Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1821-11-13

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RICHMOND, NOVEMBER IS, I8sI.
MIR. LlTHGOW'S CASE.
On FRIDAY, Judge Brockenhrough pro-
nounced the following decision on the motion
ofthe Prisoners counsel to quash the ndict-
ment:
The COMMONWEALTH VS.. LIrmeow.
CPnton % me Couif on the motion 10 guJSh Ike
indictment.
The objection which is now made To this
indictment is, not that there is any defect or
mperiecnon IN any one of the six counts, nor
thattoo many offences are blended in the same
indictment, but that the prisoner has never
been examined In the manner prescribed by
law by the court of the Corporation where
the offence was committed" as to the offences
now charged IN the four last counts of the in
dictment The act Of Assembly declares that
he shall not be tried here, until he has been
SO examined.
am perfectly satisfied with the counts
themselves they plainly set forth certain fc-
lonious offences against the prisoner; too many
offences are not joinedt together in the indict-
ment, Tor 1t is perfectly legal to unite count
Tor einbezzng under the statute, with count
Tor larceny ut common law i; and n charge of
embezzhnS money and bank notes may be
made IN the same count, with that of cmbeZ-
cling check, or any other security or facility
| specified in the statute.
This is not the point now TO be decided
Has he been examined for the offence of en-
peZIiiiS Dank notes, or money, or for that of
stealing check, bank notes, or money /?
adopt the argument used by Mr.. Mich
oas, that if it appear by the record of the ex-
aiming court for what fact the prisoner is
remanded, he may he here indicted and tri-
ca for any offence embraced by that )act.-
lhat position Is supported by the decisions in
Myerss and McCaul's cases. Under these
decisions, should not hesitate TO say that
the prisoner might now be indicted for the
larceny OLA check THAT being made a subject
OF larceny by one statute) drawn by Abbatt
Co., as well as for the embeZzling of the
check, which is made punishable as felony
| by another statute because the criminal fact
III both cases is the same, namely, the fclo-
NOUS taking and carrying away the check, the
only difference being that in the one case the.
check was taken from the possession of ano-
ther, whereas III the other the prisoner had
the possession, by virtue Of the trust and con-
| hdence repOsed in him. The nice tliscrimi-
nation In the two cases need not be enquircd
INTO by the examining court, because the of
fence in each case is a felony, and NAV be
lkcned to the case of murder aud mansaugl-
ter, IN which the fact being the same, name
ly, the feionious killing, the examining
court have no authority To discriminate, but
must remand for the trial ofthe feonolis hom-
icide, land If they do undertake to discriminate
and remand for manslaughter it will he disre-
garded, and the indictment NAV proceed for
murder.
| The question then is, has the prisoner been
examined for the fact of embezzng, or steal
ing the money, and bank notes of the Far
mers' Bank, for which he is indicted in the
third, fourth and fifth counts? The court
does not require that the record ofthe exam
ming court should be as technical as an indict-
ment, but 1t is requisite that it should sci
forth the fact for which he is examined IL
terms sufficiently plain to enable the superior
court to Judge whether he is indicted for tn,
same Thing. Now the fact Of embezzling, OIL
stealing n check, cannot be construed to mean
the factof embcZzlng, or stealing a bank note
or money. 1t therefore does not appear from
the record that he has ever been examined
or remanded here, for that fact and conse
quently he cannot as yet be indicted for tina
fact.
4 But then it is contended that this is not tn,
proper mode by which the objection is to b.
made. What other mode is proper TIL
prisoner ought not to demur, because if thu
counts be well drawn, and set forth the often
ces in substance and in proper form, he admit
the truth thereof, and Judgment must b.
rendered against him : he cannot after convic
t ton move an arrest ofiudgment, as was dc
clded by the general court last Nov term ii
thecase OF VIM. Angel on an application for
, writ OF error to a judgement of this court.
hepleads notguilty and puts himself on his coun
try on that plea, he cannot avail himself O
this defence, because, it is not within the is
. SUE. If he goes to trial on this Indictment, tn
court cannot exclude every evidence going t.
prove that he has embezZled, or stolen checks
money, bank notes, or any thing else charged
e In the indictment. In vain would he on hi
trial present the record of the examining court
and say that he had not been examined 70
these facts I; the evidence would be excluded
tits true, that il there be five defective counts
and one perfect count, the jury may be in
structed to disregard the defective counts, ant
they may convict him on the perfect count
and Judgment will follow. But that is no
the objection 1t IS not pretended that either @
I these counts is defective, or imperfect. So toe
the evidence on the trial supports only on
count, the petit jury may acquit the prisone
on those counts not supported by the proc
and convict him on the other, and the cour
will pronounce judgment OH that count BIZ
the jury can never hear the proceeding of tn
examining court, and therefore if the eyidenc
supports all ofthe counts they must find vel
/; diet against him upon all of them, although
truth he has never been examined as to In
: facts contained in some of them. There is the
!, no time at which he can avail himself of th
: objection but this precise time, and no mod
except by plea in abatement, or by motto
a to quash. AS to the latter. McCaul's case
! full authority. Whether the court will sustai
\ a motion to quash, rests in its sound discretion