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1860. July Term.

Bradshaw's Case.

The rule was not intended to apply to criminal cases where more persons than one are indicted, when one only shall apply for a change of venue. In such a case, if the accused makes out a sufficient cause, he is entitled by statute to a change of venue; but the original papers of right appertain to the court which retains jurisdiction over such of the accused as do not desire, or cannot, procure a change of venue. A transcript of the record, which must necessarily include a transcript of the indictment, as well as of all other original papers, is all which can regularly be transmitted to the court to which the venue is changed. The accused who, under such circumstances, asks for a change of venue may be tried on such a transcript, and his consent, if that is to be considered as essential, will be inferred from his appli cation. If the practice was otherwise, the monstrous absurdity might result, that the prosecution against the others accused might be terminated or indefinitely delayed by the measure of grace accorded the one who sought elsewhere a trial which he might not obtain in an impartial manner in the county where the indictment was preferred." He then proceeded to show that the irregularity which had occurred, of sending the original papers to the court to which the venue had been changed, had worked no injury to the plaintiff in error; that the order for the re-transmission of the indictment to the court in which the prosecution originated was right; and that there had been no discontinuance of the case.

There is nothing in the decision of the court nor in its opinion bearing adversely to the case of the plaintiff in error here. He has had no agency in creating the necessity or exigency by which it is sought to justify his trial on a substituted indictment. He is in no degree chargeable with the absence of the original. not procured nor sought a change of venue.

He has

He has

given no consent, express or implied, to be tried on anything short of the original, identical indictment found. The case of The People v. Burdock, &c., 3 Caine's R. 104, cited by the Attorney General, does not necessarily involve the decision that a person accused may, against his consent, be tried on a copy of a lost indictment. The reporter, it is true, in his syllabus states the case as deciding the general proposition that, if a record of an indictment be lost, the court will grant leave to file one nunc pro tunc. But on examination of the case it will be seen that it does not go to any such length. The report of the case is very brief, and I give it entire: "An indictment found against the defendants for a forcible entry and detainer in April term, 1798, had, on being removed into this court, been quashed and restitution ordered, but the record of it could not, on search in the clerk's office, be found. Riker applied for leave to file a record nunc pro tunc, on an affidavit by the attorney employed in the prosecution, disclosing the above facts, and that on examination of his register he found not only that a record had been duly filed, but that he actually obtained an exemplification of it which had been lost. Granted accordingly." When it is seen that in that case the motion was made in 1805 in respect to an indictment found in 1798-which had been long since quashed-it is obvious that the decision then made is no precedent for the case under consideration. It is manifest that there the substituted indictment was to be used for some purpose other than the trial of the person indicted.

The only case which I have been able to find, in addition to those cited at the bar, bearing immediately on the question in hand, is that of The State v. Harrison, 10 Yerger's R. 542. The decision and reasoning of the Supreme Court of Tennessee in that case are strongly in favor of the plaintiff in error in this. In that case, after

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shaw's Case.

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Bradshaw's Саве.

the prisoner had been regularly indicted, tried and found guilty of a felony, by the verdict of a jury, he moved in arrest of judgment, on the ground that there was no bill of indictment on record against him. It appeared that the indictment had been lost or mislaid during the trial, and upon diligent search could not be found; and the solicitor thereupon moved the court to make a copy of the indictment, together with certain affidavits, proving very fully that it was a correct copy, a part of the cause; which was done. The entry made upon the record was as follows: "State v Harrison. The Attorney General appeared in open court, and moved the court that the following copy of the indictment in this case, and the affidavits annexed, be made a part of the record in said cause. Whereupon the court, upon examination and inspection of the same, order the same to be spread upon the minutes and made a part of the record in this cause"; and a copy of the indictment and affidavits annexed was also inserted in the entry. In a bill of exceptions the judge recited that the copy of the indictment was filed upon record by him, not merely from the affidavits," but because the court was fully satisfied that said copy of said indictment, so ordered and made part of the record, was an exact literal copy of the original indictment, not only from the affidavits appended to said copy, but from the recollection and memory of the court itself." The Supreme Court held that no judgment could be rendered against the prisoner upon a copy of the indictment thus spread on the records of the court below, and that the case was one proper for arrest of judgment.

In delivering the opinion of the court, Turley, J., after considering the general power of a court to alter and supply, from its own memory alone, any order, judgment, or decree pronounced by it at the same term, qualifies the concession with the remark that the principle doubtless applies with more force to things which have ema

nated from the court itself, for the reason that the judge may well recollect what he has himself directed to be done, and find it impossible to remember what has been done by others. And he then proceeds to say: "If the indictment could be supplied from the memory of the judge, the record must show explicitly and certainly that it was so done. The recital in the bill of exceptions does not amount to this. To establish the principle that a judge might supply a lost bill of indictment, upon the affidavit of others, independent of his own recollection, would, as we think, be exceedingly dangerous to the lives and liberty of the citizens, and we cannot do so. We think we go far enough in saying this may be done upon the memory of the judge."

The provisions of chapter 180 of the Code, allowing papers, “in any cause," lost or destroyed, to be substituted by an authenticated copy of what is lost or destroyed, or proof of the contents thereof, have obviously no application to the case. Though the language of those provisions is broad enough to,cover the loss of papers in criminal prosecutions, yet, from the general frame and tenor of this chapter, and from its position in the Code, as one of a series of chapters under the title of (51) "Proceedings in civil suits," considered in connexion with the declaration of the design set forth in the preamble of the Code, to arrange the general statutes of the Commonwealth "in appropriate titles, chapters and sections," it is manifest that the remedy proposed by the provisions in question applies to the loss or destruction of papers in civil causes only.

Upon the whole, it seems to me that the plaintiff in error is entitled to a judgment of this court in his favor. There is no legislative provision regulating the practice in his case; there is no authoritative decision in England or Virginia ruling the point raised by him against him; whilst the weight of the few adjudications on the

1860.

July

Term.

Bradshaw's Case.

1860. July

Term.

Bradshaw's

Case.

question by the courts in this country, of which we have any reports, is clearly in his favor. In this state of the law, I do not think we are authorized, by affirming the judgment, to introduce a practice which would tend to impair the efficiency of one of those guards which the law has provided for the protection and security of the citizen. Whenever, on a trial, the original indictment is substituted by parol proof of its contents, the accused is necessarily exposed to the hazard of being tried for, and convicted of, a charge differing, in greater or less degree, from that preferred by the grand jury. To expose to such a hazard an accused who is nowise responsible for the loss or destruction of the original indictment seems to me to be hardly in accordance with the spirit that regulates the proceedings in criminal trials; and I am for reversing the judgment.

J.

The other judges concurred in the opinion of Daniel,

JUDGMENT REVERSED.

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