the superior court for a felonious homicide, it was lawful to indict the prisoner for murder, notwithstanding the discrimination by the examining court as to the grade of of homicide, and being so indicted, the said prisoner was not entitled to be bailed on the ground of no indictment being found against him for the offence of manslaughter.

The prisoner having pleaded three pleas in bar, by the leave of the court, in substance as follows:

1st. That the prisoner was charged with the murder of Richard Bowden, examined for the same before a court legally constituted and found not guilty of the murder, and that he ought not to be remanded to the superior court for trial therefor.

2d. That the prisoner was charged with the murder of Richard Bowden, examined for the same before a court legally constituted, and found not guilty of the said murder, and that he ought not to be remanded to the superior court therefor, but ought to be tried for the offence of manslaughter in the superior court of law to be held at Portsmouth, &c.

3d. That he was duly charged, examined and tried for the murder of Richard Bowden before a court legally constituted, and upon this trial and examination was duly

and legally acquitted of the said murder and felony with which he stood charged, and was adjudged by the court not guilty thereof: To each of which pleas, the attorney for the commonwealth demurred generally and the prisoner filed a joinder thereto, and the matters of law arising thereupon having been duly considered; the court doth decide:

That the first plea affording matter in bar of the indictment, and well pleaded, the demurrer thereto ought to be overruled, and the plea held good.

That the second plea, stating a proceeding by the examining court which the court has decided, in answer to the first question, to be one exceeding the jurisdiction of that court, does not afford matter in bar of the indictment, and therefore as to that plea the demurrer ought to be held good and the plea overruled.

That the third plea affording matter in bar of the indictment and well pleaded, ought to be held good, and the demurrer thereto overruled-Which is ordered to be certified to the Superior Court of Norfolk county.

During the arguments of the above case the two cases of Sorrell and Bailey were so often referred to, that it is

thought adviseable to annex them hereto. The former was reported in MS. by Saint George Tucker, Esq. whilst he was at the bar, and a copy of his report was shewn to the general court during Myers's trial; the latter was also reported by him: it will be observed that Bailey's case was not quoted or relied upon as authority, it having been decided by a tribunal inferior to the general court.

THOMAS SORRELL'S CASE,

In the General Court, April Term, 1786. April 6th. THE prisoner was examined before the County Court

of Westmoreland, for the murder of a slave, the property of one Ebenezer Moore. The court adjudged him guilty of manslaughter, and sent him on for further trial. It was moved that he should be discharged, as he could not be punished under the act of 1748, ch. 31, sect. 23. Motion overruled, the court (absent Lyons and Mercer) being of opinion, he might be indicted for murder. The grand jury found the bill against him for murder. Lyons and Mercer being now present, made some objections to the indictment, wishing the point to be reconsidered.

Randolph, attorney general, took the distinction where the manslaughter of a slave is committed by the master of him, the examining court may acquit the criminal fi

nally. But where it is by a stranger, though the court. should conceive the offence to be manslaughter only, yet the acquittal can only after an indictment be upon a trial in this court; for in this instance, the examining courts have no authority to discriminate between murder and manslaughter.

Mr. Lyons. Can you indict a man for a greater offence than the examining court have adjudged him guilty of?

Mr. Attorney conceived he might, for the point whether murder or manslaugher can only be determined here.

Mr. Mercer mentioned the case of the King against Davis, some years ago, in which it was adjudged that it could not be done.

Mr. Attorney. The county courts cannot discriminate between murder and manslaughter in any case except the homicide of a slave by his owner. This power they derive from the particular words of the very clause. They may discharge the prisoner, and such discharge is final, and may be pleaded in bar of any future prosecution for the same offence, but they cannot ascertain the quantum of guilt in his case except in the single instance above mentioned.

Mr. Lyons. According to this doctrine, a man sent hither on a charge of felony may be tried for treason. How is he to know the nature of the indictment you mean to prefer against him, if it rests with the attorney general to charge him as he pleases? Suppose he had applied to be bailed, could any judge of this court have refused it on a view of the record. Surely then he ought not to be indicted for an offence for which he was not bailable.

Mr. Lee for the prisoner. The slave was hired to the prisoner at the time of the homicide. He was therefore sub modo his property. This brings him within the attorney's distinction in favour of owners. An overseer having an interest in the labour of a slave he conceived to be within the policy of the rule.

Mr. Lyons. In the case of an owner, positive and express malice must be proved to convict of murder. But in that of an overseer, implied malice is sufficient; but neither of these cases, (were the law the same in both) will apply. The court delivered their opinions seriatim.

Tazewell Judge. There is no question with me but that an examining court may acquit finally, and discharge a prisoner upon any criminal prosecution, and that such an acquittal may be pleaded in bar of any future prosecution for the same offence. But in this case the court have