Commonwealth v. Lovett , 2 Va. 74 ( 1817 )

The prisoner was brought before an Examining Court for Norfolk Borough, on the 27th October, 1815, on a charge of Larceny, and was remanded to the Superior Court for a trial for the crime. The first regular Term of the ^Superior Court (in May, 1816,) was not holden, on account of a contagious disease in the town where it was appointed to be held ; the second regular Term was also not holden in October, 1816, in consequence of the sickness qf the Judge ; but a Special Session of that Court was held, on the 27th January, 1817, under the authority of the warrant of the Judge of that Court, in conformity with the Act of 1814, ^(a) for the trial of all persons charged with offences punishable capitally, or by imprisonment, and who had been imprisoned in the Jail of such Court, or let to bail previous to those regular Terms. At that Special Session, the prisoner was not indicted or tried. At the regular Term of that Court, in May, 1817, the prisoner was indicted ; he pleaded in bar of the Prosecution, that he had not been tried, at or before the third Term of the said Superior Court after his examination of the said Larceny before the said Justices, and prayed the judgment of the Court that he might not now be charged, and that he might be discharged of the crime. The Attorney for the Commonwealth replied specially to the plea, setting forth that the Court was not held at the regular Terms aforesaid, and that at the Special Session the witnesses against the prisonerdid not attend, and could not be procured in time to enable the Attorney to indict him. The prisoner demurred to the replication, and there was joinder. The Superior Court being of opinion that the correct construction of the 10th section of the Act, entitled, “An Act directing the method of proceeding against free persons .charged with crimes,” &c. ^(b) should be settled, adjourned to this Court the question, “ whether the demurrer filed by the said John Lovett, in this Case, ought to be sustained by the Court, and the said John discharged from this prosecution ?” That section declares inter alia, “ and if he be not tried at or before the third Term after his examination before the Justices, he shall be forever discharged of the crime.”

The following was the judgment of the Court:

“This Court is of opinion, and doth decide, that the Special Session of the Superior Court of Norfolk county, appointed *and held in January, 1817, as set forth in the pleadings in this Case, was not the third Term of the said Court after the said prisoner was remanded for trial by the Examining Court, within the meaning of the tenth section of the Act of Assembly, inti-tuled, ‘An Act directing the method of proceeding against free persons charged with certain crimes,’ &c. but that the said Special Session was a substitute for the second regular Term of the said Court, and that, therefore, the demurrer of the prisoner to the replication of the Commonwealth, ought to be over-ruled.”

(a) Acts of 1814, ch. 30 ; now incorporated in the 1st Rev. Code of 1819, ch. 69, § 28, p. 234.

(b) 1 Rev. Code of 1792, ch. 74, § 10, p. 103-4 ; now see 1 Rev. Code of 1819, ch. 169, § 28, p. 607.