The enquirer. [volume] (Richmond, Va.) 1804-1815, 1812-06-19
THE ENQUIRER.
R.cmMoMn.- JUNE 10. 1919.
FOR 7'HE ENQUIRER.
The COMMONWEALTH
JOHNsAicCAUL.

Il -! *.
The COMMONWEALTH
.3gdirst
JOHN IHcC.IUL.
The Prisoner was indicted AT the Superi
or Court of Law for Henrico County, AT tn,
April Term 1872, for Larceny Of Bank Note.
and Silver Coin from the Treasury uf thi.
Commonwealth. Afterthc Grand Jury had
found the Bills to be true, aud before the
Prisoner was arraigned, his Counsel moved
the Court to quash the Indictments, on the
ground that it did not appear from the Re-
cord of the proceedings of the Examining
Court that the Prisoner had ever been eXa-
mined touching the offence for which he
then was indicted, and that he was not re-
manded for trial for the crime of Larceny,
but for FELONY generally, which would
they said, authorize an Indictment for Muir
der. Arson. or any other species of Felony
as we'll as for Larceny. The Record of the
Examining Court was as follows -" At a
Court of Hastings called and held for the
City of Richmond at the Court-House, on
Saturday the I'd November, 1871, for the
examination of John McCaul, who stands
accused of FELoNY.-The Prisoner was
led to the Bar in custody of the SERGEANT o!
this City,nnd thereupon sundry Witnesses
being sworn and examined, the Attorney
for the Commonwealth and the Prisoner by
his Attorney fully heard, the Court is of o.
pinion that the said John McCaul is guilty
OF the offence aforesaid. Therefore it is
considered that he undergo Trial there
for before the next Superior Court of Law
for Henrico County, directed to be holden
at the Capitol i'll this city, and he is therc-
upon remapded to jail, A part of a depo-
sltion of one Witness was then spread on
the Record, and sundry witnesses we're re-
cognized to appear at the Superior Court
The Z Examining Court did not proceed to
finish the deposition of the Witness, nor to
take the dispositions of the others, because
the Attorney prosecuting for the Common
wealth i'll the Superior Court was present,
and dispensed with the performance of that
duty. k
When this Motion was made in the Cir
cult Court of Henrico, that Court called
for the Warrant issued by the Justice re-
|quiring the Justices to be summoned, and
also the Warrant of Commitment The
Warrant of Summons was not produced it
was lost or mislaid. The Warrant of Com
mitment under the hands and seals of the
Recorder and an Alderman OF the City,
bearing date the Goth October, 1911. was
produced. That Warrant was as follows
I" City of Richmond, to wit TO the keeper
of the Jail of the said City: We herewith
send YOU the body of John McCaul, taken
& bro before us, charged with having feloni-
ously broken into an apartment of the Trea-
sury Office Of this Commonwealth, 6 steal
ing e carrying azvay from thence in Bank
Notes and icftecie sim of Money 10 The a.
mount Of about seventeen thousand dollars
the tiroherty Of the Commonwealth, or Of
their Treasurer. These are therefore %
&c. concluding in. the usual form.--The
Circuit Court overruled the motion of the
prisoner, and put him onhis Trial, but on
the motion of the prisoner, reserved the
question for the decision of the General
Court: The following questions are pro-
pounded -" LIST. Ought the Order of an
Examining Court, remanding prisoner for
Trial to the superior Court of Law. express
ly to shew for what species of Felony the
prisoner is so remanded ?" q I'd. If the
said Order OF the Examining Court re-
mauds a prisoner for trial for FELoNv ge-
morally, and the Grand-Jury find Bill of
Indictment. for Larceny, ought the Court
on Motion to quash the. SAID Indictment,
if it appear by the Warrant Of Commit
ment, the Warrant Of Summons, or ether
evidence dehors the said Order, that
the prisoner was in fact examined and re-
manded for the ofence of Larceny?"
The question thus adjourned by the Cir
cult Court OF Hsnrco, was argued by
Messrs. Writ, Bacchus. and Hort, for the
prisoner, and MIR. Nicholas. Attorney Ge-
neral for the Commonwealth, before the
General Court, consisting of Judges Nelson,
White, Stuart, Holmes, Brockenbrough,
Semple, Johnston, Smith and r andoiph, and
the presiding Judge delivered the opinion of
the Court to the following effect" That it
ought to appear in the Record of the pro-
ceedings OF the Examining Court for what
FACT the prisoner has been remanded, and
that a Superior Court OF Law hath a right
to look into the Warrant summoning the
Magistrates, which is part of the Record
but not into the Warrant of Commitment.
that being no part of the Record -" That
(although in general whether the Court on
motion of the prisoner Will quash an Indict-
ment rests in the sound discretion of the
Court in this case the Court ought to have
quashed the Indictment, if the FACT could
not be ascertainsd without looking into tes
timony dchors, which is not allowable: that
in those cases in which the quashing rests
in the discretion of the Court, and the Court
may quash or put the party o plead, if the
Court thinks the fact if pleaded would avail
the prisoner. the Court ought to advise him
to plead the same"
Another Question was also adjourned by
the Circuit Court, which was argued bvtbe
same Counsel, and decided by the same
Court. The prisoner was convicted of the
crime Fer which he was indicted. and his
Counsel moved to set aside the Verd ct on
the ground of a separation of two of the
Iurymen at different times from tlreir feI
lows. The Trial had occupied four DAYS.
On this motion being made, the alIidayits
OF snndry Witnesses were taken, and the
Circuit (uurt with rho cc,,eo,,, : \, -.