Commonwealth v. Hale

2 Va. 241

• Court: General Court of Virginia
• Decided: June 15, 1821
• Status: Published

Opinion

But, this Court is further of opinion, that at the time the motion was made for the Writ of Capias Utlagatum, as aforesaid, it was not proper for the Circuit Court to look back into the Record for errors therein; but notwithstanding any such errors, the Writ should have been awarded, if the return of the Exigent had been accompanied by such judgment of outlawry, as the Law requires; which, in the opinion of this Court, is not shewn by the record in this case, inasmuch as the name of the Coroner who pronounced the said judgment of outlawry is not stated. The Court is therefore of opinion, that the said motion for the Commonwealth should be over-ruled, and a Certiorari be awarded, directed to the Sheriff and Coroner of the county of Monongalia,

(c) requiring them to certify the judgment of outlawry, aforesaid, to the said Superior Court more fully; whereupon, if it appear that the said Abraham Hale is outlawed by the judgment of the proper Coroner, a Capias Utlagatam should issue, the errors in the previous process, and returns thereof, being matters of which the Defendant may avail himself, upon being taken, or otherwise appearing. All which is ordered to be certified to the said Superior Court of Law.”

That a Certiorari is proper in such case: See Rast. Ent. 332, a. b.; 2 H. H. P. C. 399; 2 Hawkins, 446, ch. 48, § 22; and 1 Chitty’s Cr. Law.