Opinion
01-01-1822
The Commonwealth v. James Mortimer
The prisoner was indicted before the Superior Court of Law for Ohio county, for the felony of setting fire and burning the barn of Josiah Thompson. He was acquitted by the jury. The prisoner then moved for his discharge, but the Attorney for the Commonwealth presented to the Court a transcript of the Record of the Examining Court, whereby it appeared that the prisoner was remanded to the Superior Court to be tried for the offence of setting fire to and burning the barn of Josias Thompson, and moved the Court to remand the prisoner to jail until he shall be legally acquitted and discharged of the said offence. That Court adjourned the questions arising from the motion, to the General Court, for its opinion on the following points:
1. Whether the acquittal of the prisoner, under the circumstances of the case, would be a good bar in Law to any Indictment which may hereafter be exhibited against him for burning the barn of Josias Thompson, that being the offence for which the Examining Court remanded him for trial in this Court.
2. Whether the prisoner ought now, on his motion, to be discharged from all further prosecution, and to enable the General Court to decide fully on those points, it is ordered to be certified, that upon the trial had against the prisoner as aforesaid, after the jury was impanelled and sworn, several witnesses were called and sworn for the Commonwealth, and Mr. Thompson only examined; he proved, that on a particular day his barn was burnt, and stated various circumstances tending to prove that the prisoner had set fire to and burnt the said barn: he was then asked by the prisoner's Counsel what was his name; he answered, it is Josias Thompson; and, thereupon, the prisoner's Counsel moved the Court to instruct the jury, that evidence of burning the barn of Josias Thompson, would not support the Indictment in this case, it charging a different and distinct offence. The Attorney for the Commonwealth admitted that the prisoner's Counsel was correct, and said he had made a mistake in drawing the Indictment, and should offer no other evidence, and consented that the jury might find a verdict of " not guilty," without retiring, which was done.
OPINION
White, J.
1. That the acquittal of the said James Mortimer, of the offence charged in the aforesaid Indictment, under the circumstances set forth in the record, would not be a good bar, in Law, to an Indictment which may hereafter be exhibited against him for burning the barn of Josias Thompson.
2. That the said James Mortimer ought not now to be discharged from custody. Which is ordered to be certified.