Alexandria daily gazette, commercial & political. [volume] (Alexandria [Va.]) 1808-1812, 1811-11-26

the Examining Court of Murder and remand
ef, TO be tried before the Superior Sourt iof
Mapslaughter on account oil the same noihi-
eide. but indicted in the said Superior court
for Murder on account of the same Homicide,
Is entitled to be bailed by sucn Superior
Court after the discharge OF the Grand jury
who found no other Indictment against NM
And any and all the other questions OF Law
arising upon the pleadlngs-
The Court having matureiy consicered the
said questions of Law after the Argument OF
the Attorney General and Council tor the
Prisoner; are unanimously OF opinion and DO
decide:
LIST. That a Court of Examination have not
power to acqu;ta person charged before them
with Murder, of the Murder with which he
stands so charged, and to remand him to be
tried for MansIauehter in the Superior Court
on account of the same Homicide.
Secondly. 1t is further the unanimous OPT
Mon of the court, that the Examining Court
being legally incompetent to control the pro-
ceeding of the Superior Court upon the case
of the Prisoner remanded by the Examining
Court to the Superior Court for telonious
Homicide, it was lawful to indict the Prison
er tor Murder, notwithstanding the discrimi-
nation bv the Examining Court as to the
grade of Homicide, and being so indicted, the
said Prisoner was not cxtitled to be bailed on
the ground of No Indictment being found a
eainst him for the offence of Manslaughter.
The Prisoner having pleaded three pleas
in bar by the leave of the court in substance
as follows:
Al cha with
the Murder of Richard Bowden, examined for
the same before court legally constituted
and found not guilty of the Murder aud that
he ought not to be remanded to the Superior
Court for trial therefor.
3D. That the Prisoner was charged with
the Murder OF Richard Bowden, examined for
the same before Court legally constituted,
and found not guilty of the said murder, and
that he ought not to be remandcd to the Su-
perIor Court therefor, but ought to be tried
for the offence of Manslaughter in the Supe
rior Court OF Law to be held at Portsmouth,
&c.
3D. That he was duly charged, examined *
tried for the murder Of Richard Bowden be-
fore a court legally constituted, and upon this
trial and examination was duly and kgaHy &C
quilted of the said Murder and Felony with
which be stood charged and was adjudged by
the court not guilty thereof-To each of which
pleas, the Attorney for the Commonwealth
demurred generally and the Prisoner filed
ioinder thereto, and the Matters of Law ari-
sing thereupon having been duly considered;
the Court doth decide:
That the first plea affording matter in bar
of the Indictment, and well-pleaded, the de-
murrer thereto ought to be over-ruled, and
the plea held good.
That the second plea stating proceeding
by the Examining Court which the Court has
decided in answer to the first question to be
one exceeding the jurisdiction of that Court,
docs not afford matter in bar of the lndict-
mcnt and therefore a, to that plea the demur,
rer ought to be held good and the plea over
ruled
That the third plea afording matter in bar
of the Indictment and well pleaded ought tic
be held good and the Demurrer thereto over
rulet-Which is ordered TO be certified to
the Superior Court Of Norfolk County.
From this order it appears, that the Coun-
sci for Myers have thus far substantially at
tanned their object, but through the mispIead-
ings of the Attorney for the Commonwealth
who served in the court below. The counsel
for the prisoner, had filed pleas to which
the attorney put in what they call, general
demurrer. Now, demurrer always admits
TIC facts which are stated by the opposite
party to be true. One Of these pleas, for in
stance, stated, that Myers had been duly ex-
amined, and acquitted of the Murder and Fe-
lony. The Demurrer thus admitted the very
fact which was at issue.
It is impossible as yet positively to say in
what way this case will finally end. Judge
White at the close of his opinion, added, that
there was one point which the Court had not
vet undertaken to decide; VIZ. whether the
Commonwealth could mend its pleadings,
that is, 7vithdra7o its demurrer sc. &c. This
point was waved by the bar, and it was un-
derstood to be one which would fairly lay over
for the court below. 1t was also suggested,
that the Counsel for Myers would move two
of the Circuit Judges Nelson and Semple
were mentioned, } for writ of Habeas CORPUS
to bring Myers before them, and attempt to