#### Boyd v. The Commonwealth.

June, 1842.

Larceny*—Indictment—Bank Notes.—Indictment for larceny of checks, bank notes, and United States treasury notes.

Same—Examining Court—Warrant Convening Court— Sufficiency of—Sunday.—By warrant dated the 17th, which is thursday, a court for the examination of a prisoner charged with felony is appointed to be held on the 22d, and is held accordingly; the court being thus held on the fifth day after the date of the warrant, and one of the intervening days being Sunday: Held, the warrant and examination are sufficient.

Same—Same—Same—Same.—Warrant directs a court to he summoned for the examination of a prisoner charged with feloniously stealing “sundry checks drawn by sundry individuals upon the Exchange bank at JST., and sundry other checks drawn in like manner upon the Farmers bank at N., also treasury notes and other bank notes, the whole of which checks, treasury notes and bank notes amount to 2824 dollars, of the value of 2324 dollars, the property of J. S. M.;” record of examining court states, that prisoner was examined upon a. charge of feloniously stealing “divers goods and chattels, the property of J. S. M.”—Held, the warrant and examination are sufficient, and an indictment for the larceny of divers checks, bank notes, and United States treasury notes, the property of J. S. M., is well supported thereby.

By warrant under the hand and seal of a justice of the peace for Elizabeth City county, dated the 17th of March 1842, reciting' that William Boyd was that day committed to the jail of the county by warrant from the said justice, for having, on the 16th day of March 1842, feloniously taken, stolen and carried away from the *'house of John S. Moody, within the jurisdiction of the county court, “sundry checks drawn by sundry individuals upon the Exchange bank at Norfolk, and sundry other checks drawn in like manner upon the Farmers bank at Norfolk, for sundry other sums of money, also treasury notes and other bank notes, the whole of which checks, treasury notes and bank notes amount to the sum of 2324 dollars and 14 cents, of the value of 2324 dollars and 14 cents, the property of John S. Moody,”—the sheriff was required to summon the justice of the county to hold a. court, on the 22d of March 1842, for the examination of the fact with which the said William Boyd stood charged.

A court was accordingly held on the 22d of March, for the examination of the said William Boyd, “charged” (the record states) “with the felonious stealing of divers goods and chattels, the property of John S. Moody.” The examining court remanded him to be tried, “for the said supposed fact,” before the circuit superior court of the county.

In the circuit superior court, at April term 1842, the grand jury found a bill of indictment against Boyd, for the larcen3r of divers checks, bank notes, and United States treasury notes, the property of John S. Moody. The indictment contained twenty counts. In several of them, charging the larceny of different checks, the instrument was merely described as a check *430for the payment of a certain sum, and of the value of that sum. Other counts, in addition to the amount and value of the check, set forth the date and number of it, by whom drawn and in whose favour, the particular bank (Exchange of Earmers bank at Norfolk) on which drawn, and, where made payable to order, the endorsement by the payee. One count charged the larceny of three checks, another of two, and another of two paper bills of credit issued under the authority of the United States, commonly called treasury notes; the court in each of *these cases stating the aggregate amount and value of all the checks or treasury notes therein mentioned, but not the separate amount or value of each, or of any one. The 17th count charged the larceny of a promissory note for the payment, and of the value, of 50 dollars, commonly called a treasury note: to which description the 18th count added, that the note was “made by the United States.” The 19th count differed from the 17th, and the 20th from the 18th, only in terming.the instrument charged to be stolen a note, instead of a promissory note.

Before pleading, the prisoner produced the record of the examining court, including the warrant for convening the same, and moved the circuit court to quash the indictment for the following reasons: 1. It does not sufficiently appear from the proceedings of the examining Court, that the prisoner was examined according to law for the offence specified in the said indict-, ment or any count thereof. 2. The court of the justice was held for the examination of the prisoner for feloniously stealing “divers goods and chattels,” the property of John S. Moody; and no such offence is charged in the indictment. 3. There were not five days between the date of the warrant, and the day on which the court of examination was thereby appointed to be held, and was actually held. In connexion with this ground of the motion to quash the indictment, it was proved to the circuit court that the 17th of March 1842, the date of the warrant, was thursday, and consequently that a Sunday intervened between that day and the day of holding the court of examination. 4. Eor other reasons apparent on the face of the indictment and the proceedings of the examining court.

The circuit court overruled the motion to quash the indictment, and the prisoner excepted,.setting forth in his bill of exceptions the warrant for convening the court of examination, the proceedings of that court, and *the grounds of his .motion as above detailed. He then moved to quash the 17th, 18th, 19th and 20th counts of the indictment; which motion was also overruled. Whereupon he pleaded not guilty, and a jury being impanelled for the trial, found him “guilty1 of the charges preferred against him in the indictment,” and ascertained the term of his imprisonmeni in the penitentiary to be two years. The circuit court rendered judgment accordingly. And now he applied by petition to this court for a writ of error to the judgment.

R. H. Armistead, for the petitioner,

relied upon the second and third grounds above assigned for quashing the indictment. He adverted to the terms of the act 1 Rev. Code, ch. 169, *l*1, p. 598, providing that the day to be appointed in the warrant, for holding the court of examination, shall be “not less than five nor more than ten days after the date thereof;” and suggested that the court, in Thompson v. Commonwealth, 2 Va. Cas. 135, must have overlooked the language of the enactment.

On the question .whether an intervening Sunday is to be reckoned in the computation of the five days, he referred to the cases cited in Tate’s Dig., 2d edi., p. 250, note 4.

*

See monographic *note*on “Larceny" appended to Johnson v. Com., 24 Gratt. 555.

PER CURIAM.

Writ of error denied.