Alexandria daily gazette, commercial & political. [volume] (Alexandria [Va.]) 1808-1812, 1811-11-05
NORFOLK, November |.

Case of Afyers.-The superior court for tie
county Of Norfolk, according to law, COM
menced it's session on Tuesday the 22d ult
but it was a day Of such incessant rain, that
the Judge (Nelson) did not attend. There
were eight criminal cases; but no prosecutor
for the commonwealth appeared The Judge
applied to every member OF the bar, who had
not been previously engaged as counsel for
the prisoner, (and these were Tazewe!l, lay
lor, and Writ, to draw the indictments, and
Law them before the grand jury: but every
member of the bar refused. In what manner
then the criminals could be prosecuted, SEEM
ed a matter of doubt and difficulty. A dis
tinction was drawn between a presentment
and an Indictment, and it was commended that
an Indictment could not be drawn and found
bv the grand Jury themselves; but that 1t
must be found by some third person The
Judge seemed to act upon this opinion as
correct one. There could, therefore, be no
prosecution. A gentleman, transient visi-
tc: of Norfolk, (Mr. Shelton Jones) being
a witness of this extraordinary scene, had OBJ
served, in private company, that it he was
a member of the Norfolk bar, he would not
refuse to prosecute for the commonwealth
With small variation of expression, this SEN
timent soon became publicly known in the bo-
rough /; and, upon the strength of it, the
Judge waited upon Mr.. Jones at his lodgings
md solicited him to act; he agreed to do so;
observing, however, that from the state OF his
health, & from other causes, it would be in his
power to do no more, than be the instrument
by which the forms OF the law should be COM
piled with he would draw the Indictment,
and lay it before the grand jury; he would
examine the testimony and read the law to-the
Jury. Accordingly the next day Mr. Jones
attended, but when the oath prescribed by
the act of assembly, commonly called the du-
cling law, was rendered to him, he refused
to take it. Here then again question was
made with the court, whether ANY individual
could act as attorney for the commonwealth
without taking ALL the oaths OF Office; and
the court adjourned until Monday without
coming to any decision upon the point On
that day the Judge decided that any person
appointed by the court could prefer an indict-
ment to the grand jury without taking the
oaths. This previous question was thus dis
posed of. But it was easy to ioresee, it the
prisoner was found guilty by the venire, that
errors in arrest of judgement would be Offer
cd, and that this point would be much insist
ed on by the able and ingenious counsel for the
prisoner. To obyiate, therefore, every diff
Guilty, as far as this could be done, Mr.. Tho
mas J. Parker took all the oaths prescribed by
law, and was thus, without objection, legally
qualified as prosecutor for the commonwealth.
An indictment for murder was then sent to the
grand jury, and they found tt true bill 1t
appeared. however, from the record, that the
court which sat upon the examination CT My
ers in May last, had declared that he was only
guilty of manslaughter, ard not ct mrr4er.--
1t became then a question with the court, ard
was discussed with much ability by Mr.. Tay-
lor, whether the grand jury could find an i'll
dictment for murder, when the examining
court had previously enqrired into the offence
and decided that il was not murder, but man
slaughter Upon this point the Judge, with
the consent of the prisoner, adjourned the de-
cision TO the general court for novelty and Ok.
fculty.
1t being zveH knoz,n that John Borber, he
former prosecutor .tor the ecmmonzycohh in
LIZ. LII Z Il