Opinion
01-01-1823
Francis Lindsay v. The Commonwealth
This was a petition for a Writ of Error to a judgment of the Superior Court of Law for Pittsylvania county, whereby the petitioner was sentenced to the Penitentiary for seven years, for stealing a gelding, of a sorrel colour, the property of Charles Kesee. To the Indictment filed against him, he pleaded auterfoits acquit, and also not guilty. In his first plea, he set forth that he was on the 14th February, 1823, charged on oath before a Justice of the Peace with having stolen a certain sorrel horse, the property of Charles Kesee: that he was arrested by the warrant of the Justice, who committed him to jail, and issued his warrant to summon the Justice to meet on the 21st February, for the examination of the fact with which he stood charged: that the Court was held, the said Francis set to the bar, in custody of the jailor, charged with the felony aforesaid, and thereupon the said Court was of opinion, that the said Francis Lindsay ought not to be remanded to the Superior Court, & c. and discharged him from further prosecution out of custody, which he is ready to verify and prove by the record thereof. The plea then avers the identity of the person and felony, as set forth in the Indictment, and record of the Examining Court, and concludes, " wherefore, since the said Francis Lindsay hath been heretofore discharged of the felony aforesaid, he prays the judgment of the Court here, if he the said Francis Lindsay should be again charged with the same felony, of which he hath once already at another time been discharged." The Attorney for the Commonwealth replied, admitting the identity of the person, that there is no such record as in the said plea is alleged. The Court, upon inspection of the record of the proceedings of the Examining Court, decided that there was no such record, to which the prisoner excepted. The record of the Examining Court contained the following documents: 1. The warrant of commitment, which recites that the prisoner was charged with having stolen a certain sorrel horse, the property of Charles Kesee. 2. The warrant summoning the Justices, which recites that Francis Lindsay was this day committed to jail, and it appearing to the Justice that the felonious offence with which he stands charged, ought to be examined into, & c. 3. The proceedings of the Court, as follows: " At a Court held, & c. for the examination of Francis Lindsay, charged with felony. Present, & c. The said Francis Lindsay was led to the bar, in custody of the Jailor of this county, and thereupon the Attorney for the Commonwealth, with the assent of the Court, saith he will not prosecute further in behalf of the Commonwealth, against the prisoner. Whereupon the prisoner is discharged from custody."
The issue on the plea of not guilty, was tried, and the prisoner convicted. The petitioner insisted before this Court, that there was error in not supporting his plea of auterfoits acquit.
The Act of Assembly is in the following words: " If any person charged with any crime or offence against the Commonwealth, shall be acquitted or discharged from further prosecution, by the Court of the County or Corporation in which the offence is, or may by Law be examinable, he or she shall not thereafter be examined, questioned, or tried for the same crime or offence, but may plead such acquittal or discharge in bar of any other or further examination or trial for the same crime or offence."
OPINION
Per Curiam.
A Nolle Prosequi entered by the Attorney for the Commonwealth, and a consequent discharge from custody by the Court, is not an acquittal or discharge from further prosecution. The plea was therefore not supported, and there is no error. Writ of Error refused.