"dicted in the said superior court for murder on account "of the same homicide, is entitled to be bailed by "such superior court after the discharge of the grand "jury, who found no other indictment against him.” Not only these questions, but generally " any and all "the other questions of law arising upon the said plead"ings" were adjourned by the circuit court to the general court, "with the consent of the said Samuel Myers the "prisoner."

This case was argued at the November term, 1811, of the general court, by Nicholas, attorney general for the commonwealth, and by Taylor, Tazewell, and Wirt for the prisoner.

Nicholas. The first and most important point to be discussed is, whether the examining courts can discriminate between the higher and lower offences-can acquit of the higher grade, and send on for the lower. This question arises from the second plea filed by the prisoner.

The plea of autrefoits acquit must consist of two matters, 1st. Matter of record, to wit, the former indictment and acquittal and before what justices, and in what manner by verdict or otherwise. 2d. Of matter of fact, to wit, the identity of the person acquitted, and of the fact of which he was acquitted. 2 Hale P. C. p. 241. As to the

first matter he referred to Hawkins, B. 2, ch. 35, sect. 1st. to shew that to make the plea good, the defendant must shew that he has been found "not guilty" on an indictment free from error, and well commenced before a court having jurisdiction of the cause. 4 Black. Com. 335. also proves that the plea cannot be good unless the court had competent jurisdiction of the offence. He contended that the examining courts had not competent jurisdiction finally to acquit, before the act of Jan. 1804, gave them that power. Before that period they were merely intended to examine into offences, and to prevent an innocent man from be harassed by enquiries before single justices. They could not acquit, because they could not condemn. See Tucker's note to 4 Black. 335. The life of a prisoner was never brought into jeopardy by an examination before the county court, and therefore the plea of autrefoits acquit was not a good one. The principle on which that plea is allowed by common law, is that a man should not be brought into danger of his life for one and the same offence more than once. Hence it is that the finding ig. noramus on an indictment by a grand jury does not operate as an acquittal, 2 Hale, 246, and he may be again indicted, for he has not been legitimo modo acquietatus. So also, in the case of a coroner's inquest, finding facts not amounting to felony, he may notwithstanding be indicted. So it is, where the party has been acquitted on an insufficient indictment, there the plea of autrefoits ac

quit is not good. Ib. 248. Thus it was in Virginia before the act of 1804. What difference does that act make? The only new provision in that act is to be found in the 3d section, (2 Rev. Co. 38.) by which it is declared that if any person" be acquitted, or discharged from further "prosecution" by the proper examining court, he shall not be again examined, or tried for the same offence, but may plead such acquittal or discharge in bar. It is understood that this provision was introduced in consequence of decisions of the district courts that a discharge by the examining courts was no acquittal. That section then containing a new principle, and the examining courts being unknown to the common law, and deriving their whole authority from the statute, the prisoner must bring himself within the letter of the law. Although the examing courts are now vested with the acquitting power, it does not follow that they have the power of discriminating between different grades of the same offence. The statute gives the one power; it does not give the other, nor can it be implied. The examining court is directed to consider," whether the prisoner may be discharged "from further prosecution, or may be tried in the county,

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or corporation, or district court." The power to discharge from further prosecution does not involve the power to discriminate. If they do not consider that he ought to be discharged, two other alternatives present themselves: viz. to send on for trial either to the inferior,

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or to the superior court. In ascertaining which of these two alternatives should be adopted, he admitted it might be necessary to discriminate, so far as to ascertain whether the prisoner should be tried in the one court or the other, and so far that power is given, on the principle that it is necessary to carry power actually given (to wit, the power of remanding) into effect. But where the whole crime and every grade of it, as is the case with every grade of felonious homicide, is triable in the superior courts only, there the power to discriminate between those different grades is not given, either expressly, or impliedly, because it is not necessary to carry into effect the given power of remanding to the superior court for trial.

He urged as a strong circumstance, that the court was to be held "for the examination of the fact," which seemed to exclude the idea of their being empowered to distinguish between different degrees of criminal motive. The terms "discharge from further prosecution" clearly import, a total discharge, and not a partial one, except in the cases already mentioned. In a case like this, said Mr. Nicholas, the first thing that the examining court has to enquire into is this, "Shall the prisoner, who is charged "with felonious homicide, be discharged from further

prosecution?" If they think that he is not altogether innocent, if they think that he is guilty of manslaughter only, they cannot discharge him from further prosecu tion. The next enquiry is, "to what court shall he be

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sent for trial?" In answering this question, it is not necessary to decide on the grade of homicide, because each grade of it is to be tried in the superior court. He argued that the very construction of the courts, prove that they are not vested with this important power of discriminating between different degrees of an offence. The courts are composed of plain men not versed in the nice distinctions of the law: they are to meet within ten days at the most, after the commitment, so that if their decision be absolutely final on the higher grades of offences, the accused will frequently escape merited punishment, because there is not time to collect evidence entirely satisfactory, which may more easily be done when the superior court has general cognizance of the whole offence. Grand juries and petit juries, it is true, have the discriminating power, but it is by them exercised under the control of judges supposed to be well acquainted with legal distinctions. For these reasons he thought that the demurrer to the second plea ought to be sustained, and that this court ought to certify that the examining court have no power to acquit for murder,' and remand for manslaughter.

2dly. He objected to this court giving any opinion on a point not specially adjourned. An adjourned case is not like an appeal. In the latter, the whole record must be looked into; in the former only the point adjourned. He therefore thought it improper to go into the enquiry,