Chap. 118.—An ACT to revise and amend the Criminal Proeedure.
Paseed April 27, 1867.

Be it enacted by the gencral assembly, That chapters two
hundred and five and two hundred and twelve of the Code,
edition of eighteen hundred and sixty, be repealed, and that
chapters two hundred and one, two hundred and two, two
hundred and three, two hundred and four, two hundred and
six, two hundred ‘and seven, two hundred and eight, two
hundred and nine, two hundred and ten and two hundred
ind eleven, be amended and re-enacted so as to read as fol-
OWS;
1. Ey ery judge throuchout the state, and everp justice and
commissioner in chancery, within his county or corporation,
shall be a conservator of the peace, and may require from
persons not of good fame, security for their good behavior
for a term not exceeding one year,

2. If complaint be made to any such conservator that
there is good cause to fear that a person intends to commit
an offence avainst the person or property of another, he shall
examine on oath the cemplainant, and any witnesses who
may be produced, reduce the complaint to writing, and cause
it to be signed by the complainant.

3. If it appear proper, such consgrvator shall issue a war-
rant reciting the complaint, and requiring the person com-
plained of forthwith to be apprehended and brought before
him or some other conservator.

4. When such person appears, if the conservator, on hear-
ing the parties, consider that there is not good cause for the
complaint, he shall discharge the said person, and may give
judgment in his favor against the complainant for his costs.
If he consider that there is good cause therefor, he may re-
quire a recognizance of the person against whom it is, and
vive judgment avainst him for the costs of the prosecution,
or any part thereof; and unless such recognizance be given.
he shall commit him to jail by a warrant, stating the sum and
time in and for which the recognizance is directed. The per-
son giving judgment under this section for costs, may issue
a writ of ficri facias thereon, if an appeal be not allowed; and
proceedings thereupon may be according to the ninth and
eleventh sections of chapter one hundred and filty.

5. A person from whom such recognizance is required,
may, on giving it, appeal to the court of the county or cor-
poration; in such case, the officer from whose judgment the
appeal is taken, shall recognize such of the witnesses as he
thinks proper.

G. The court may dismiss the complaint. or affirm the judg-
ment, and make what order it sees fit as to the costs. If it
award costs avainst the appellant, the recognizance which he
may have given shall stand as a security therefor. When
there is a failure to prosecute the ap peal, such recognizance
shall remain in foree, although there be no order of atlirm-
ance. On any appeal, the court may require of the appellant
anew recognizance if it sce fit.

¢«. Any person committed to jail under this chapter, may
be discharged by the county or corporation court on such
terms as it may deem reasonable. .

& If a person go armed with a deadly or dangcrous
weapon, without reasonable cause to fear violence to his per
son, family or property, he may be required to give a recog-
nance, with the right of appeal, as before provided, and like
proceedings shall be had on such appeal.

9. Ifa person, in the presence of a court or a conservator
of the peace, make an affray, or threaten to kill or beat
another, or to commit violence against his person or property,
or contend with angry words, to the disturbance of the peace,
he may, without process or further proof, be required to give
a recognizance.

j

Persons suspected of retailing liquors without license.

10. If any justice suspect any person of selling, by retail,
wine or ardent spirits, or a mixture thereof, contrary to law,
he shall summon the person, angl such witnesses as he may
think proper, to appear before him; and upon the persons
appearing, or failing to appear, if the justice, on examining
the witnesses on oath, find sufficient cause, he shall direct the
commonwealth’s attorngy for the coust of his county or cor-
poration, to institute sWrocecution against such person, and
shall recognize the material witnesses, or cause them to be
summoned, to appear at the next term of the said court.
Such justice may also require the person suspected, to enter
into a recognizance to keep.the peace and be of good be-
havior for a time not exceeding one year. If such. recogni-
zance be given, the condition thereof shall be deemed to be
broken, if, during the period for which it is given, such per-
son shall sell, by retail, wine or ardent spirits, or a mixture
thereof, contrary to law.

Snecial county police.

11. The county courts of the’several counties and corpora-
tions of this commonwealth may, if they deem it advisable,
after being summoned for that purpose, and a majority con-
curring therein, appoint a special police force, to consist of
not less than twelve suitable and diserect persons, who shall
serve as such until others are ap potaued § in their place by the
court.

12. The court may at any time remove any or all of such
police, and appoint others, and may fill any vacancy that may
occur in said police force, or may add to the number thereto-
tore appointed.

3. The renroval from the county in which he Was ap-
pointed shall vacate the office of such person so appointed,
or he may resign or decline the appointment, and thereupon
the vacancy shall he filled by the court.

14. The jurisdiction and authority of said police shall ex-
tend no further than the limits of the county in which they
are appointed; and a copy of the order of appointment made
by the court, attested by the clerk of such court, shall in all
cases be received as evidence of their official character.

16. It shall be the duty of said special police so appointed,
and they are hereby authorized to apprehend and convey be-
fore a justice of the peace, to be dealt with according to law,
all persons whom they may be, by the warrant of a justice.
directed to apprehend, or whom they have cause to suspect
have violated the laws of the state. or intend so to do; and
they shall be authorized to search for stolen property at any
time, upon the application of any one who will make aftida-
vits before the captain, or any member of such police, or a
justice of the peace, that he has lost property of a certaia
description, and that he has reason to suspect that it is con-
eealed in the house or on the premises of a certain named
person or persons.

16. In all cases arising under this act, the justice before
whom the person or persons so arrested shall be brought.
shall examine into the case and dispose of the same aceord-
ing to law; and if he thinkthe person so apprehended should
be bound over to keep the peace and be of good behavior,
he shall order him or her to enter into recognizance to that
effect, in the manner now prescribed by law.

17. Before entering upon the digcharge of their duties,
the persons so appointed, in additifM to an oath to be faith-
ful and true to this commonwealth, and to support the con-
stitution thereof, shall take an oath faithfully to discharve
their duties.

18. The county courts may, if they see proper, allow com-
pensation to said police, or any expense incurred in the dis-
charge of their duties, to be paid out of the county levy.

19. The said officer or oflicers shall have power and au-
thority to require any person to aid In making such arrest,
as sheriffs are now authorized by law.

Pole regulations for watering places.

20. The county court, or the jude of the circuit court of
any county in which any watering place may be located, may,
upon the application of the owners or proprietors of such
watering place, appoint some citizen of the commonwealth
conservator of the peace, whose jurisdiction shall extend over
the grounds attached to such watering place, within such
limits as shall be prescribed in the order appointing such con-
servator.

21. Such conservator shall have power to prescribe sucn
police regulations, not inconsistent with the laws of the com-
wealth, as may be expedient for the preservation of the peace
and good order of such watering place, and: shall keep such
regulations posted at some public place within its jurisdic:
tion,

22, Such conservator of the peace shall hold his office for
one year from the time of his appointment, and within the
limits prescribed for his jurisdiction, shall be a conservator
of the peace; and the violation of any regulation prescribed
and published j in the manner required by” the preceding sec-
tion, shall be held to be sufficient cause for recognizing the
violator to answer the same, and to be of good behavior, or
to keep the peace, as may seem proper.
23. snd such court shall have power and is hereby au-
thorized to appoint some citizen a policeman, whose power
and duties shall be the same as those of a constable, except
that he shall not have authority to execute civil process. Be-
fore the said conservator of the peace and policeman shall
perform the duties of their respective oftices, they shall take
the oaths prescribed by law, before the court making the ap-
pointment, or before a justice of the peace.

CHAPTER CCII.

ON CORONER'S INQUESTs.

lL. Upon notice of a death supposed to have been caused
by violence, and not by casualty, the coroner of the city of
Richmond, if the dead body be in the penitentiary, and in
any other case, the coroner of the county or corporation in
which the dead body is, shall issne a warrant to the following

effect: “ County (or corporation) of , to wit: To
the sheriff (or sergeant) or any constable of county
(or the corporation of ): You are ‘required to

summon twelve jurors of the county (or corporation) of
, to attend before me, a coroner of said county

(or corporation), at the dwelling house of , (or
at a place called ). in said county (or corpora-
tion), at the hour of , to inquire upon the view
of the body of (or a person unknown), there
lying dead, when, how and by what means he came to his
death. Given under my hand this day of

Coroner.”

2. The coroner may issue a summons, directed like the
warrant, commanding the officer to summon witnesses to
attend before him at such time and place as he mav direct.

3., Any such officer to whom the warrant or summons may
be delivered, shall forthwith execute it. and make return
thereof to the coroner at the time and pince named therein;
if he fail so to execute and return the same, he shall forteit
twenty dollars; and if any person summoned as a juror, fail
to attend as required, without sufficient excuse, be shall for-
feit ten dollars.

4. If twelve jurors do not attend, the coroner may require
the officer, or any other person, to summon others. When
the full number of twelve have appeared, the coroner, in view
of the body, shail administer to them the fullowiny oath:
“You swear that you will diligently inquire and true pre-
sentment make, when, how and by what means, the person
whose body here lies dead came to his death, and return a
true inquest theree!) upon your own knowledyve and the evi-
dence betore you. So help you God.”

9. Witnesses on whom the stunmons before mentioned is
served, may be compelled by the coroner to attend and give
evidence, and sliall be liable in hke manner as if the summons
had been issued by a justice in a criminal case. They shall
be sworn by the coroner before giving evidence to the in-
quest, and their evidence shall be reduced to writing by him,
or under his direction, and subscribed by them respectively.

6. The jury, after hearing the evidence and making all
needful inquiries, shall deliver to the coroner their inguisi-
tion, wherein they shall state the name of the deceased (if it
be known), the material circumstances attending his death,
and if they find that he came to his death by unlawtul vio-
lence, who were cuilty thereof, either as principal or acces-
sory. The inquisition may be to the following effect: “ County

(or corporation) of , to wit: an inquisition taken
at , In the county (or corporation) of , on
the day of , in the year , betore , & coro-
ner of the said county.(or corporation), upon the view of the
body of , (or a person unknown) there lying dead, the
jurors sworn to inquire when, how and by what means the
gail (or person) came to his death, upon their oaths do

say: (Then insert when, how and by what person, means,
weapon or instrument he was killed, and any material cir-
cumstances.) In testimony whereof, the said coroner and
jurors have hereto set their hands.”

7. The coroner shall return to his county or corporation
court the inquisition, written testimony and recognizances by
him taken; and if the jury find that murder, manslaughter
or assault had been committed on the deceased, shall require
sach witnesses as he thinks proper, to give a recognizance to
appear and testify at such court when it sits for the trial of
the accused.

&. Ifa person charged with the offence, by the inquest be
not in custody, the coroner may, tor his apprehension, issue
process in the same manner as a justice; it shall be returna-
ble before a justice, and proceeded on as directed by chapter
two hundred and four.

9% If the dead person be a stranger, whether an inquest be
taken or the coroner called on to view the body thinks it un-
necessary to have an inquest, he shall cause the body to be
decently buried. If the coroner certify that he believes the
deceased has not sufficient estate in this state to pay the ex-
penses of the burial, the coroner's fees and the expenses of
the inquest, if one was taken, they shall, when allowed by
the court of the coroner's county or corporation, be out of
the treasury. In other cases, all such charees shall be paid
out of the estate of the deceased, or if the estate be insuf-
ficient, by the county or corporation aforesaid, unless the
inquest be on the body of a convict in the penitentiary; in
which case the same shall be paid out of the treasury, after
being allowed by the executive. |

10. In taking an inquest, the coroner may require one or
more physicians to attend and give information and render
services incident to his profession, useful to the jury; and
reasonable compensation therefor shall be allowed as part of
the cost of the inquest.

11. If a coroner fail to perform any duty herein required
of him, he shall forfeit one hundred dollars. In case of such
failure, or if there be no coroner authorized to act; or none
in the neighborhood in which the dead body may be found,
a justice of the court by which the nomination of a coroner
:o authorized was or micht be made, may act as coroner, and
be entitled to the same fees and be sublect-to the same pen-
altics. :

12. Under this chapter, proceedings may be had for sum-
moning a jury and witnesses, and an inquest may be held as
well on Sunday as on any other day.

CHAPTER CCill.
Of search warrants,

1. If there be complaint. on oath, that personal property
has been stolen, embezzled or obtained by false pretences,
and that it is believed to be concealed in a particular house
or other place, the justice or justices to Whom complaint 1s
made, if satistied that there is reasonable cause for such
belief, hs ull issue a warrant to search such place fer the pro-
perty.

2. On tike complaint, on oath, according to the nature of
the case, the justice or justices to whom it is made, if satisted
that there is reasonable cause therefor, shall issue a warrant
to search specified places for the following things :

First—Counterfeit or spurious coin, forged bank notes and
other Instruments or writing, or any tools. machines or mate-
riats for making them. .

Secondly—Any book or other thing containing obscene
lanensege, or any print, pieture, fignre or description mani-
te stly tendine to corrupt the morals of youth, and intended
to be sold, loaned. circulated ov distributed, or to be intro-
dnueed into a family. school or place of education.

Thirdly—Lottery tickets, or materials unlawfully made,
provided or proe ured, for drawing a lotiery.

Fourthly —Any gaming ap paratas or implements used, or
kay and provited to be nsed, in unlawfd gaming, or in any
place resorted to for unlaw ful vamine.

3. Every search warrant shail be ‘directed to the sheriff,
sergeant or a constable of the county or corporation mn which
the place to be searched may he, and shall command him to
search the piace designated, either in the day or night, and
seize such stoien property or other thingss nil bring tiie
same and the persons in whose possession they may be found,
before a justice or court having cognizance of the case,

4. Lf any search warrant be exeented, by the seizure of
property or of any other of the things aforesaid, the same
shall be safwly kept by the direction of such justice or court,
to be used in evidence; and as soon as may be afterwards,
such stolen or embezzled property shall be restored to its
owner, and the other things specitied aforesaid, burnt or
otherwise destroyed, under such direction.

f

Process of arrest; hou issued and executed,

1, A judge of a circuit court, or a justice may, in vacea-
tion, as well as in term time, issue process for the apprehen-
sion of a person charged with an offence.

2, On complaint to any such officer, of a criminal offence,
he shall examine on oath the complainant and any other wit-
nesses; and if he sees good reason to ‘believe that an offence
has been committed, shall issue his warrant, reciting the ae-
cusation and requiring the person accused to be arrested and
brought before a justice of the county or corporation; and,
in the same warrant, may require the officer to whom it Is
directed, to summon such witnesses as shall be therein named,
to appear and give evidence on the examination.

3. Ifa person charged with an oftence shall, after or at
the time the warrant is issued for his apprehension, escape
from or be out of the county or corporation in which the of-
fence is alleged to have been committed, the officer to whom
the warrant is directed, may pursue and apprehend him anvy-
where in the state; or a justice of a county or corporation
other than that 4n which it was issued, on being satisfied of
the genuineness thereof, may endorse thereon his name and
othcial character, and such endorsement shall operate as a
direction of the warrant to an oflicer of such justice’s county
or corporation. ,

4. An officer arresting a person under a warrant for au
offence, shall bring such person before and return such war-
rant to a justice of the county or corporation in which the
warrant issued,unless such person be let to bail as herein-
after mentioned, or it be otherwise provided.

® Where a warrant is issued ina county or corporation
other than that in which the charge ouclt to be es. the
justice before whom the accused is brougit. sinil, wir:

rant, commit him to an officer, that he may, and vc ‘ofticer

shall, carry him to the county or corporation in which the
trial should be, and there shall take him before and return
such warrant.to.a justice thereof.

Bail, .

6. A justice before whom a person is charged with an of:
fence not punishable with death or confinement én the pen
tentiary, or of which, if it be so punishable. only a light sus-
picion of guilt falls on him, may, pending the examination
before him, or upon committing such person for trial, admit
him to bail. If the offence be eo punishable, and there 1s
good cause to believe such person guilty, he shall not be let
to bail by a justice; nor shall any person in jail, under an or-
der of commitment, be admitted to bail by a justice in a less
sum than was required by such order; but a court in which
any person is held and to be tried for a criminal offence, or
any judge of a circuit court, may admit such person to bail
before conviction.

7. A person charged with an offence not so punishable,
and to be carried to another county or corporation, shall, if
he request it in the county or corporation wherein he is
arrested, be brought before a justice thereof. In such or any
case of a person charged with an offence not so punishable,
it he desire it, a court, judge or justice before whom he is
brought may, without trial or examination, let him to bail,
upon taking a recognizance for lis appearance before the

court having cognizance of the case, the fact of taking which
shall be certified by the court or officer taking it, upon the
warrant under which such person was arr ested : and the war-
rant and recognizance shall be returned forthwith to the clerk
of the court betore which the accused 1s to appear; to which
court the judge or justice who issued such warrant shall
recoynize or cause to be summoned such witnesses as he may
think proper.

8. In all cases in which recognizances at the suit of the
commonwealth may have heen, or shall hereafter be entered
into, it shall be the duty of the clerk of the court in which,
or in the clerk’s office of which any recognizance may be
filed, to deliver to the bail, on his applying therefor, a bail
piece, in substance as follows , viz: “A B, of the county (or

corporation) of , 18 delivered to bail unto C D, of
the county (or corporation) of at the suit of the
commonwealth. Given under my hand this day of ;
in the year a '

Examination or trial before justice.

9. A justice may adjourn an examination or trial pending
before him, not exceeding ten days at one time, without the con-
sent of the accused, and to any place in the county or corpora-
tion. In such case, if the accused be charged with an offence
punishable with death or confinement in the penitentiary, he
shall be committed to jail; otherwise, he may be recognized
for his appearance at the time appointed tor such further ex-
amination or trial, or for want of bail be committed to jail.

10. If the person so recognized do not appear at the time
so Appointed, the said justice shall certify the recognizance
and the tact of such default to the county or corporation
court. at its next term, and like proceedings shall be had
thereon as on breach of a recognizance for appearance before
such court.

Il. If the accused is committed, it shall be by an order of
the justice, stating that he is committed for further examina-
tion, on a day specified in the order; and on that day he may
be brought ‘before the justice, by his verbal or der to the
oflicer by whom he was committed, or by a written order to
a different person.

12. The justice before whom any person is brought for an
offence, shall, as soon as may be, In the presence of such
person, examine on oath the witnesses for and against him,
and he may be assisted by counsel.

13. While a witness is under such examination, all other
Witnesses may, by order of the justice, be excluded from the
place of examination, and Kept separate from each other.

14. When the justice deems it proper, the testimony of
the witnesses may be reduced to writing; and the same, if
required by him, shall be signed by them respectively.

15. The Justice shall discharge the avcused, if he consider
that there is not significant cause for charging him with the
offence; or shall commit him to jail if he consider that there
is such cause, or let him to bail under the sixth section. He
shall require recognizance, with or without sureties, as he
deems proper from all material witnesses against the accused.

16, When a justice so considers that there is sufficient
cause for charging the accused with the offence, unless it be
a case Wherein it ts otherwise specially provided, the com-
mitment shall be for trial, and the recognizance be for ap-
pearance, in the county or corporation court at such time as
the case can be proce eded in betore such court. The justice
shall return to the clerk of such court, as soon as may be, a
certificate of the nature of the offence, showing whether the
accused was committed or recoenized therefor; and the
clerk, as soon as may be, shall intorm the attorney for the
commonwealth in said court of such certificate.

Iv. Every examination and recognizance taken under this
chapter shall, by the judge or justice taking it, be certified to
the clerk of the court before which the ie arty charged is to
appear, on or before the tirst day of its session. Tf he fail, he
may be compelled to do so, by attachment, as for a contempt.

IX, JA justice to whom compl: unt Is made, or before whom
a prisoner is brought, may associate with himself one or more
justices of the county or corporation, and they may together
exccute the powers and duties before mentioned,

When judge or justice may supersede; commitment or discharge; recognizance.

19. Ifa person be in jail, or under recognizance to answer
a charge of assault and battery or other misdemeanor, for
which there is a remedy by civil action, unless the offence
was committed by or upon a sheriff or other offcer of jus-
tice, or riotously, or with intent to commit a felony, if the
party injured appear before the Judge or justice who made
the commitment or took the recogaizenes, and acknowledge
in writing that he bas received satisinction ror the injury,
such judge or justice, in his discretion, may, by an order
under his hand, supersede the commitment, or discharge the
recocnizance as to the accused and the witnesses.

20, Every order discharging & recognizance shall be tiled
with the clerk, before the session of the court at which the
party was to appear, and an order superseding a commitment
shall be delivered to the Jailor, who shall forthwith discharge
the witnesses (if any) ‘and the accused, and avainst him judg.
ment shall be entered, in the said court, tor the eosts of the
prosecution. °

CHAPTER CCVI.

Or GRAND JURIES. e

I. There shall be a grand jury at each regular term of a
cireait court, and at only two of the quarterly terms of the
courts of any county or corporation to be designated by such

court), except the corporation of Richmond, and at the terms
of the corporation court of Richmond in’ February, May,
August and November, and at each of the quarterly terms
oF the corporation courts of Nortoalk, Ales xandria and L yuch-
barge. But it shall be competent for the court of any county
or corporation, ail the Justices of sueh county or corporation
Lavine been summoned tor the purpose, and a majority of
those present concurring, to prove that there shall bea
crand jury at more than two quarterly terms of said court:
provided, however, that the sand court may at any time, and
in like mauner alter the adoption of the said provision, dis-
pense with the additional erand jury or grand juries herein
provided tor Bat it shall ‘be lawtal fora circuit court, ata
speclal term thereot, whenever it shall decm it proper to do
so, to order a grand jury to be summoned to consider any
offences avast the laws,

2, The ofiicer of any such court shall, before the first day
of aterm thereof, at which there is to be such «rand jury,
sammon persons to attend on that day to act on the grand
aury.

3. For every crand jury there shall be swmmoned twenty:
four ettizens of this state, who are freeholders of the county
or corporation in Which the court is to be held. and in other
respects qualified jurors, and uot constables. ordinary keep-
ers, surveyors of roads, nor owners nor oceuplers of water
eyist nil Isy and when they are grand Jurors tor a county
court, not inhabitants of a town h: aviIne a Corporation court.
Any court in whieh a grand jury is to be impanneled may,
hy direction to its clerk, limit the number of persons to serve
thereon : provided, that such number be not less than. six-
teen.

4. Any sixteen or more of such persons shail be a com-
petent «rand j jury. Tf a sufficient number do not attend, the
sad oficer shall forthwith summon so many others as may
be necessary.

>. From amoney the persons so summoned who attend, the
rout shall select a foreman, who shall be sworn as follows :

~ You stall diligently inquire and: true presentment make of
ail such matters as day be viven you In charee or come to
vour knowledge touching the present service. You shall
present no person through dl wil, nor leave auy unpresented
Uironen fear or favor; but in all your presentments you shall
mresent the truth, the whole truth, and nothing but the trath.
So help you God.” The other grand furors shall afterwards
be sworn as follows: “The same oath that your foreman has
taken on his part, you and each of you shall observe and keep
on your part. So help you God.”

6. The grand jury, after being sworn, shall be charged as
to their duty, in a circuit court, by the judge, and in a counts
or corporatéon court by the prosecuting attorney, and shai!
then be sent to their room.

7. The grand jary shall inquire of and present all felonies.
misdemeanors and violations of penal laws committed in the
jurisdiction of the respective courts wherein they are sworn,
except that no presentment shail be made of a matter tor
which there is no corporal punishment, but only a fine, where
the fine is limited to an amount not exceeding tive dollars.

Ss. At least twelve of the grand jury must concur in find.
ing or making an indictment or presentment. They may
make a preseutinent upon the information of two or more uf
their own body; and when a presentment is so made, or oa
the testimony of witnesses called on by the grand Jury, oF
sent to it by the court, the names of the grand jurors giving
the information, or of the witnesses, shall be written at the
toot of the presentment.

9 Although a bill of indictment be returned not a trne
bill, another bill of indictment against the same person, fer
the same offence, may be sent to and acted on by the same
or another grand jury.

10, If the foreman or any grand juror be unable or tail te
attend, after being sworn, another may be sworn in his stead:
and when one grand jury has been discharged, another may.
by order of the court, be summoned to attend at the same
term.

11. A court whose officer shall fail, when it his duty, te
summon a grand jury and return a list of their names, shal!
tine him twenty dollars. A person summoned and tailing to
attend a court as a errand juror, spall be fined by said court
eight dollars, unless, atter being summoned to show cause
against the fine, he give a reasonable excuse for his failure.

CHAPTER CCVIL.
Or PRESENTMENTS, INDICTMENTS AND INFORMATIONS, AND) PROCES
THEREON,

Of presentments, tndictments or informations, and the prosecatur.

1, Prosecutions for offences against the commonweaith.
unless otherwise provided, shall be by presentment, indict
ment or Information.

2, An information may be filed upon a presentmeut or
indictment by a grand jury, or upon a complaint in writing.
verified by the oath of a competent witness; but no person
shall be put upon trial for any felony, unless an indictment
shall have first been tound by a grand jury in court of com
petent jurisdiction, or upon the ‘certificate of the committing
ustice. Ifthe accused be in custody, or has been recognized
r stummoned to answer such presentment, indictment or
omplaint, no other process shall be necessary, but the court
nay, at its discretion, issue process to compel the appearance
yf the accused.

3. In a prosecution for a misdemeanor, the name -of the
rrosecutor, if there be one, and the county or corporation of
HS residence, shall be written at the foot of the presentment,
ndictment or information, when it is made, found or filed;
ind, tor good cause, the court may require a prosecutor to
rive security for the costs, and if he fails to do so, dismiss
he prosecution at his costs.

4. If any proceeding for an offence had or moved at the
nstance ot a proseentor be dismissed, or the accused dis-
thareed from accusation, the court of Justice betore whom
the procecding i is, may give judement against the prosecutor
in favor of the accused for his costs.

». In an indictment or accusation of perjury or suborna-
ion of perjury, it shall be sufficient to state the substance of
the offence charged against the accused, and in what court or
by whom the oath was administered which is charged to have
Leen falsely taken, and to make an averment that such court
or person had competent authority to administer the same,
tovether with the proper averments to falsity the matter
wherein the perjury is assigned, without setting forth any
part of any record or proceeding at law or equity, or the
commission or authority of the court or person before whom
the perjury was committed; but nothing herein shall be con-
strued to allow, without the consent of the accused, a part
only of any record, proceeding or writing to be given in
evidence on the trial of such indictment or accusation.

6. Ina prosecution against a person accused of embezzling,
or frauduléntly converting to his own use bullion, money,
bank notes. or other security for money, it shall he lawful,
In the same indictment or accusation, to charge, and thereon
to proceed against the accused for any number of distinct
acts of such embezzlement or fraudulent conversion which
may have been committed by him within six months from
the first to the last of such ac ts; and it shall be sufficient to
alleve the embezzlement or draudtilent conversion to be of
money, without specifying any particular money, gold, silver,
note or security; and such allegation, so far as it regards the
description of the property, shall be sustained, if the accused
he proved. to have embezzled any builion, money, bank note,
or security for money (although the particular species be not
proved).

‘. Ina prosecution tor forging, or altering or attempting
to raploy as true, any forged instrument or “other thing, and
in prosecution for any of the offences mentioned in ch: upter
one hundred and ninety-three of the Code, and the laws:
amendatory thereof, it shall not be necessary to set’ forth any
copy or fue simile of such instrument or other thing, but it
shall be suflicient to describe the same in such manner as
would sustain an indictment for stealing such instrument «
other thing, supposing it to be the subject of larceny.

8. Ina prosecution for an offence, committed upon oF re
lating to or affecting real estate, or for stealing, em bepa in:
destroying, injuring, or fraudulent lv receiving or concenlon
any personal estate, it shall be suticient to prove that whe
the oifence was committed, the actual or constructive Pos-es
sion, or a general or special property, mm the whole or an,
part of such estate, was in the person or community allese.
in the indictment or other accusation, to be the owner theres

9, Where an intent to injure, defraud or cheat is require:
to constitute au oitence, it shall be sufficient, in an indicgmer
or aceusation therejor, to allege generally ap intent to injure
defraud or cheat, without naming the person intended to t+
injured, defrauded or cheated, and it shall be sufticient, anc
not be deemed a variance, if there appear to be an intent t
injure, defrand or cheat the United States, or any state.
any county, corporation, oflicer or person.

10, All allegations unnecessary to be proved, may bi
omitted in any indictment or other accusation.

11. No indictment or other accusation shall be quashed o7
ve emed invalid tor omitting to set forth that itis upon th:

maths of the jurors. or upon their oaths and amirmation: of
tor the insertion of the words, “upon their oath,” instead «4
“upon their oaths; or for not in terms alleging that the or
fence was committed within the jurisdiction of the court,
when the averments show that the ease is one of which the
court has jurisdiction; or for the omission or Nepihinadiuien
of the title, occupation, estate or dexree of the accused.
of the name or place of his residence; or for omitting ti S
words, “with force and arms,” or the statement of any prr-
ticular kind of force aud arms; or for omitting to state, or
stating imperfectly, the time at which the ofiencé was ¢om-
mitted, When time is not the essence of the offence; or for
failing to allege the value of an instrument which cansed
death, or to allege that it was of no value; or for omittiz.
to charge the offence to be “against the form of the statute.
or statutes; or tor the omission or insertion of any other
words of mere form or surplasage. Nor shallit be abated
for any misnomer of the accused; but the court may, In case
of a misnomer appearing before or in the course of a trial.
forthwith cause the indictment or accusation to be amended
according to the fact.

12. Judement im any criminal case, after a verdict. shall
not be arrested or reversed, upon any exception to the in-
dictment or other accusation, if the offence be charged therein
with sufficient certamty for judement to be given thereon.
according to the very right of the case.

Lfeoused Mscharged if not tried cn ttines provss, Me, Offer pres nl,
ment, NC.

13. A person in jail on a criminal charge shall be dis.
charged from imprisonment if a presentment, indictment or
information be not found or filed against him before the end
of the second term of the court in which he is held to an-
swer, unless it appear to the court that material witnesses for
the commonwealth have been enticed or kept.away, or are
prevented from attendance by sickness or inevitable acci-
dent, and except also in the case provided in the following
section.

14. When a person in jail, on a charge of having com-
mitted a criminal offence, appears from a certificate of a
grand jury, or otherwise, to the satisfaction of the court in
which ‘he is held to answer, to have been insane at the time
of committing the act, and continues to be ‘so insane, the
court in its discretion may order him to be sent to one of
the lunatic asylums of the state, or to be delivered to his
friends.

15. Upon a presentment, indictment or information of a
felony, for which the party charged has not been arrested,
the presiding judge or justice shall issue a warrant to any
sheriff, sergeant or constable, commanding him to arrest such
party, and carry him before & justice of the county or corpo-
ration in which he ought to be tried, and to summon the wit-
nesses on whose information the presentment, indictment or
information was made, to appear and testify before the jus-
tice. The justice to whom such warrant is returned, shall
proceed in the case as if the warrant had been issued by
himself.

16. When a presentment is made or indictment found ina
case, other than that provided for in the preceding section, if
it be in a circuit court, a copy of such presentment or indict-
ment, and of all papers relating to the case, shall be certified
by the clerk to the court of “the county or corporation in
which the offence is charged to have been committed. Upon
such presentment or indictment, and upon any like present-
ment or indictment made or found, or information filed in such
county or corporation court, process shall be awarded by the
court, or be issued by the clerk thereof, in vacation. Such
process, if the prosecution be for a felony, shall be a capias ;
if it be for a misdemeanor, for which an infamous or corporal
punishment may be inflicted, it may be a capias or a sum-
mons, at the discretion of the court; in all other cases it shall
be, in the first instance, a summons; but if a summons be re-
turned executed, or two be returned not found, and the de-
fendant do not appear, the court may award a capias. All
copies certified under this section shall be used with the same
effect as the originals.

17. The second section of chapter one hundred and seventy
shall apply to process in criminal as well as in civil cases; and
the court may, in the same case against the same person,
award at the same time, or different times, several writs of
summons or capias, directed to officers of different counties
or corporations. An officer havi ing a capias under which the
accused is let to bail, shall give him a certificate of the fact,
which shall protect him against any other capias which may
have been issued for the same offence. °
18. The clerk of every court shall forward by mail all pro-
cess issued tor the commonwealth, directed to the officer of
any county or corporation other than his own, and pay the
postage thereon, which, on being duly certified by the court,
shall be paid out of the treasury.

19. When process of arrest, in a criminal prosecution, is
issued from a court during its session, either against a party
accused or a witness, the officer to whom it is directed or de-
livered, may execute It in any part of the state.

20.° An officer who, under a capias from a court, arrests a
person accused of an offence not bailable, or for which bail is
not given, shall deliver the accused to such court, if sitting.
or to the jailor thereof, who shall receive and imprison
him.

21. A person arrested on 4 capias, to answer or hear judg-
ment on a presentment, indictment or information for a mis-
demeanor (other than such as is mentioned in the first see-
tion of chapter one hundred and ninety-eight), or on an
attachment (other than an attachment to compel the per-
formance of an order or decree in chancery), may be admitted
to bail by the officer who arrests him; the said officer taking
a recognizance in such sum, not being less than two hundred
dollars, unless by general or special order of the court a less
sum be authorized, as he, regarding the case and the estate
of the accused, may deem suflicient to secure his appearance
before the court from which the process issued at the time
required thereby. The officer shall return the recognizance
to said court on or before the return day of such process.
If he fail to make such return, he shall forteit twenty dollars;
and if he take insuflicient bail, he shall be fined at the dis-
cretion of a jury.

22. No intormation need be filed on a presentment of an
offence for which there is no punishment but a fine or for-
feiture limited to an amount not exceeding twenty dollars.
But a summons to answer such presentment may be issued
against the accused, and if it be served ten days betore the
return day thereof, and he do not appear, judgment may be
rendered against him for the penalty. If he appear, the
court may, without a jury, hear and determine the matter,
and give judgment thereon.

23. On any indictment, presentment or information, (not
embraced in the preceding section,) founded on any provi-
sion of chapter one hundred and ninety-eight, (except the
twenty-seventh and thirtieth sections thereot,) or any provi-
sion of chapter thirty-eight or chapter one hundred and four,
process shall be issued immediately. If the accused appear
and plead to the charge, the trial shall proceed without de-
lay. If being summoned he fail to appear and plead, the
court may render judgment in the same manner as if he had
confessed the charge in court; and if the offence be punish-
able by a fine, not fixed by law, a jury shall be impanneled
to assess the same.

24. No exception shall be allowed for any defect or want
of formi in any presentment, indictment or information men-
tioned in either of the two preceding sections, but the court
shall give judgment thereon, according to the very right of
the case.

25. In prosecutions for misderfeanors, in cases not em-
braced by the twenty-third section, if a capias be returned
not found, after a summons is returned executed, or if the
accused was admitted to bail and make default, the court
may either award a new capias or proceed to tfial in the
same manner as if the accused had appeared and plead not
guilty. i

26. There shall be no discontinuance of any criminal pro-
secution by reason of the failure of the court to award pro-
cess or to enter a continuance on the record.

27. Judgment of outlawry shall be rendered by the court
of: the county or corporation in which the prosecution is,
and may be reviewed, corrected or reversed, on motion, or
by writ of error coram nobis.

28. When a person is outlawed, the same judgment, exe-
cution and disabilities shall ensue and be awarded as if he
were convicted of the offence with which he was charged.

29. On any indictment, presentment or information against
a corporation, if a summons be served according to the
seventh section of chapter one hundred and seventy of the
Code of Virginia, and defendant fail to appear, the court may
proceed to trial and judgment without further process, as if
the defendant had appeared and plead not guilty. And
where, in any such cause, publication of a copy of the process
is required according to the said section, the expense of such
publication may be certified by the court to the auditor of
public accounts, and shall be paid out of the treasury of the
commonwealth; but the same shall be taxed with other costs,
and collected from the defendant, if judgment be for the
commonwealth, and be paid into the treasury by the officer
collecting the same. co,

CIIAPTER CCVIII.
OF TRIAL AND ITS INCIDENTS.

When and where felony 18 tried; presence, plea and privilege of
accused,

1. Trials for felony shall be in a county or corporation
court, and may be at any term thereof, except that a person
to be tried for rape, arson, malicious shooting, cutting, stab-
bing or wounding with intent to maim, disfigure, disable or
kill; for forgery, or uttering as true forged paper; for pass-
ing counterfeit money, or for a felony which may be punish-
able with death, may, upon his arraignment in the county or
corporation court, demand to be tried in the circuit court
having jurisdiction of the said county or corporation; but
no such demand shall be allowed in any corporation or hust-
ings court held by a judge, and in which, by especial statute,
capital felonies may now be tried. Upoh such demand, the
accused shall be remanded for trial in the said circuit court,
and all the material witnesses desired for the prosecution or
the defence shall be recognized for their attendance at sach
trial. When a person is remanded as aforesaid, by a county
or corporation court, the clerk thereof shall certify and
transmit to the clerk of the court in which he is to be tried,
a record of the proceedings had in the said county or corpo.
ration cotfrt, in relation to ) the prosecution, and copies of the
indictment or other accusation, ani of all recognizances and
other papers connected with the case; such copies shall be
used with the same effect as the originals. If the accused be
remanded for trial in a court whose jail is not the jail of the
court remanding him, the latter court, by its order, or if it
fail, any two justices of the county or corporation, by their
warrant, shall direct the officer of such court to (and he shail)
remove the prisoner to the jail of the court in which he is to
be tried, and the jailor thereof shall receive and keep him
safely until discharged by law. The clerk of the county or
corporation court shall, as soon as may be, issue a venire
facias, directed to the officer of the court in which the tria!
is to be, requiring him to summon jurors for such trial.

2. When an indictment is found or other accusation filed
against a person for felony, in a court wherein he may be
tried, the accused, if in custody, or if he appear according to
his recognizance, shall, unless good cause be shown tor a con-
tinuance, be arraigned and tried at the same term. He shal!
be allowed counsel, if he desire it, to assist him in his de-
fence; and a copy of the indictment or accusation, and of the
list of jurors summoned for his trial, shall be furnished him
without fee, upon his request, at any time before conviction.

3. Any person tried for felony shall be personally present
during the trial. If, when arraigned, he will not plead or an-
swer, and do not confess his guilt, the court shall have the
plea of not guilty entered, and the trial shall proceed as if
the accused had put in that plea.

Of the jury, in eriminal cases.

4. Inacase of felony, in which a writ of venire facias is
necessary, the writ shall command the officer charged with
its execution, to summon twenty-four persons, freeholders ot
his county or corporation, residing remote from the place
where the offence is charged to have been committed. and
qualified in other respects to serve as jurors, to attend the
court wherein the accused is to be tried, on the first day of
the next term of said court, or at: such other time as ‘the
court may direct. Ifa person summoned under such writ
fail to attend as required, without sufficient excuse, he shall
be fined by the court eight dollars.

5. The clerk of a county or corporation court, dn which a
person accused of felony is held or recognized for trial, shall,
as soon as practicable after such person is committed or re-
cognized, issue a venire facias for his trial, returnable to the
first day of the next term, or to such other day as the attor-
ney for the commonwealth may direct. And if a person
charged with felony be not tried at any term of the court in
which he is to be tried, the clerk of such court shall, at least
five days before any subsequent term that the case remains
pending, issue a venire facias for his trial, returnable as above
required.

6. Any court in which a person accused of felony is to be
tried, may at any time cause a venire facias to issue for his
trial.

7. No challenge of a juror shall be allowed the common-
wealth, except fur cause, and all ch: ulenges shall be tried by
the court in which they are made.

®&, A person whose opinions are such as to prevent his
convicting any one of an offence punishable with death, shall
not be allowed to serve as a juror on a trial for such offence.

% When any jurors, summoned under a writ of venire
facias, fail to attend or are challenged for cause, or if the
whole array be challenged, the court shall cause other jurors
to be summoned in the county or corporation, until a panel
of twenty-four jurors, free from exception, be completed.
The accused shall have no peremptory challenge, except. that
he may strike from the panel not exceeding eight of the
names thereon; and then the jury for the trial shall be eom-
posed of twelve of those not so stricken off, to be selected
by lot.

10. In a criminal case, if qualified j jurors, not exempt from
serving, cannot be conv eniently found in the county or cor-
poration in which the trial is to be, the court may cause so
many as may be necessary of such jurors to be summoned
from any other county or corporation by the sheriff or ser-
geant thereof, or by its own officer. Every juror, so sum-
moned, shall be paid one dollar for each day he attends, and
the same mileage as a witness in a civil case; and every juror

residing in such county or corporation, and serving on such
jury, shall be paid in like manner one dollar for each day he
attends on such jury. Such jurors shall be forthwith paid by
the ofticer of the court, and he shall be repaid out of the
treasury on the order of the court.

11. When, in a criminal case, the jury are kept together
beyond the day on which they are impanneled, the court shall
direct its officer to furnish them with suitable beard ane
lodging while so confined. The expenses thereof, not e
ceeding one dollar per day for each juror, shall be paid out
of the treasury when allowed by the court.

12. If ajuror, after he is sworn, be unable from any cause
to perform his duty, the court may, in its discretion, cause
another qualitied juror to be sworn in his place; and in any
criminal case, the court may discharge the jury, when it ap-
pears they cannot agree in a verdict, or that there is a mani-
fest necessity for such discharge.
13. Where several persons are jointly charged and held to
be tried for felony, the clerk by whom a venire facias is re-
quired to be issued, shall issue a writ for a single venire for
the trial of all of them.

14. Persons indicted for felony, who elect to be tried
jointly, shall be allowed to strike from the panel not more
than eight thereof, and only such as all of them agree to
strike from it.

15. If persons indicted jointly for felony clect to be tried
separately, the venire summoned for their trial may be use
for him who is first tried, and the court shall award a “sever: 1
venire facias for the trial of each of the others.

16. No person shall, while he is insane, he tried for a
criminal offence.

17. If a court in which a person is held for trial see rea-
sonable ground to doubt his sanity at the time at which, but
tor such doubt, he would be tried, it shall suspend the trial
until a jury inquires into the fact as to such sanity. Such
jury shall be impanneled at its bar. If the Jury find the ae-
cused to be sane at the time of their verdict, they shall make
no other inquiry, and the trial in chiet shall proceed. If they
find that he is insane, they shall inquire whether or no he was
so at the time of the alleged offence. If they find that he
was so at that time, the court may dismiss the prosecution.
and either discharge him, or, to prevent his doing mischief,
remand him to jail, and order him to be removed thence te
one of the lunatic asylums of this state. If they find that
he was not so at that time, the court shall commit him to
jail, or order him to be confined in one of the said asylums
until he is so restored that he can be put upon his trial.

1s. If, after conviction and before sentence of anv person.
the court see reasonable ground to doubt his sanity, it may
impannel a jury to inquire into the fact as to his sanity, and
sentence him or commit him to jail or to a lunatic asylum.
according as the jury may find him to be insane or sane.

19. When the board of directors of the lunatic asylum
shall give notice to the clerk of the court, im pursuance of
the thirty-eighth section of chapter cighty-five, such clerk
shall issne a precept to the officer of said court, requiring
him to bring the said prisoner from the asylum and commit
him to jail.

20, When a prisoner is so brought from the asylum and
committed to jail, or when it is found by the verdict of’ an-
other jury that a prisoner, whose trial or sentence was sus-
pended by reason of his being found to be msane, has been
restored, if convicted, he shall be sentenced; and if not, the
court shall proceed to try him as if no delay had occurred on
account of his insanity.

21. When a person tried for an offence is acquitted by the
jury by reason of his being insane, the verdict shall state the
fact; and thereupon the court may, if it deems him danger-
ous, order him to be committed to jail until he can be sent
to one of the said asylums.

y . ‘
When venue changed or judge caniot sit. ¢

22. A circuit court may, on the motion either of the ac-
cused or of the attorney for the commonwealth, or without
such motion, for good cause, order the venue for the trial of
a criminal case in such court to be changed to some other
circuit court; and the court of a county or corporation may
in like manner order the venue ,to be changed to another
county or corporation.

23. When the venue is so changed, the court making the
order may admit the accused to bail, and shall recognize the
witnesses and the accused (if admitted to bail and the bail
be given) to appear on some certain day before the court to
which the case is removed; if the accused be not admitted

to bail, or the bail required be not given, the court shall re-
mand him to its own jail, and order its ofticer to remove him
thence to the jail of the court to which the case is removed,
so that he shall be there before the day for the appearance of
the witnesses.

24. The clerk of the court which orders a change of venue,
shall certify copies of the recognizances aforesaid, and of the
record of the case, to the clerk of the court to which the
case is removed, who shall thereupon issue a venire facias,
directed to the officer of such court; and such court shall
proceed with the case as if the prosecution had been origi-
nally therein; and for that purpose the certified copies afore-
said shall be sufficient.

25. When the judge of a circuit, in which a prosecution is
pending, is connected with the accused or party Injured, or
so situated in respect to the case as in his opinion to render
it unfit that he should preside at the trial, he may enter the
fact on the record.

26. Thereupon the judge may change the venue as herein-
before provided, or may, with the consent of the accused, re-
mand him for trial im the county or corporation court in
which the prosecution was begun, and cause the record and
proceedings to be certified to such court, which shall proceed
to try the case as if it had never been removed therefrom.

Of the verdict; in what time prisoner must be tried.

27. Ifa person indicted of felony, be by the jury acquitted
of part and convicted of part of the offence charged, he shall
be sentenced for such part as he is so convicted of, if the
same be substantially charged in the indictment, whether it
be felony or misdemeanor.

28, If a person indicted of murder be found by the jury
guilty thereof, they shall, in their verdict, find whether he is
guilty of murder in the first or second degree. If the ac-
cused confess the indictment to be true, the court shall ex-
amine the witnesses and determine the degree of the crime,
and give sentence accordingly.

29, On an indictment for felonious homicide, the Jury may
find the accused not guilty of the felony, but guilty ‘of in-
voluntary m: anslaughter. And on any indictment tor mali-
ciously shooting, stabbing, cutting or wounding a person, or
by any means causing him bodily injury, with intent to kill
him, the jury may find the accused not guilty of the offence
charged, but cuilty of maliciously doing such act with intent
to maim, distigure or disable, or of unlawtully doing it, with
intent to maim, distigure, dsable or kill such person.

Oo, Ina prosecution for grand larceny. if it be found that

the thing stolen is of less ‘yalue than fifty dollars, the jury

may find the accused cuilty of petit larceny; and ina prose-
cution for petit larceny, though the thing stolen be of the
value of fitty dollars or more, the jury may find the accused
guilty; and in either case, he shall be sentenced for petit
larceny,

31. On an indictment for telony, the jury may find the

-accused not cuilty of the felony, but guilty of an attempt to

commit such felony; and a ceneral verdict of not guilty upon
such indictment, shall be a bar to a subsequent prosecution
for an attempt to commit such felony.

32. When there are several counts in an indictment or in-

formation, and a general verdict of guilty is found, judgment

‘

shall be entered against the accused, if any count be.good,
though others be faulty; but on the trial the court, on the
motion of the accused, may instruet the jury to disregard any
count that is faulty.

33. When two or more persons are charged and tried
jointly, the jury may render a verdict as to any of them as
to whom they agree. Whereupon judgment shall be en-
tered according to the verdict; and as to the others, the case
shall be tried by another jury.

34. Every person charged with felony, and held in any

f
court for trial, shall be forever discharged from prosecution

for the offence if there be three regular terms of such court,
atter he is so held, without a trial, unless the failure to trv
him was caused by his insanity, or by the witnesses tor the
commonwealth being enticed or kept away, or prevented
from attending by sickness or inevitable accident: or by 3
continuance ranted on the motion of the accused ; or by
reason of his escaping from jail or failing to appear accord-
ing to his recognizance; or of the inability of the jury to
acree In their verdict.
CHAPTER CCIX.
OF EXCEPTIONS, WRITS OF ERROR AND EXECUTION OF JUDGMENT,
Bill of exceptions ; execution of judgment suspended; writ of error.

1. A party in a criminal case or proceeding for contempt,
for whom a writ of error lies to a higher court, may except
to an opinion of the court and tender a bill of exceptions,
which (if the truth of the case be fairly stated therein) the
judge, judges or justices, or the’ greater part of those present,
shall sign; and it shall be a part of the record of the case.

2. If a person, sentenced by a circuit court to death or
confinement in the penitentiary, ask for time to apply for a
writ of error, the said court shall postpone the execution of
its sentence until a reasonable time beyond the first day of
the next term of the court of appeals, not exceeding thirty
days after that day, and a county or corporation court shall
in like manner suspend its judgment for the same purpose.
In any other criminal case, wherein judgment is given by a
circuit court, and in any case of judgment for a contempt, to
which a writ of error lies, the court giving such judgment
may postpone the execution thereof for such time and on
such terms as it deems proper.

3. A writ of error shall lie in a criminal case, to the judg-
ment of a circuit court froin the court of appeals; and to a
judgment of a county or corporation court, from the circuit
court having jurisdiction over such county or corporation.
It shall lie in any such case for the accused; and if the case
be for violation of a law relating to the revenue, it shall lie
also for the commonwealth.

4. Toa judgment for a contempt of court, other than for
the non-performance of or disobedience to a judgment, de-
cree or order, a writ of error shall lie, when the judgment is
of a county or corporation court, from the cirenit court hay-
ing jurisdiction over such county or corporation; when it is
of a circuit court, from the court of appeals:

». When in any case within this chapter, a writ of error
lies from a circuit court, it may, in vacation of such cof&t, be
awarded by any circuit judge; and when it lies from the
court of appeals; it may, in the vacation of said ,court, be
awarded by any judge thereof.

G. A writ of error awarded under this chapter to any
judgement, may operate as a supersedeas thereto, if the court
or judge awarding it so direct, on such terms and conditions
as the said court or Judge may prescribe.

7. The court from which a writ of error lies, shall affirm
the judgment, if there be no error therein, and reverse the
same, in whole or in part, if erroneous, and enter such judg-
ment as the court whose error is sought to be converted
oucht to have entered, or remand the cause and Wirect anew
trial, affirming in those cases where the voices on both sides
are equal. : :

Bee us
8. Sentence of death, except for insurrection or rebellion,
shall not be executed sooner than thirty days after, the sen-
tence is pronounced.

9. The clerk of the court pronguncing such sentence shall,
as soon as may be after the sentence, deliver a certified
copy thereof to the oflicer of said court, who shall cause the
sentence to be exccuted. Under such sentence, death shall
be inflicted by hanging the convict by the neck until he 1s
dead.

10. Whenever sentence of death is to be executed, if the
convict under such sentence be in jail, around or adjoining
which there is a yard of sufficient size, enclosed by a wall,
such sentence shall be executed within such enclosed yard,
unless the court by which such sentence was pronounced
direct otherwise. At the execution there shall be present,
besides the oflicers of said court, such other officers and such
guard and assistants as the officer executing the sentence
shall see fit. Ife shall request the presence of the attorney
tor the commonwealth in said court, the clerk thereof and
twelve respectable citizens, including a physician or surgeon;
and he shall permit the presence of the counsel of the con-
vict, and such ministers of the gospel as he shall desire, and
such of the convict’s relations as the officer shall deem pru-
dent.

11. The officer executing a sentence of death shall certify
the fact to the clerk of the court, who shall tile the certificate
with the papers in the case.

12. Every person sentenced by a court to confinement in
the penitentiary, shall, as soon as may be, be delivered at the
penitentiary by the officer of such court. If he fail to make
such delivery within a reasonable time, he shall forfeit one
hundred dollars. It shall be lawful for the auditor of public
accounts to allow officers conveying persons to the jail or
penitentiary, the necessary expenses of the prisener or con-
Vict.

3. The clerk of the court in which a person is sentenced
to tM penitentiary, shall forthwith transmit to the superin-
tendent a full copy of the record of the trial and conviction.
If he fail so to do, he shall forteit one hundred dollars.

14. The officer who is required to carry a prisoner to the
penitentiary, or to any other place, may, if he deem it neces-
sary for his safe conveyance, summon one person, but not
more than one, as a cuard to cach prisoner, except as tollows:

15. When the court, judve or justices, by whose judg:
ment or order a prisoner is to be removed, shall think a
stronger guard proper, and order it, as many persons as may
be so ordered shal] be summoned by the officer.

16. If on the way to the penitentiary or other place, in
consequence of an attempt to rescue the prisoner, made or
reasonably apprehended, or in consequence of any other un-
foreseen danger, the oflicer is satistied that a stronger guard
than was before summoned is necessary, he may summon
such additional guard as is necessary.

17. The officer and guard, while conveying a prisoner to
the penitentiary and other place, and returning therefrom,
shall be privileged from arrest, except for felony and breach
of the peace, allowing one day for every twenty miles.

18. If a person who is sentenced to be confined in jail a
certain term, and afterwards until he pay a fine and the costs
of the prosecution, fail to pay such fine and costs before the
end of said term, he shall continue in confinement until the
same be paid, or his discharge be ordered by the court; but
the additional confinement shall in no case exceed six months
from the end of* said term.

19. Whenever a person is in jail under a capias pro fine,
issued from any court of this commonwealth, on application
to the court from the clerk’s office of which such execution
issued, or to the judge of such court in vacation, such court,
or the judge i in vacation, as the case may be, if to such court
or judge it shall appear proper, may order the person so in
jail to be released from imprisonment without the payment
of the money mentioned in such execution: provided, how-
ever, that in all such applications the attorney for the com-
monwealth of the court from which the execution issued,
shall have ten days’ notice of such application.

20. Whenever any court of this commonwealth shall have
directed any person, convicted of a misdemeanor, to be con-
fined in jail until the fine imposed upon such person, or until
the costs of the prosecution shall have been paid, the person
so confined may be released in the manner provided for in
the preceding section: provided further, that nothing in this
act shall prevent the issue of a fieri facias after such release
from jail.

21° No capias to hear judgment shall be necessary in any
prosecution for a misdemeanor, but the court may proceed
to judgment in the absence of the accused; and if such judg-
ment requires an infamous or corporal punishment, the court
may make such order as may be necessary-for the arrest of
the person against whom such judgment is, and for the exe-
cution of the judgment. The proceedings upon such order
shall conform, as nearly as may be, to those upon a capias to
hear judgment, and all officers charged with its execution
shall have the same powers and duties, and be subject to the
same responsibilities as provided by law in me case of a
capias to hear judgment.

CHAPTER CCX.
Or TAXATION AND ALLOWANCE OF COSTS,

1. When ordered by the court to do so, or it is in his
own opinion necessary for the safe keeping of a prisoner
under charge of or sentence for crime, the jailor shall sum-
mon a sufficient guard, and the circuit court of the county or
corporation in which the jail is, may allow therefor so much
as it deems proper, not exceeding one dollar a day for each
man.

2. The said circuit court, before certifying any allowance,
shall i inquire into the condition of the jail; if it appear that
a guard was necessary, because of the insecurity of the jail,
it shall order the allowance to be certified to the county or
corporation court, and it shall be chargeable to such county
or town; but if otherwise, and the guard was necessary, the
allowance shall be certified for pay ment out of the tre asury.

3. A court may appoint a physician to attend prisoners in
its jail, and make him a reasonable allowance. It may also.
when a person in its jail, charged with or convicted of an
offence, is unable to provide himself with sufficient clothing,
direct the jailor to provide him clothing, and allow therefor
not exceeding ten dollars m one year. Allowances under
this section, on being certitied by such court, shall be paid
out of the treasury.

4. The thirty-filth, thirty-sixth and thirty-seventh sections
of chapter one “hundred and sev enty-six, shall apply to a per-
son attending as a witness, under a recognizance or summons
in a criminal case, as well as to a person attending under a
summons in a civil case, except that in a criminal case a wit-
ness who travels over fifty miles to the place of attendance,
shall have for each day's attendance one dollar instead of fitty
cents; and a person residing out of this state, who attends a
court therein as a witness, shall be allowed by said court a
proper compensation for attendance and travel to and from
the place of his abode—the amount of the same to be fixed
by the said court.

®. The sum to which a witness is entitled who attends for
the commonwealth, and any other legal charges incurred in
a case wherein there is & prosecutor, shall be paid by such
prosecutor as if he were plaintiff in the case, unless there be
a judgment against the defendant, in w hich case the same
shall be taxed in the costs, and paid to the persons entitled
thereto, by the sheriff or oflicer who may receive the same.

6. Pay ment shall not be made out of the treasury to a wit-
ness attending for the commonwealth in any prosecution for
aml demeanor, unless it appears that the sum to which the
witness 18 entitled cannot be obtained, if it be a case wherein
there is a prosecutor and the defendant is convicted, by rea-
son of the insolvency of the defendant, or if it be a case in
which there is no prosecutor, by reason of the acquittal or
insolvency of the defendant or other cause.

7. A sheriff or other oflicer, for traveling out of his county
or corporation to execute process in a criminal case, and
doing any act in the service thereof, for which no other com-
pensation is provided, shall receive therefor, out of the trea-
sury, such compensation as the court from which the process
issued may certify to be reasonable. When in a criminal
case an oflicer renders any other service, for which no specific
compensation is provided, the court in which such case may
be, may allow therefor what it deems reasonable, and such
allowance shall be paid out of the treasury. This section
shall not prevent any payment under the fourteenth section
of chapter forty-five, which could have been made if this sec-
tion had not been enacted.

8. The certificate required by the thirty-first section of
chapter one hundred and eighty-four, shall, when the pay-
ment is to be to a clerk, be from the court whereof he is
clerk; and when it is to be to a sheriff or other officer, be
from the court in which the prosecution is, or to which a
justice shall certify as hereinafter mentioned. Any other ex-
pense incident to a proceeding in a criminal case, whioh is
payable out of the treasury, otherwise than under the pre-
ceding section, or under the fourteenth section of chapter
torty- -five, shall be certified by such last mentioned court,
where it is not otherwise provided. With the certificate of
allowance, there shall be transmitted to the auditor of public
accounts the vouchers on which it 1s made.

9. The entry of such certificate of allowance, shall state
how much thereof is on account of each person “prosecuted.

10. A Justice before whom there is any proceeding in a
criminal case, shall certify to the clerk of the court of his
county or corporation: and a judge or court before whom
there is, in a criminal case, any proceeding preliminary to
conviction in another court, upon receiving information of
the cpnviction from the clerk of the court wherein it is, shall
certify to such clerk all the expenses incident to such pro-
ceeding which are payable out of the treasury.

-11. In every criminal case, the clerk of the court in which
the accused is convicted, or, if the conviction be before a
justice, the clerk to which the justice certifies as aforesaid,
shall, as soon as may be, make up a statement of all the ex-
penses incident to the prosecution, including such as are cer-
tified under the preceding section, and execution for the
amount of such expenses shall be issued and proceeded with ;
and chapter forty-three shall apply thereto, in like manner as
if, on the day of completing said statement, there was a judg-
ment in such court in favor of the commonwealth against the
accused for the said amount 4s a fine. ,

12. If, by reason of the failure of a person to present his
claim in due time, 4 sum be not included in such execution,
which would have been included if so presented, such claim,
unless there be good cause for the failure, shall be disallowed.

13. No fee to any attorney for the commonwealth shall be
payable out of the treasury unless it be expressly provided.
and in no case shall there be judgment for costs against the
commonwealth.
GENERAL PROVISIONS AS TO PROCEEDINGS IN CRIMINAL CASES.
Proceedings against Indians ; summons for a witness.

1. Ina criminal case against an Indian, or a person of In-
dian descent, the proceedings shall be as against a white
pergon. .

In a criminal case, 2 summons for a witness may be
isstied by the attorney for the commonwealth. The twenty-
first, twenty-second, twenty-third, twenty-fourth and twenty-
fifth sections of chapter one hundred and sev enty-six, shall,
in all other respects, apply to a criminal as well as a civil

case, except that a witness in a criminal case shall be obliged
to attend, and may be proceeded against for failing so to do.
although there may not previously have been any payment.
or tender to him, ot anything for attendance, mileage or
tolls.

Of recognizances.

3. A-court or judge, letting any person to bail, shall re-
quire a recognizance to be given.

-t, Recognizances i in criminal cases shall be payable to the
commonwealth of Virginia. Every recognizance, under any
chapter of this title, shall be in such sum as the court or ofh-
cer requiring it may direct. If it be to answer for a misde-
meanor, or if required of a witness, it shall be witb or with-
out surety, as the court or officer may direct; but in all other
cases, shall be with surety deemed sufficient by the court or
officer taking it. The condition, when it is taken of a person
charged with a criminal offence, shall be, that he appear be-
fore the court, judge or justice before whom the proceeding
on such charge will be, at such time as may be prescribed by
the court or officer taking it, to answer for the offence with
Which such person is charged; and when it is taken of a wit-
ness na case against any such person, shall be, that he so
appear to give evidence on such charge; and in either case
shall be, that the person or witness shall not depart thence
without the leave of said court, judge or justice; when taken
for any other purpose than to appear so to answer or give
evidence, it shall be with condition that the person of whom.
it is taken, shall keep the peace and be of good behavior for
such time, not exceeding one year, as the court or officer re-
quiring it may direct; and if such court or officer direct. it
may, When taken of a person so charged, be with condition
for so keeping the peace and being of good behavior, in ad-
dition to the other condition of his recognizance.

5. A recognizance which would be taken of a person but
for his or her being insane, or a married woman or minor,
may be taken of another person, and without further surety.
if such other person be deemed sufiicient.
6. A person not giving,and for whom no other person
gives a recognizance required, shall be committed to jail.
He shall be discharged therefrom when such recognizance is
given before the court or a conservator of the peace; or if it
be to appear and give evidence, when such evidence is given;
or if it be to keep the peace and be of good behavior, when
the period for which it was required has elapsed; or in any
case, when the discharge of such person is direeted by the
court in whose jail he is. . °

7. A person taking a recognizance out of court, shall
forthwith transmit it to the clerk of the court for appearance
before which it is taken; or if it be not for appearance be-
fore a court, to the clerk: of the county or corporation in
which it is takén; and it shall remain filed in the clerk’s
oflice.

8. When a person under recognizance in, a criminal case,
either as party or witness, fails to perform the condition
thereof, if it be to appear before a court, his detault shall be
recorded therein. The process on every recognizance shall
be issued from the court before which the appearance was to
be, or, if it be not for such appearance, from a court in which
it is taken, or (when taken out of court) in whose office the
recognizance remains filed; and in a proceeding in one court
on a recognizance entered in another, a copy thereof shall be
evidence in like manner as the original would have been, if
entered,in the court wherein the proceeding is.

9. A surety in a recognizance may, after default, pay into
the court from which process has issued, or may issue thereon,
the amount for which he,is bound, with such costs asthe
court may direct, and be thereupon discharged.

10. When, in an action or scire facias on a recognizance,
the penalty is adjudged to be forfeited, the court may, on ap-
plication of a defendant, and with the consent of the attorney
prosecuting, remit the penalty, or any part of it, and render
jadgment on such terms and conditions as it deems reason-
able.

11. No action or judgment on a recognizance shall be de-
feated or arrested by reason of any defect in the form of the
recognizance, if it appear to have been taken by a court or
officer authorized to take it, and be substantially sufficient.

12. A surety in a recognizance may at any time take his
principal and surrender him to the court or judge before
whom the recognizance was taken; or if it was taken by a
court which is not in session, or by a justice, to a judge or
justice of such court, or a justice of the county or corpora-
tion in which it was taken; whereupon said surety shall be
discharged from liability for any act of the principal subse-
quent thereto. |

13. If the surrender, be before a judge or justice, he shall
give the surety a certificate thereof, and the accused be
let to bail anew for the residue of the term, or to appear as
before required, and on failure so to recognize, shall be com-
mitted to jail as in other cases of failure to give bail. Ifthe
surrender be to the court, it shall take such order as it deems
proper.

als to fines on jurors, wkinesses and others.

14. The name of any person suunmoned by an oflicer, and
failing to attend as a juror upon an inquest out of court,
shall be returned by such oflicer to the next term of the
court from which the process issued requiring such jury; or
if there be no such process, to the next term of the court of
such officer's county or cerporation. Such court shall fine
such person, unless he have a reasonable excuse for his failure,
eight dollars. -

‘15. No court shall impose a fine upon afuror, witness or
other person, for disobedience of its process or any contempt,
unless he either be present in court at the time, or shall have
been served with a rule of the*’court, returnable to a certain
time, requiring him to show cause why the fine should not
be imposed, and shall have failed to appear and show cause.

2. That all acts amendatory of the chapters hereby re-
enacted, and all parts of the said chapter not herein con-
tained, be and the same are hereby repealed.

3. That sections one, fifteen, sixteen, seventeen and elgh-
teen of chapter one hundred and fifty-seven, and section tive
of chapter one hundred and fifty-eight of said Code, be
amended and re-enacted so as to read as follows:

“$1. For every county, and -for every corporation in
which the power of holding conrts has been or shall be
vested by law, there shall be a court called the court of such
county or corporation. It shall be held by the justices of
the county or corporation, or any three of them, except
where it is otherwise expressly provided.

Ҥ 15. There shall be in each county of the common.
wealth, in four of the months of every year, a quarterly
term of every county court, and in every other month, a
monthly term thereof, to be held at the times and with the
jurisdiction, so far as is consistent with the constitution and
this act, now prescribed by law. ‘The presiding justice and
two other justices of the county, or In the absence of the
presiding justice, any three justices of the county, may con-
stitute a court, except where it is provided that more than
three 1s necessary to constitute a court; in which case, the
number so provided shall be necessary: provided also, that
where a county levy is to be made, all the justices shall be
summoned; provided moreover, that nothing herein con-

tained shall be construed as repealing any of the laws now
in force requiring the summoning of all the justices to give
validity to any action of the court. [every such term of
said courts may continue not exceeding fifteen days, and
may adjourn from day to day, or to any day within the
fifteen days. The court may trom time to time change the
day for the commencement of the terms thereof or any of
them, all the acting: justices of the county or corporation
being first summoned, and a majority concurring in such
change. The clerk of such court, within thirty days after
any such change, shall send a copy of the order making it, to
the clerk of the house of delegates; and if he fail to do so.
shall forfeit fifty dollars in every case in which the court of a
county or corporation has, since the Code took effect, made
an order, or shall hereafter make an order, changing the time
for holding any quarterly term thereot—such order shall be
deemed valid, provided all the acting justices of such county
or corporation shall have been first summoned, and a ma-
jority concurred in such change.

“$16. The court of a county or corporation shall have
jurisdiction to hear and determine all cases, civil and crimi-

nal, at law or,in chancery, within such county or corpora-
tion, whether the same be now pending or be hereafter
brought j in said colrt, except civil cases to recover property
or money, not of greater value or amount than twenty dol-
lars, exclusive of interest, and except such cases as are by
lay specially assigned to some other tribunal. The said
court shall also have jurisdiction to hear and determine all
motions and other matters made cognizable therein by any
statute; and where a motion to recover money is allowed
in a county or corporation court, otherwise than under the
sixth section of chapter one hundred and sixty-seven, such
court may hear and determine the samé, although it be to re-
cover less than twenty dollars.

Ҥ 17. In a county or corporation court, cases of caveat,
such motions as are provided for by the fifth section of chapter
one hundred and sixty-seven, and actions at law, shall be cog-
nizable only at a quarterly term thereof. All other matters
or things, authorized by the law to be done by or in such
court, may be done either at a monthly or quarterly term.

“y 18. “Each county or corporation court may designate
two of the quarterly terms of such court, for the trial of jury
cases; and thereafter, until it shall otherwise order, all civil
cases cognizable in such court in which juries are required,
except cases of forcible entry and unlawful detainer, shall be
ried only at such terms. Such court may also designate such
ferms, quarterly or monthly, as it may deem proper for the
rial of prosecutions for misdemeanor, and may require juries
0 be summoned to attend at such terms.”

“$5. The circuit court of every county or corporation
hall have jurisdiction, not only of all matters made cogniza-
dle in such court by any statute, but also concurrent with the
‘ourt of such county or carporation, im all cases in chancery
ind all actions at law.”

4. Tn any prosecution for a misdemeanor, or for any felony
lot punishable with death, the circuit court in which the
ame may be pending when this act takes effect t, may, at its
liseretion, proceed to try and dispose of the case, or transfer
t for trial to the court of the county or corporation in which
t would be properly tried under the provisions of this act.
Any prosecution for a capital felony pending in a circuit
ourt, shall remain and be tried therein.

d. Nothing in this act shall be construed to affect the ju-
risdiction which the cireut court of the city of Richmond
now has over criminal proceedings against convicts in the
penitentiary.

G. This act shall be in foree on and after the first day of
July, eighteen hundred and sixty-seven.