Commonwealth v. Christian

The defendant was presented on the 8th November 1848, in the Circuit court for the county of James City and the city of Williamsburg, for unlawfully assaulting and beating Samuel S. Griffin, on the 9th of September 1848, in the city of Williamsburg, within the jurisdiction of the Court. And it was thereupon ordered that the defendant should be summoned to appear on the first day of the next term, to answer the presentment; and process was awarded accordingly. A summons accordingly issued upon this presentment, on the 30th March 1849, for the defendant to appear before the Court on the first day of the following May term to answer of and upon the said presentment. This summons being returned executed, the defendant appeared by attorney on the 5th of May 1849, and pleaded not guilty to the presentment; and issue was thereupon joined, and the case continued till the next term. At the next term, on the 8th of November 1849, on motion of the defendant leave was given him to withdraw his plea; and he thereupon withdrew the same, and moved to quash the presentment, on the ground that the same did not conclude against the peace and dignity of the Commonwealth. And the record states that the Court being of opinion that the defendant ought not to be put upon his trial on the said presentment, because the same did not conclude, "against the peace and dignity of the Commonwealth;" and the attorney for the Commonwealth suggesting that an information might be filed upon the presentment, and that leave would be asked for the necessary process for that purpose, the Court overruled the defendant's motion to quash; and on motion of the Commonwealth's attorney it was ordered that the defendant should be summoned to appear at the next term to shew cause, if any he could, why an information should not be filed against him upon the presentment. A summons was accordingly, on the 1st April 1850, issued under that *Page 633 order, to appear at the following May term, to shew cause why the information should not be filed. The defendant appeared at the May term 1850, in pursuance of the summons, and again moved the Court to quash the presentment; and shewed for cause: 1. Because at the preceding term the defendant had moved to quash the presentment because informal, defective and insufficient, which motion was overruled by the Court, notwithstanding the Court was of opinion that the presentment was informal, defective and insufficient; the Court being also of opinion that though informal, defective and insufficient, yet it ought not to be quashed, but should stand as the foundation of the rule against the defendant for an information to be filed. 2. Because the Court having overruled the defendant's motion at the last term to quash, the presentment was still pending as a separate and distinct prosecution; and that therefore, by reason of the pendency of that other prosecution for the same supposed offence, charged in the information, leave should not be given to file the information. But on this point the Circuit court was of opinion that the whole proceedings formed but one prosecution, and not separate and distinct prosecutions. 3. Because the Commonwealth's attorney having originally elected to try the case upon the presentment, by suing out process thereon to answer the presentment, was not entitled to the rule for the information. 4. Because the said supposed offence in the information must have been committed more than a year before granting the rule to file the information — and so barred by the statute of limitations: referring to 1 Rev. Code, ch. 169, § 60. The Circuit court thereupon adjourned to this Court the following questions: 1. What judgment ought the Court to have rendered at the November term 1849, on the defendant's motion to quash the presentment; and what judgment *Page 634 ought now to be rendered on the defendant's motion renewed to the same effect? 2. Was the judgment of the Court at November term 1849, overruling the defendant's motion to quash the presentment, any good and sufficient reason why the rule to file information should not have been granted; or does that judgment of the Court furnish any good reason now against giving leave to file the information? 3. Does the suing out of process on the presentment to answer the presentment, and the proceedings had on the presentment up to the granting of the rule on the 14th November 1849, furnish any cause or reason against the granting of the rule, or the filing the information? 4. Under the facts and circumstances disclosed by the record, does the act of limitations referred to and relied on by the defendant, protect him against further prosecution by information in the mode and manner proposed, for the said supposed offence in the information charged? The Court is of opinion and doth decide, first, that under the facts and circumstances disclosed by the record, the act of limitations referred to and relied on by the defendant does not protect him against further prosecution by information in the mode and manner proposed for the said supposed offence in the said information charged. Secondly, that the motion of the defendant to quash the presentment ought to be overruled. Thirdly, that the judgment of the Court at the previous term, overruling the defendant's motion to quash the presentment, does not furnish any good reason against giving leave to file the information against the defendant for the offence mentioned in the presentment. And, fourthly, that the suing out process on the *Page 635 said presentment against the defendant to answer the presentment merely, and not to shew cause why an information thereon should not be filed, and the proceedings had on the said presentment up to the granting of the said rule, on the 14th day of November 1849, does not furnish any cause or reason against the granting of the said rule or filing of the said information. Which is ordered to be certified, c. After the Court had decided the case the defendant presented a petition for a rehearing.