The prisoner was indicted in the Superior Court of law for Henrico county, in April 1812, for the felonious stealing, taking and carrying away from the treasury of the commonwealth, and from the custody of 272 John Preston *the treasurer, a large sum of money, to wit, seventeen thousand dollars in bank notes, and seventeen silver crowns of the value of eighteen dollars seventy cents, of the current coin of this commonwealth. He was convicted by the jury, and on the last day of the term, the following order was made by the superior court.
“At a superior court of law held for Henrico county at the Capitol in the city of Richmond, on Saturday, April 25th, 1812.
“John M’Caul, jate of the parish of Henrico, in the county of Henrico, yeoman, who stands convicted of grand larceny, being again led to the bar in custody of the jailor of this court, by his counsel moved the court to set aside the verdict found against him by the jury, and to award him a new trial, on *72the ground of misbehaviour of one of his jurors as set forth in the affidavits of James Bailey, Benjamin Sheppard, and John Morris, officers of the court, and of Frederick Clarke and John Fee juryman, and of Peter Moseley tavern-keeper, all of which affidavits are ordered to be filed among the records of this court: whereupon the court doth certify that the trial of the said M’Caul continued from Tuesday the eighth day of the court to Friday night the eleventh day of the court, and that this court by consent of the prisoner, his counsel and the attorney for the commonwealth, on the second, 273 *third and fourth days of the trial made a temporary adjournment of short duration about the hour of two in the afternoon,* and that a general order was given by the court to the jury and the officers on the first evening of the trial, that the jury should on their being adjourned, be kept together, and not separated; and the court with the consent of the prisoner doth adjourn to the general court, as a question of novelty and difficulty, this point: “Whether such a separation as is proved by the aforesaid affidavits, copies of which are hereby directed to be transmitted to the said g-eneral court, be sufficient cause for vitiating and setting' aside the verdict aforesaid.”
The following are true copies of the affidavits referred to in the foregoing order.
James Bailey made oath in open court, that on the second day of the impannelling the jury in the caseof the commonwealth against M’Caul, he as sheriff was attending the jury from the room in which the court sat to one of the jury rooms, for the purpose of receiving some refreshments, ordered by the court during the temporary adjournment 274 *of the court; that before they got to the jury room, one of the jury, to wit, Frederick Clarke, said that he would go home, and get his dinner ; he was admonished not to separate himself from the jury ; he insisted on going and advanced towards the steps which led down from the portico of the Capitol to the square; at the head of the steps this affiant took hold of his arm, and told him he must not go ; he said he would. The affiant returning to the jury whom he had left in the midst of the crowd, and finding Clarke not to obey the order, returned to the doors to see where he was, looked down towards the main street when he saw said Olarke going down the Capitol hill, and he had then gotten about half way to Bosher’s shop. In about fifteen or twenty minutes he returned. Whither he went this affiant knows not.
Benjamin Sheppard being sworn, said that he was not in the Capitol at the time of Mr. Clarke’s separation from the jury on Wednesday, he having gone to the Virginia inn to order some refreshments for the jury. When he returned, Mr. Bailey informed him that Mr. Clarke had absented himself. Question: What sheriffs were attending the court on that day at the time of the adjournment ? Answer: Mr. Bailey and myself only. Question: When you went to the jury room, did you find Mr. Clarke among the jury ? Answer: I did not. Mr. 275 Clarke returned *to the jury room when the rest of the jury were nearly done taking their refreshments.
John M. Morris being sworn, said that he knew of no separation of the jury sworn on the trial of M’Caul other than those stated in *73the affidavit of Frederick Clarke, except that Nathaniel Charter (another jury-nran) went attended by the deponent to visit his family on Thursday morning, stating that one of his children was very sick ; that he was absent from the jury room about twenty minutes. That said Charter was not in his presence during all the said twenty minutes, he having gone up stairs to see his family, while the affiant remained below. Question : Do you know who were in the room up stairs to which Charter went ? Answer: I do not. Question: How long was he out of your presence ? Answer: About five minutes. The deponent knows nothing of the separation of Mr. Clarke from the rest of the jury on Wednesday, the deponent not being in the Capitol at the time of adjournment on Wednesday.
Frederick Clarke being sworn, said that he was absent from the other members of the jury sworn for the trial of John M’Caul about twenty minutes on Wednesday last, and that it was during the adjournment of the court for the said space of twenty minutes. That during the said absence he was asked by several persons whether the 276 *case of M’Caul was determined, to which he answered no, and avoided any further conversation on the subject. That he had no conversation with any officer engaged in conducting the prosecution, or with any witness sworn thereon, or with any other person whatever except that before stated ; nor did he eat or drink at the expense of any person or persons but himself. That on Tuesday night the jury were charged by the court not to separate, but on Wednesday the deponent believes that no such charge was given. And the deponent returned to the jury as soon as he had taken some refreshments, understanding the design of the court to be that the jury should have an opportunity of getting some refreshments. That he thinks it probable that previous to'his separation from the jury some one member of the jury observed that he ought not to separate himself from the other members. That the sheriff opposed his separation from the jury, but the witness stated to him that he had been unexpectedly sworn on the jury, and having left some important business in such a state of derangement as required his presence, he told the sheriff that' if any officer could go with him, he the deponent would prefer it, otherwise he must go alone. Question : Did Mr. Bailey the sheriff observe to you that there was no officer at that time attending that could go with you ? Answer: I do not positively remember, but believe not. Question : Did Mr. Bailey take hold of your arm at the top of the step to prevent your going ? 277 Answer: *He did. Question : Did you go down for refreshment alone ? or partly to attend to 'business of your own ? Answer: Not for refreshments alone, but partly to attend to my own business. Question : While you were at dinner was the trial of M’Caul mentioned ? Answer: It was as I have before stated, and no other way. Question : Were you separated from the jury at any other time.? Answer: Not without an officer. On Thursday night Mr. Taylor, Mr. Bryan, and the deponent, went with an officer to Doctor Wardlaw’s shop (for some medicine which was necessary for one of us) leaving the other jurors with another officer.
John Dee being sworn, said that when Mr. Clarke was about to separate himself from the jury, the deponent took him by the arm, and said to him that it was very improper for him to do so, the court having directed that they should remain together. Mr. Clarke replied that his goods at that time for ought he knew were exposed in the street to the negroes, and he must go.
Peter Moseley made oath in open court, that on Wednesday or Thursday last about two o’clock, two or three minutes before two, Frederick Clarke the juror came to his house, the Columbian Hotel in Cary street, where the said Clarke boards, not attended by any officer, or any other member of the jury, 278 and asked if dinner was ready. *The affiant answered he believed it was, and he had the bell rung, and dinner brought on the table. The boarders assembled at the ringing of the bell, and Mr. Clarke, who the affiant believes had gone to his own room, came down, and dined in their company. About twenty-three minutes afterwards, the said Clarke left the room, the affiant stating to him at the time that he believed he had overstaid his twenty minutes. The affiant does not know that the said Clarke conversed with any person on the subject of M’Caul’s case, and believes that said Clarke, except when he was dining, remained in his own room ; but affiant was not in the dining room during dinner, and therefore does not know what the subjects of conversation were.
The affidavits ended here.
At the same time the following order was directed to be entered on the order book of the superior court of law, but by mistake it was not entered: the clerk however transmitted a copy of the order to the general court, and the question was there argued and decided, though the decision on this point was not entered on the records of the general court.
“Be it remembered that on the seventh day of the superior court of law held 279 for Henrico county, the counsel *for John M’Caul, a prisoner against whom two bills of indictment for, larceny had been found at the same term' by the grand jury, before the said prisoner was arraigned, moved the said court to quash the said indictments on the ground that it did not appear by the record of the Hustings court held for the examination of the said John M’Caul that he was remanded to this court for the crime of larceny, but only for felony generally. The record of the said Hustings •court is as follows :
“At a court of Hustings called and held for the city of Richmond at the court-house, on Saturday the 2d day of November, 1811, for the examination of John M’Caul who stands accused of felony. The prisoner was led to the bar in custody of the sergeant of this city, and thereupon sundry witnesses being sworn, and examined, the attorney. *74for the commonwealth, and the prisoner by his attorney fully heard, the court is of opinion that the said John M’Caul is guilty of the offence aforesaid. Therefore it is considered that he undergo a trial therefor before the next superior court of law for Henrico county directed to be holden at the Capitol in this city, and he is thereupon remanded to jail.”
James Gray a witness for the commonwealth being duly sworn, deposeth and saith, that on the morning of Sunday, the day after the prisoner’s commitment to 280 jail, this deponent *received a message from the prisoner to see him at the prison, in consequence of which the deponent went to the prison, and saw the prisoner, who when in the act of shaking hands with the deponent put into his hand a small note and a pair of sleeve-buttons—the purport of which note was as follows: “Callón Maria Overton—shew her my sleeve-buttons, get the contents of a small trunk, go to the woods but not - up the canal, burn the trunk and destroy the lock.” The deponent went to the house of Maria Overton and was informed by her that the prisoner had left with her a package which she had put out of her possession, but that she would procure it and bring it to the deponent, which she accordingly did—and on Friday evening, at the request of Francis Taylor, the deponent returned the package to the said Maria Overton.
Preston Smith, Carlton Radford, Hezekiah Henley, John A. Richardson, Bartlett Still, George Hawkes, James Vaughn, Peyton Drew, James Gray, Francis Taylor, and Robert Elam, recognized to appear at the superior court as witnesses for the commonwealth against the prisoner.
Teste, Th. C. Howard, Clerk.
The warrant of commitment under the hands and seals of Thomas Wilson, recorder, and of David Bulloch, is in the following words :
*City of Richmond, to wit,
“To the keeper of the jail of the said city. We herewith send you the body of John M’Caul taken and brought before us, charged with having feloniously broken into an apartment of the treasury office of this commonwealth and stealing and carrying away from thence in bank notes and specie a sum of money to the amount of about seventeen thousand dollars, the property of the commonwealth, or of their treasurer. These are therefore in the name of the commonwealth to require you to receive into your jail and custody the body of the said John M’Caul, and him safely keep until he be thence discharged by due course of law. Given under our hands and seals this 26th October, 1811.
“Thomas Wilson, Recorder. (Seal)
“David Bulloch. (Seal)”
It appeared to the said court that on the examination of the said prisoner a variety of witnesses were examined and sworn and recognized to appear at this court, but the attorney general who attended the said examination, dispensed with the taking the depositions of the said witnesses.
The court overruled the said motion to quash the indictment, whereupon the counsel for the prisoner prayed that his motion, and the judgment of the court overruling 282 *the same, be spread on the record. And on this twelfth day of the court, after the said prisoner had been convicted by the jury, on the motion of the said prisoner, the court doth adjourn this question of law to the general court, for novelty and difficulty.
1st. Ought the order of an examining court, remanding a prisoner for trial to the superior court of law, expressly shew for what species of felony the prisoner is so remanded ?
2d. If the said order of the examining court remands a prisoner for trial, for felony generally, and the grand jury find a bill of indictment for larceny, ought the court on motion to quash the said indictment, if it appear by the warrant of commitment, the warrant of summons, or other evidence dehors the said order, that the prisoner was in fact examined and remanded for the of-fence of larceny.
This cause was argued at June term, 1812, by Wirt, Hiort and Bacchus for the prisoner, and by Nicholas, attorney general, on behalf of the commonwealth.
Mr. Wirt said that he should contend, that the examining courts of this commonwealth were courts of records ; and that the superior courts .ought not to proceed with an indictment against an individual 283 charged with any ^'felonious offence, unless it appears certainly from the record that he has been previously examined and remanded for the same offence. It is the established maxim in England, that, whenever a jurisdiction is erected with power to fine and imprison, that is.acourt of record. 1 Salkeld, 200. The court of the county constitutes the examining court, and there can be no doubt that the county court is as a court of record, it having the power to fine and imprison. The examining court, it is true, is convened for a special purpose, but it is attended by the regular officers of the county court, the sheriff and the clerk, and the latter is directed to make a record of their proceedings. It is still the county court, though convened for a particular occasion. A still stronger argument may be derived from the act of assembly, passed January 24th, 1804, (2d Vol. Rev. Code, p. 38.) By that 'act, the examining court has the final power of acquittal, and it is clear that the plea of autrefoits acquit must be supported by record. 2d Hale, P. C. 241, 2, 3. Hawkins, Book 2d. Ch. 35. Sect. 2. Eeach’s edit. If such plea can only be supported by record, and the examining court has the power to acquit, it necessarily follows that it must make a record of the acquittal, and-is consequently a court of record.
The-fifth section of the last mentioned act declares that no person shall be 284 tried in the district court for treason *or felony, until he shall have been pre*75viously examined by the court of the county or corporation. This court is now required to give a construction to this clause, and in doing so they will give it such an one as will best answer the intention which the legislature had in view, and will collect that intention from the cause or necessity which produced the clause in question. 6 Bacon, 384. It is certain that this fifth section was enacted in consequence of a previous decision of the general court, that no examining court was necessary previous to an indictment for felony. This legislature considered this as an evil, and they have here provided the remedy ; their intention is to prevent any trial for treason-or felony without a previous examination. How shall this intention of the legislature be carried into effect? If the record now produced from the examining court be sufficient to justify the circuit court in proceeding against this prisoner for larceny, the intention of the legislature will be frustrated. It will proceed to a trial for larceny, although it is not proved that the prisoner has been previously examined for larceny. This intention of the legislature cannot be carried into effect, unless it appears for what offence the party has been examined, or with what criminal facts he was charged in the court below, and remanded to the superior court. On this record there is not a single fact spread, nor does it appear whether he was examined for murder, burglary, larceny, or any particular 285 *species of felony. If M’Caul had been indicted for murder in the circuit court, that court would have had the same reason to believe that he had been examined for that offence as for larceny, for any thing that appears on this record. But it may be said that other evidence may be produced to prove that he was examined for the same larceny with which he is charged in the indictment. The ready answer is, that the proceedings of a court of record can only be proved by the record, and there can be no averment against the truth of a record.
The examining courts are vested with the powers of acquitting, and remanding. í f the court acquits, it is certainly essential that the offence of which the party is acquitted be stated on the record, or that the facts which constitute the offence should be specially alleged; if this is not done, in vain will the unfortunate prisoner plead that he has been heretofore acquitted, and produce the record to prove it. The attorney would say to him, the record does not support your plea, and you cannot resort to other evidence to prove it. This principle is carried so far in England, that where a man is acquitted on an indictment which is bad in substance, such an acquittal is no bar to a subsequent indictment. Hawk. B. 2. Ch. 35. Sect. 8. Suppose an indictment found for felony, and the prisoner ac-286 quitted thereof, it is clear *that such an acquittal is no bar to another indictment for larceny. On the same principle, if an examining court acquits a person charged with felony, such acquittal is no bar to another examination of the same person for the crime of larceny. If then in the exercise of the acquitting power which is vested in these courts, it be necessary that the record should specify the offence, surely it is equally necessary, that in the exercise of their remanding power, that specification should appear on the record. The same measure of justice meted out to the commonwealth in the one case should be extended to the prisoner in the other.
It will be alleged, that the uncertainty of the record may be supplied by averment. This position is not supported by the authorities. Averments are only allowed to support the record in matters of inferior importance, and not in those matters of fact which form the gist of the offence. Thus, if in the first record the party be called yeoman, and in the second gentleman, he may make good the variance, by averring that he only was meant under each addition. So in the case of an acquittal of a murder of a person unknown, and the party be afterwards indicted for the murder of a person described by his proper name, he may plead the acquittal in bar, averring that both indictments are for the same murder. Hawk. 2d Book, Ch. 35, Sect. 3.
*This fifth section of the act of 1804, is a provision which concerns the public good, and in favour of the prisoner; the court ought so to construe it, as that it may as far as possible attain the end proposed. 6 Bacon, 388. The good intended was, that no man should be put on his trial for life or liberty, until he has been examined by the court below. The better mode of effecting this end is to describe the fact, or offence charged with particularity and certainty in the record; for if it is described by some generic term, it becomes impossible to ascertain whether he was examined for the same offence for which he is indicted.
The record of the examining court is not helped by the warrant of commitment. That warrant is the property of the jailor, and forms his justification for detaining the prisoner. It does not shew what offence the party is charged with before the court, but only on what account he was committed. When the examining court sat, they had no right to call for that warrant; although they had a right to call for the warrant which convened them. If the superior court refers to the warrant of commitment, it may happen that the party may be committed for one offence, (as burglary,) and remanded for trial for another, as larceny, and thus the superior court might entertain jurisdiction of an offence, for which he was not examined.
*The law directs the depositions of the witnesses to be taken by the examining court: if this had been done, Mr. Wirt said, it was probable this point would never have been made, because all that he contends for is that the certainty of the offence ought to appear on the record. But in this case there was only a fragment of a deposition taken, which does not prove any felony whatever.
As to the question, whether this matter ought to have been pleaded by the prisoner, *76or whether the indictment ought to have been quashed on motion, he had only .to say, that it would be hard to require a prisoner, who is not acquainted with the forms of special pleading, to file a plea in abatement. It is the duty of the court to see that the prisoner has been regularly examined, and this duty ought to be performed, whether it is brought before the court by a plea, or by motion, or without any plea, or motion whatever.
Another important question adjourned to this court is, whether the prisoner ought not to have a new trial on account of the separation of his jury. It is a clear principle, that in a case touching life, or member, a jury can never be discharged until they render a verdict. 4 Black. Com. 360. Coke Bit. 227. b. This general rule is never departed from, except in a case of extreme necessity: 289 where *it is impossible to conclude the trial from its great length on one day, the jury may be adjourned over to the next morning, but even then, they cannot be separated. 1st Hardy’s trial, (by Gurney) p. 252-8. The reason why an adjournment of the jury never was allowed, according to the old practice, was, that there might be no improper influence exercised on their minds, and they were not allowed to go out of court, lest they might be accessible. According to modern practice, an adjournment is allowed, when there is a physical necessity for it, but still the substance of the rule is preserved, by keeping them together and rendering them inaccessible. Trial of John Horne Tooke, 1st Vol. p. 167-171, (by Gurney). Mr. Wirt defied the attorney general to produce a single case of life and death, in which a verdict was allowed to stand after a separation. The case in Hale was one of trespass. He said that the case had never been decided by the general court, but that in the case of Randall in the district court of Henrico, judges Nelson and Stuart had set aside a verdict under similar circumstances. In this case the juror Clarke did separate himself from the jury contrary to the directions of the officer. It is true, that he endeavours to exculpate himself, but this ought to have no weight, for his affidavit in such case ought not to have been taken.
Nicholas, attorney general, said that these examining *courts were exclusively created by our statute law, and are unknown to the English laws—to the acts of assembly we must then resort to ascertain their nature and powers. Eormerly, all trials for life and death in Virginia, were had in the general court—it was considered by the legislature, that it was too great a power to lodge in the hands of a single justice of the peace, residing perhaps, in a remote county, to authorize him to commit an individual charged with a crime to the jail in Williams-burg. Such a power vested in a single justice of the peace, who might be really ignorant of the law, was liable to great abuse, and might have been a source of great injustice and oppression. To avoid this evil, the single magistrate was empowered to commit to the county jail only, and to summon a court, consisting of at least five justices, who would probably not be capable of remanding a prisoner for trial, on light and frivolous grounds, and who might therefore be entrusted with the power of committing him to the jail of the general court for trial. This court then was intended as a mere substitute for the committing magistrate in England: there is a considerable analogy between these courts and the magistrates whose powers are defined by the statute of 2d and 3d Philip and Mary; 4 Black. Com. 296 ; and Tucker’s Note: their powers are of the same kind. The acts to be done by them were such as might have been done in pais by the single magistrate in England. They were 291 to take the depositions of witnesses, and recognize them to appear at the general court, and remand the prisoner for trial there. These powers do not make them courts of record ; they do not inflict punishment; they have no power to fine, and none to imprison ; they only commit. If it shall be said, that they have power to imprison for contempt, the ready answer is, that a single magistrate in the county has the same power. It is true, that in the progress of time, they have been vested with the power of final acquittal, but does this make them courts of record? He thought not. If the single magistrate in England should be vested with the power of acquittal, his proceedings being matters in pais, evidence may be given of them. So with the examining courts, the substitute for the committing magistrate. If this opinion be correct, it follows that if the order of the examining court remanding the prisoner, states that he was examined, any evidence, even parol evidence, may be adduced to prove for what particular offence he was examined.
Mr. N. quoted Hawkins B. 2. Ch. 35, to shew that on the plea of autrefoits acquit, you may resort to parol evidence, to help the record in certain cases; and inferred that as it could be done in such cases, it might be helped by averment in this case.
Mr. Nicholas said, that if the court should be of opinion *that he was wrong in the view he had taken of the structure and powers of these courts, yet he should contend, that there was sufficent certainty in this record, to have enabled the circuit court to proceed on the indictment against M’Caul for larceny. In Myers’s case. ;it was decided that the species of the offence need not be defined; all thát cari be necessary is that the facts which constituted the offence should appear in the record. In this case the criminal fact does appear in the warrant of commitment, and that warrant is a part of the record. It is conceded by Mr. Wirt, that the warrant summoning magistrates, is a part of the record; but he contends that the warrant of commitment is the exclusive property of the jailor ; that it is held by him as a justification of the detention of the prisoner. This is not a correct position. By the express direction of the law, the clerk of the examining court is bound to transmit to the attorney prosecuting for the commonwealth, a copy of the warrant of commitment. (See 1st Vol. *77Rev. Code, p. 105. sect. 20th.) How can the clerk transmit the copy of that warrant if it is held by, and in possession of the jailor? This clause proves that it is an official document of the court, and as such is as much a part of the record of that court as a declaration, and the pleadings in a civil suit, or as an indictment in a criminal case. Is the clerk to borrow that warrant from the jailor, and after he has copied it, return it to him again? Certainly not. It is rendered 293 *the official duty of the clerk to copy it, and it certainly cannot be his duty to copy any paper which is the property of any individual. If it is the property of the jailor, he may withhold it and thus prevent the clerk from carrying the provisions of the law into effect. The clerk is to certify it to be a true copy, and that certificate gives it authenticity. The certificate of the clerk would not give authenticity to any private paper. It is moreover safer for the jailor, that he should return it to the clerk when the court is opened, than to retain it in his own possession. When it is so returned, it is filed away amongst the other records of the court, and he can always defend himself against an action by summoning the clerk to attend with the original paper, or perhaps by producing an office copy of it.
He contended that the circuit court ought not to quash the indictment. This was an exception to the jurisdiction of the court, and was therefore proper matter for a plea. 4 Black. Com. 333. The court is not bound ex debito justitiae, to quash an indictment, and generally require the party to plead or demur, wherever the .offence charged is of an enormous, or public nature. Hawk. B. 2. Ch. 25, sect. 126. 3 Bacon 573. also 2 Strange 1268, and 4 Burrow 2116.
With respect to the new trial, on account of the separation *of the jury, Mr. Nicholas said that the old rule was so strict, that it had been of necessity very much relaxed. 7 Bacon 11. Mr. Wirt cannot shew a single adjudged case in the Rnglish books, in which the separation of one juryman from his fellows was considered as sufficient to set aside a verdict. There are many instances in which the jurors may be subject to punishment for misbehaviour, and yet the verdict will stand. See 2 Hale 306, 8. 21st Viner 448. Buller N. P. 308, and 7 Bacon 11, 12. The court ought to see that the spirit of the rule is observed: if there has been no improper influence exercised, the purity of the verdict is not affected. There is a case stated by Bord Hale in his Pleas of the Crown, which decides the question now before the court. A juror retired from his companions to drink ; on his return he denied on oath that he had spoken with the defendant, and the verdict was received, though the juror was fined, 2 Hale 296. It is true that this was a case of trespass ; but Bord Hale writing on criminal law, and shewing how jurors ought to conduct themselves in criminal cases, cites this case with approbation. The authority of Bord Hale, whose humanity and wisdom are well known, will not be disregarded.
Hiort, for the prisoner, to prove that the examining court is one of record, referred to the county court law. 1st Rev. Code, Ch. 67 : the examining court emanates from 295 *the county court, and is of the same nature with the stock from which it springs. The plea of autrefoits acquit can only be proved by record; it would be a cruel dispensation to a prisoner to allow any parol evidence, or any thing less than a record to prove his acquittal ; for the magistrates who acquit him, and the witnesses who are present will die, but the record never can die : it operates as a perpetual proof of his innocence. He contended that according to the act of congress, any court of law which has a seal is a court of record. To shew that the indictment might be quashed on motion he referred to 2 Strange 1268, Rex v. Trevillian. He referred to Trials per Pais, p. 203 to 213, to prove that the verdict ought to be set aside, and in p. 207 he said there was a case in which chief justice Rolle decided that the affidavit of a juror ought not to be received to make good his own verdict.
Bacchus, for the prisoner. He did not expect to hear a doubt that the examining court was one of record. In Myers’s case, Mr. attorney general contended that the . examining courts were courts of record, and that the plea of autrefoits acquit was not good unless the prisoner had the record in hand to support it. 3 Black. Com. 24, shews that a court of record is one in which the acts and judicial proceedings are enrolled for a perpetual testimony, and memorial; which rolls or records cannot be questioned. The proceedings of the examining courts 296 are enrolled, *and their truth cannot be questioned. They are therefore courts of record.
No one doubts that the regular county court is a court of record. But by the act of 1800 (Rev. Code, p. 402) if the examining court fails to meet on the day appointed, all the recognizances entered into before the single magistrate shall stand obligatory to the next court, and the examination shall be had at such next court. The next court here meant is the regular county court. Is it not monstrous then to say, that one of these courts is a court of record, and the other is not, and thus to give two several rules on the same subject. One man is examined before the called court, and it is not necessary to shew by the record for what offence he is remanded, but another is examined before the ordinary county court, and it is necessary to shew on the record for what he was remanded ! The general rule is that county courts are of record, and whoever alleges that examining courts are not, must shew by what law the exception to the general rule is made.
There is no analogy between the statute of Philip and Mary, and our acts. Under that statute the magistrates must send on the original depositions, but the examining courts send on copies, retaining the originals.
*78*3 Black. 25, shews that courts not of record are courts of private persons; the examining courts are composed of regularly commissioned justices, and their duties are altogether of a public nature.
These courts are sometimes convened for the purpose of trying slaves ; they are then courts of oyer and terminer, and may not only finally acquit, but finally condemn. As such they are certainly courts of record, and this proves that the- circumstance of convening them for a particular purpose does not take away that quality.
The record of the examining court ought to shew enough to enable the prisoner to plead it in bar of any future prosecution for the same offence. The depositions (he thought) were no part of the record: the depositions may vary from each other; one may prove a felony of one kind, and another of a different kind, and so it will be impossible for the superior court to ascertain for which felony he is remanded for trial, unless the examining court express on the record for what offence he is remanded. The judgment of the examining court ought to be so clear as to disdain the support of depositions. But here the deposition proves nothing.
Mr. Bacchus contended that there being a plain defect *of jurisdiction,, the indictment ought to have been quashed. 2 Strange 1088. 1 Burrow 389. 3 Bacon 573.
As to the new trial, the case was clear. It ought not to be put on the prisoner to prove that the conduct of the juror during his separation was improper. If he separates at all, he will converse, and if so, hints may be dropped which may have an improper influence.
Wirt, in reply to the attorney general, said that it is certainly proper that the warrant of commitment should be retained by the jailor for two purposes ; first, that it may appear to the judges, on a habeas corpus, that the prisoner is detained for a legal cause, and for this purpose it is necessary that the warrant be special, 2 Hale 122; and, secondly, that the jailor may be able to defend himself on a prosecution for false imprisonment, and for this it is not necessary that the'warrant should be special. 1 Hale 584; Burn’s Justice, Commitment, sect. 3. The warrant of commitment, is not the basis of the authority of the examining court; but the warrant summoning the magistrates is, and therefore the latter is part of the record, though not the former. The warrant of commitment spoken of in the 20th section of the act, referred' to by Mr. Nicholas, is the remanding order of the examining court itself.
If a vague remanding order can be helped, by the warrant *of commitment, so may a vague entry of acquittal. The consequence is, that the muniment of his defence, against an action of false imprisonment, may be drawn from the jailor, by his adversary. Again, if this warrant is part of the record, great injury may be done to .the prisoner, for he may be committed for one offence, and remanded for another ; thus, the prisoner may be committed for burglary ; the examining court are of opinion, in point of fact, that he is not guilty of burglary, but of larceny, and remand him for felony ; here if you resort to the warrant, for certainty, he will be indicted for a different crime from that for which he was remanded. So of a commitment for highway robbery and murder, the court being of opinion that he is guilty of the robbery only, yet send him on for felony, and because he was committed for murder, he may be indicted, tried, and hung for murder. Thus the warrant will not produce that certainty which ought to be found in all records, and the object of creating examining courts will be entirely frustrated.
Mr. Wirt said he was at first inclined to think that the depositions might be considered as a part of the record, but on reflection he thought they could not. Nothing can be considered as a part of the record but the warrant convening the court, and the entry of the proceedings, and judgment of the court itself.
*With respect to the case in 2 Hale 296, quoted by Mr. Nicholas, to prove that there ought not to be a new trial, Mr. Wirt said it was a solitary case, not found in the year books, and moreover was a civil case. The case quoted in 7 Bacon 12, was a civil case from the common pleas. In opposition to these cases, he referred to the opinion of tlm judges, in a case of life and death, in which it was clearly laid down that it was illegal to discharge a jury in a capital case, lest there may be corruption, and tampering with the jury. (See 4 State Trials 231. Lord Delamere’s case.)
This case was decided by the general court, at the same term at which it was argued; present, Judges Nelson, White, Stuart, Holmes, Brockenbrough, Semple, Johnston, Smith and Randolph. On the question respecting the propriety of quashing the indictment, the following was delivered by the presiding judge, as the judgment of the court, although it was not entered on the order book of the court, for the reason before mentioned.
“ 1st. That it ought to appear in the record of the proceedings of the examining court, for what fact the prisoner has been remanded, and that a superior court of law hath a right to look into the warrant, summoning the magistrates, which is a part of the record, 301 but not into *the warrant of commitment, that being no part of the record.”
“2d. That (although in general whether the court on motion of the prisoner, will quash an indictment, rests in the sound discretion of the court,) in this case, the court ought to have quashed the indictment, if the fact could not be ascertained, without looking into testimony dehors, which is not allowable ; that in those cases in which the quashing rests in the discretion of the court, and the court may quash, or put the party to plead, if the court thinks the fact when pleaded would avail the prisoner, the court ought to advise him to plead the same.”
On the question respecting the propriety of *79granting the prisoner a new trial, the following opinion and judgment, were delivered by Judge Nelson, the presiding judge.
This is a case of very great importance, and the ability of the argument on each side, is commensurate with its importance; although decisions upon a similar point have been made, one in the district court by two judges, and another in a circuit court, by one judge, it is not known to have been before decided by the general court, which is the court of the last resort in criminal cases.
*On the one side, the punishment of. one who may have committed a crime, and on the other the legal safeguards to the accused, the preservation of the palladium of life and liberty immaculate, and the purity of the stream of justice, are involved in it.
That the person accused is to be convicted or acquitted by the evidence given in his presence ; that the minds of those who are to decide are before the trial to be free from prejudgment ; that in the course of the trial no impression ought to operate on their minds, except what is derived from the testimony given in court; that the jury shall continue impartial and unbiased; that to ensure this, they should not be allowed by the court to separate, are points acknowledged by all.
The object is impartiality ; and keeping the jury together until they agree without communication with others, is the means by which this all important object is to be attained.
The keeping them together, has been dispensed with in cases of great necessity ; but impartiality never. It is contended in the argument on one hand, that they are to be kept entirely inaccessible, so that communication with them should be absolutely impossible ; and on the other, that a mere separation, unless it be proved that 303 there has *been some conversation, or tampering with a member of the jury, shall not vitiate the verdict, and that there must be proof of this to work such effect. By the point adjourned in this case, the court is not called on to decide whether the verdict shall be set aside, unless access be impossible. They are called on to decide only whether such a separation as is proved by the affidavits, in this case, is a sufficient cause for vitiating it. One of the jurymen in this case during a temporary adjournment of the court, went to the house at which he boarded, without the officer of the court, notwithstanding the admonition and personal attempt of the officer to prevent it, and according to the affidavit of the officer, was absent 15 or 20 minutes. This officer did not attend this juryman, but returned to the other jurymen. By the affidavit of a person who stated to the jurymen, above alluded to, the impropriety of his separating from the rest of the jury, (the court having directed that they should remain together) it appears that the jurymen stated that his goods (for ought he knew) were exposed in the street to the negroes.
The person with whom this juryman boarded, states that the juryman was in his room when he was called to dinner. He appears by this affidavit to have been at the boarding house about twenty six minutes. The affiant believed that the juryman, except whilst dining, remained in his 304 *own room, and states that the affiant was not in the dining room, and does not know what were the subjects of conversation during dinner.
The juryman separated himself whilst the sheriff was going with the jury towards the jury room. The officer returned from the steps of the portico of the Capitol, (as understood by the court) to the rest of the jury, whom he had left in the midst of the crowd, and then returned to the door, and saw the juryman going down the Capitol Hill.
Another juryman, in the morning of another day of the trial, attended by the officer, went to visit a sick child. They were absent about twenty minutes, and the officer remained below, whilst the juryman went up stairs to see his family, and was absent from the officer about five minutes. Is the separation proved by this testimony then sufficient cause for setting aside the verdict ?
The majority of the court is of opinion, that proof of actual tampering, or conversation on the subject with a juryman, is not necessary to set aside the verdict; and the propriety of this opinion they think results from the nature of things, and the rules of evidence.
From the mode in which collusion and tampering is generally carried on, such 305 circumstance is generally known *to no person, except the one tampering, and the person tampered with, or the person between whom a conversation may be held, which might influence the verdict. If you question either of these persons on the subject, he must criminate, or declare himself innocent, and you lay before him. an inducement not to give correct testimony. The old rule was that the jury on no occasion should separate. I mentioned (though it was with difficulty that the rule has been at all relaxed) that it is relaxed only in cases of imperious, or perhaps of unavoidable necessity. But by allowing that a jury may separate without necessity, and that their verdict shall stand, unless the party accused, who in these cases is in the custody of law, can shew that the jury not only have separated, but that they or a member of it has also been tampered with, or held communication on the subject; this great barrier against oppression may gradually be sapped and undermined, and the bulwark cannot long remain. Such a precedent would be productive of evils incalculable, and too great, for the court by its decision to allow a door to be opened for them. Every danger, and particularly in such a case as this, should be watched, and opposed in the beginning. The court will preserve, “ with fear and jealousy,” and will not expose the trial by jury in criminal cases, to such risque of contamination, as arises from ths affidavits in this case. If the court had without necessity suffered a juryman to go home without an officer (which it 306 would *never do), it would vitiate the verdict. There is as much danger from a juryman’s separating, without the act of *80the court, as if it had been done by such act.
Although there might be and probably was no tampering with any juryman, in this case, yet in a free country, in deciding a particular cause, the decision is to be according to general principles as applied to that case; and more good will arise from preserving the sacred principle involved in this case, than evil from granting a new trial, although in this individual instance, a verdict has probably been given by twelve men in fact unbiased by the separation.
The opinion of the court is, “that such a separation of the jury as is proved by the affidavits is sufficient cause for vitiating and setting aside the verdict aforesaid ;” which is ordered to be certified to the superior court of law, for Henrico county.
This order was made at the request of the counsel, to enable the court to proceed with the cause to a late hour in the night, it being seen that the crowd of witnesses, and the length of the examination, would spin it out to the length of three or four days.