1860. July Term. Rider's ch 192, § 14, enacts "that if a person commits simple larceny of goods and chattels of less value than twenty dollars, he shall be deemed guilty of petit larceny, and confined in jail not exceeding one year, and, at the discretion of the court, may be punished with stripes." The offence, not being punishable with death or confinement in the penitentiary, is a misdemeanor, according to the Code, ch. 199, § 1, defining felonies and misdemeanors. But as the Revised Code of 1819 imposed a heavier punishment upon conviction of a like offence the second time, the Code likewise (p. 752, ch. 199, § 27) provides that "when any person is convicted of petit larceny, and it is alleged in the indictment on which he is convicted and admitted, or by the jury found, that he has been before sentenced in the United States for the like offence, he shall be sentenced to be confined in the penitentiary for one year. The argument of the Attorney General that the law ascribes the punishment to the offence, and declares the offence to be felony where that punishment is death or confinement in the penitentiary, and does not refer to the person, is answered by the terms of the 27th section, which describes the offence as a like offence. In either case the act is similar, and the Code makes the commission of the first act a misdemeanor. But if the lighter punishment fails to reform, and the party is guilty of a like offence a second time, such second offence is punishable with confinement in the penitentiary, and is a felony. Being so punishable, the County and Corporation courts cannot take cognizance of the cause. The indictment having alleged that, in addition to the offence for which he was then charged, he had been before sentenced for the like offence, the charge so preferred amounted to felony, which could be tried in the Circuit court only, and that after being examined by a called court, unless such examination had been dispensed with. If the offence, though punishable as aforesaid, could be regarded as a misdemeanor, it would follow that under the provisions of the Code, ch. 199, § 25, 26, after repeated convictions and sentences, a white person might be sentenced by the County court to be confined in the penitentiary for life. If the legislature intended to confer such jurisdiction on the County and Corporation courts, it would have done so expressly, and not left it to implication. It was suggested in argument that the provision contained in the Code, ch. 199, 87, could not be reconciled with the construction that would make this offence felony, to be tried in the Circuit court only. The section referred to punishes the principal in the second degree as if he were the principal in the first degree. He is punishable for his own offence as the principal in the first degree, but is not sentenced according to the sentence which may be imposed upon the principal offender. Being the first offence in his case, he may be punishable as for a misdemeanor, whilst the principal offender may be sentenced to a different punishment. And so it would be in cases under the 25th and 26th sections of chapter 199, imposing additional punishment after previous convictions and sentences. I think the Hustings court had no jurisdiction to proceed with the case; that the indictment charged the accused with a felony, and when returned by the grand jury it should have been treated as a presentment, and steps taken in conformity with the Code, p. 771, ch. 207, § 15. It therefore seems to me that the judgment of the Circuit court, affirming the judgment of the Hustings Court, was erroneous, and should be reversed. And this court proceeding to render such judgment as the Circuit court should have done, it further seems to me that the judgment of the Hustings court, overruling the motion 1860. July Term. Rider's 1860. July Term. Rider's of the plaintiff in error in arrest of judgment, was erroneous, and should be reversed and annulled; that all proceedings on the verdict should be stayed or arrested; that the verdict and all proceedings subsequent to the finding of the indictment be set aside, and the cause be remanded to said Hustings court for the accused to be dealt with according to law. The other judges concurred in the opinion of Allen,P. JUDGMENT REVERSED, all proceedings subsequent to the indictment set aside, and cause remanded to the Hustings court. Lewisburg. BRADSHAW V. THE COMMONWEALTH. September 3d. 1. In a prosecution for a felony or misdemeanor, if the indictment is lost at any time before the trial, though after arraignment and plea, the party cannot be tried. 2. The act (Code, ch. 180, p. 679) authorizing a lost record or paper to be substituted by an authenticated copy or proof of its contents applies only to civil cases, and does not extend to records or papers in criminal proceedings. At the June term, 1857, of the Circuit court for the corporation of Lynchburg the grand jury found an indictment against Robert Bradshaw for keeping and exhibiting a certain gaming table called a faro bank, "a true bill." And at the same term Bradshaw appeared, and pleaded" not guilty" to the indictment; and on his motion the case was continued until the next term. Between this time and the June term, 1860, the indictment was lost or abstracted; so that, when the case was called for trial at the latter term, it could not be produced; and, on the motion of the attorney for the Commonwealth, he was permitted to file the affidavit of the clerk, stating the loss, and giving what he believed to be substantially a copy of the lost indictment. To the filing of this affidavit the defendant excepted. On the trial of the case the attorney for the Commonwealth, having tendered to the court the affidavit of the clerk, offered him as a witness to prove the contents of the indictment mentioned in the affidavit, in order that 1860. July Term. 1860. July Terin. Bradshaw's Case. the case might be proceeded in, heard and determined upon the proof of the contents thereof. To the introduction of this evidence the defendant objected; but the court overruled the objection and admitted the evidence. And the defendant again excepted. The trial then proceeded, and the jury found the defendant guilty, and assessed his fine at one hundred dollars. And the court rendered a judgment upon the verdict against the defendant for the fine of one hundred dollars, and adjudged him to be imprisoned in the jail of the city for two months. To this judgment Bradshaw applied to this court for a writ of error, which was awarded. J. O. L. Goggin and Kean, for the appellant, insisted : 1st. That the court had no authority at common law to proceed in the trial of a party in a criminal case without the indictment which had been found by the grand jury. They referred to the case of Ganaway v. The State, 22 Alab. R. 772, in which it was held that when an indictment is lost or destroyed it cannot be substituted on satisfactory proof of a copy. In Texas the case is provided for by statute, and the court held in the case of The State v. Elliott, 14 Texas R. 423, that the mode provided by the statute must be pursued. They referred also to Doty v. The State, 7 Blackf. R. 427; and insisted that though the syllabus of the case of The People v. Burdock, 3 Caine's R. 104, seemed to allow a copy to be filed, yet the case showed that the motion was made in an ended cause years after it was ended, and that the record was wanted, not for the trial of the party, but to be used in some other proceeding. 2d. They insisted, further, that the statute (Code of 1849, ch. 180, § 1, p. 679) authorizing the proceeding upon an authenticated copy of a lost paper, or the proof of its contents, did not apply to proceedings in a crimi |