judgment of the Court furnish any good reason now against giving leave to file the information?

3. Does the suing out of process on the presentment to answer the presentment, and the proceedings had on the presentment up to the granting of the rule on the 14th November 1849, furnish any cause or reason against the granting of the rule, or the filing the information?

4. Under the facts and circumstances disclosed by the record, does the act of limitations referred to and relied on by the defendant, protect him against further prosecution by information in the mode and manner proposed, for the said supposed offence in the information charged?

*

In<lictments— Commencement of the Prosecution.— The date of the finding- of an indictment Is the cornmencemenl of the prosecution, and the statute of limitations ceases to run from that date. State v. Beasly, 21 W. Va. 781, citing the principal case.

The principal case was also cited in Wilson v. Com., 87 Va. 95,12 S. E. Rep. 108. See, further, monographic *note*on “Indictments, Informations and Presentments" appended to Boyle v. Com., 14 Gratt. 674.

UEIG-H, J.,

delivered the opinion of the Court.

The Court is of opinion and doth decide, first, that under the facts and circumstances disclosed by the record, the act of limitations referred to and relied on by the defendant does not protect him against further prosecution by information in the mode and manner proposed for the said supposed offence in the said information charged. Secondly, that the motion of the defendant to quash the presentment ought to be overruled. Thirdly, that the judgment of the Court at the previous term, overruling the defendant’s motion to quash the presentment, does not furnish any good reason against giving leave to file the information against the defendant for the offence mentioned in the presentment. And, fourthly, that the suing out process on the *said presentment against the defendant to answer the presentment merely, and not to shew cause why an information thereon should not be filed, and the proceedings had on the said presentment up to the granting of the said rule, on the 14th day of November 1849, does not furnish any cause or reason against the granting of the said rule or filing of the said information. Which is ordered to be certified, &c.

After the Court had decided the case the defendant presented a ‘ petition for a rehearing.

*325The case was argued by R. T. Daniel and Bouldin, for the defendant, and the Attorney General, for the Commonwealth.

LOMAX, J. A presentment made in the ordinary way by a grand jury is regarded, in the practice at common law, as nothing more than instructions given by the grand jury to the proper officer of the Court for framing an indictment for an offence which they find to have been committed. 4 Bl. Comm. 301; 1 Chitt. Cr. L. 162. When the indictment has been prepared by him, it is submitted to them; and upon their finding it a true bill, the prosecution commences upon that indictment. The presentment merged in the indictment ceases and becomes extinct. If, however, the officer of the Court, who is the representative of the Crown, and whose concurrence and co-operation in the prosecution are always required, declines framing an indictment upon these instructions, the presentment ceases to exist for any purpose.

In the practice of Virginia the presentment has been allowed an efficacy, not known at common law in England. It has been allowed, for many purposes, to stand in the place of an indictment; or to stand as the foundation for further proceedings against the party presented. *In the revisal of 1748, p. 188, the Legislature recognized this practice of making the presentment stand in the place of an indictment, in regard to presentments for penalties not exceeding *£*5. ; and directed that such presentment need not be drawn up in other form than as the same stands presented, and thereupon the Court shall order a summons forthwith to issue, to answer the presentment at the next Court. 1 Rev. Code, 614; 12 Hen. Stat. 344. Again in 1788, in the act establishing District courts, it was declared by the Legislature, that upon presentment made by the grand jury of an offence not capital, the Court shall order the clerk to issue a summons, or other proper process, against the person presented, to appear and answer the presentment at the next Court. 12 Hen. Stat. 758; 1 Rev. Code 612. So in the gaming act, 1 Rev. Code, ch. 147, $ 21, which was passed in 1802.

The presentment, moreover, seems, in Virginia, from a very distant period, to have been made the foundation for a summons to shew cause why an information for the offence presented, should not be filed against the accused. No authority has been found in the English books that warrants such an use of the presentment. Erom what has before been stated as to the nature of a presentment in the English practice, no such use, it is supposed, could be made of it. Such a practice as an existing one in Virginia, seems to be clearly recognized in 1786, in the act directing the method of criminal proceedings against free persons, (12 Hen. Stat. 344; 1 Rev. Code, 614,) where, in regard to presentments for small penalties, it is directed that “no information shall thereupon be filed,” but a summons to answer the presentment. So in the 21st section of ch. 147, 1 Rev. Code, in gaming cases, the Legislature recognizes proceedings upon presentments by rule to shew cause why an information should not be filed. With these peculiarities as to the nature of presentments in *the Virginia practice, established by judicial and legislative authority, Mr. Robinson has laid it down, that, generally speaking, when a presentment is made, the order of the Court is, that the party be summoned to appear at the next Court to shew cause why an information should not be filed against him. But in some cases, the proceedings are of a more summary character. 3 Rob. Pr. 108.

These purposes of presentments and these proceedings upon them in our practice were, doubtless, within the view of the revisors of our new Code, when that general provision was made that prosecutions for offences against the Commonwealth, unless olherwise provided, shall be by indictment, presentment or information. 1847-8, ch. 20, $ 1. It seems clear that the presentment has in Virginia the character, in itself, of a criminal proceeding, until it is embodied and merged* in an indictment for the same offence, or in an information filed upon it; and may stand in the place of an indictment, on which the prosecution for a misdemeanor may proceed, without indictment or information, as was decided in Towles’ Case, 5 Leigh 743. Whether the process upon the presentment be a summons to answer or be a rule and summons to shew cause why an information should not be filed upon it, the presentment must be regarded as the primal accusation of the defendant, as the commencement and institution of the prosecution. The proceedings, by way of information, must equally rest upon it, as the proceedings in the other case; for the rule for the information has nothing else to rest upon but the presentment. Immediately upon the presentment, the prosecutor may take, by leave of the Court, the summons or capias to answer, or take the rule for a summons to shew cause, and although such proceedings, the summons, or the rule, should be delayed or neglected, the prosecution instituted by the presentment is not *discontinued. Eor it is enacted that no discontinuance shall take place in any criminal prosecution, by reason of the failure of the Court to award process, or to enter a continuance on the record. Sess. Acts 1847-8, p. 147. If the presentment is not discontinued, but is still pending, notwithstanding such delay or neglect, from whatever cause it may have proceeded, why shall not the presentment, whenever proceedings are to be taken upon it, be regarded in the same plight as it stood in at the regular term at which the proceedings should have been taken? If the period of the act of limitations had become complete in the interval between making the presentment and the motion at a subsequent term for process to answer the presentment, would *326the running of .the aot of limitations, in such case preclude, by its bar, the process that was moved for? Would it not be a sufficient answer to such a defence, that there was a prosecution commenced by the presentment, before there was any time that could raise the bar; that that prosecution had ever since the presentment made, been pending; and that therefore the limitation could have no application to the case? Regarding the rule for information as only a varied mode of proceeding upon the same presentment, why should not the same principles apply to exclude such bar? When the motion is made for the rule, it seems not at all more unreasonable to carry the time back to the date of the pending presentment, than it would be in case the motion were for a summons to answer the presentment; which in both cases is equally the institution of the prosecution.

If such would have been the case, had there been no process to answer the presentment, or other proceedings upon it intervening between the presentment and the subsequent term at which the motion might be made, the prosecutor should not be any more precluded in this case from having a summons to shew cause, by the proceedings *which did here intervene. The presentment had sufficiently, though not technically, described the body of the offence—the “unlawfully assaulting and beating of Samuel Griffin on the 9th September 1848, in the city of Williams-burg, and within the jurisdiction oif the Court.” No objection is seen in the completeness and sufficiency of this presentment, as a foundation for a rule for an information according to the Virginia practice, though it did omit the conclusion required by the constitution in indictments— “against the peace and dignity of the Commonwealth.” If for that or any other technical defect or informality in the presentment, regarding it as an indictment, the Commonwealth’s attorney should apprehend that the prosecution might not, perhaps, be sustainable, and the real justice of the case be sacrificed, why should he be precluded by the erroneous or doubtful step which he had at first elected to take, from resorting to another course of proceeding, which was orisrinally open to him, whereby the real justice of the prosecution would be attainable? It is not shewn that the change of the mode of proceeding could cause any surprise, or any wrong to the defendant. Every matter of fair defence and exculpation, was still fully open to him under this new phase of the prosecution. Why should not the Court allow, for the purpose of attaining substantial justice, the correction of pending proceedings in this case, that is allowable in other cases? No reason, therefore, can be perceived, why the Commonwealth’s attorney, waiving the proceedings upon the summons to answer, should not be permitted to resort to the alternative which he might have originally elected, a summons upon the presentment to shew cause why an information should not be filed. Moreover, the defendant, at his own instance, was indulged with leave to retract his plea, and the issue which was joined upon it. In doing so he derived the prosecutor of the benefits which might have resulted, in curing *the defects and informalities of the presentment, by reason of that mode of defence, and the trial and verdict which might have been obtained. The defence, instead of being thus placed upon the merits, and upon the substantial justice of the case, attempts to place itself upon mere technical exceptions, and thereby to defeat justice. Why should not the prosecutor be. allowed upon his part to vary his proceedings to meet this new exigency which the defendant has produced, by reason of an indulgence which he had asked for? After the defendant was allowed to retract his plea, the obvious justice of the case required that the prosecutor should be restored to the same situation, as if there had been no appearance and plea put in by the defendant. Nor is there any strict rule of practice which should be allowed to defeat that justice. ’ If in motions for leave to file an information, there is any likelihood of injustice or even anything inequitable being inflicted upon the defendant, the Court, in the exercise of its discretion, will always refuse the leave. But none such appears in this case.

Chichester’s Case, 1 Va. Cas. 312, is essentially different from the present case. The prosecution was there instituted by indictment, and was proceeded upon in the only way marked out in cases of indictments. The prosecution rested upon the indictment alone; and if not sustainable upon the indictment, it could not be sustained at all; and the defendant when discharged from the indictment must, of course would, be discharged from the prosecution. The indictment was for its defectiveness quashed, and thereby that prosecution terminated. It is a well settled principle, that the Court will not in any case grant an information, where the prosecutor has already preferred an indictment, and the grand jury found a true bill, although it was quashed for insufficiency, (Anon. 8 Mod. 187.) Here the prosecution was by presentment, which was not as was the *indictment, the act of the prosecutor, at least in part, but" it was the act of the grand jury. The presentment had not been quashed. It was still a pending prosecution, from which the defendant never had been discharged.

As has before been stated, the Court regards the presentment, not the time of filing the information upon it, as the date of the prosecution; and looking to that date, there is no room for the application of the statute of limitations. Acts 1847-8, ch. 20, *’i*14. And that being inapplicable to the case, no other serious objection can be urged against the information.

The petition of the defendant for a reconsideration of the judgment heretofore entered in this case is overruled.

Petition for a rehearing rejected.