Dulin v. Commonwealth.1

• Decision Date: 10 January 1895
• Citation: 91 Va. 718,20 S.E. 821
• Parties: DULIN. v. COMMONWEALTH.1
• Court: Virginia Supreme Court

20 S.E. 821

91 Va. 718

DULIN.

v.COMMONWEALTH.¹

Supreme Court of Appeals of Virginia.

Jan. 10, 1895.

Habeas Corpus Proceedings—Former Jeopardy —Delay in Indictment—Change in Court's Jurisdiction—Transfer of Case—Effect.

1. In November, 1893, petitioner was committed for murder, and indicted at the next term of the court. He then demanded to be tried in the circuit court, whereupon he was remanded to jail for trial in that court. At the next term of the circuit court, held in the same month, the cause was continued for the commonwealth. At the next term of the circuit court, in May, 1894, the court dismissed the indictment of its own motion, in the absence of the prisoner and over his objection, because it had no jurisdiction to try the case, but without prejudice to the right of the commonwealth to arrest, indict, and try the accused. After said judgment was entered, another warrant was sworn out against him for the same offense, and upon it he was committed to jail. At the June term of the county court he was again indicted, and upon the calling of the case he pleaded not guilty, and was remanded to jail. Held, on subsequent habeas corpus proceedings, that petitioner was not illegally detained in custody.

2. To make a defense of former jeopardy, the accused must show that he has been put upon his trial before a court with jurisdiction, upon indictment or information sufficient in form and substance to sustain conviction, and that a jury has been impaneled and sworn, and thus charged with his deliverance.

3. Section 4001, Code 1887, requires the discharge of one held under criminal charges if no indictment is found against him before the end of the second term after his arrest. Held that, to entitle one to a discharge under said law, it must appear that he is held by the court whose terms are to be counted; it not being permissible to count the terms of one court, when the prisoner is detained in another.

4. By Act Feb. 12, 1894, the circuit court's jurisdiction to try criminal cases was taken away, but no provision was made for the transfer of cases then pending in said court to the county court. Held, that all such cases fell with the repealed statute, and that the time between such repeal and the time when one held under indictment was again indicted for the same offense could not be considered in determining whether there was a delay in the county to indict the prisoner, under section 4001, Code 1887.

Error to circuit court, Rappahannock county.

Petition by John T. Dulin for a discharge under a writ of habeas corpus. A discharge having been refused, he brings error. Affirmed.

J. C. Gibson, for plaintiff in error.

R. Taylor Scott, Atty. Gen., for the Commonwealth.

BUCHANAN, J. On the 8th day of November, 1893, the plaintiff in error was committed to the jail of Rappahannock county under a warrant of a justice of the peace, upon the charge of murder. At the next term of the county court for that county he was indicted for said offense, and at the same term of the court was arraigned, and demanded to be tried in the circuit court of said county; whereupon he was remanded to jail for trialin that court. At the next term of the circuit court, which was held in the same month, the cause was continued upon motion of the commonwealth. At the following term of the circuit court, which was held in May, 1894, the court dismissed the said indictment of its own motion, in the absence of the plaintiff in error, and over his objection, upon the ground that it had no jurisdiction to try the case, but without prejudice to the right of the commonwealth to arrest, indict, and try the accused for the offense with which he was charged. After said judgment was entered, and before the accused was actually released from custody, another warrant was issued against him for the same offense, and upon it he was committed to jail to answer an indictment in the county court. At the June term of the said court he was again indicted for the same offense. Upon the calling of the cause at that term of the court, he tendered a number of special pleas, which were rejected by the court. He then pleaded "not guilty, " the cause was continued, and he was remanded to jail. Afterwards, on the 19th day of the said month, he presented his petition for a writ of habeas corpus to the judge of the said circuit court. The writ was accordingly awarded, and, the cause coming on to be heard before the judge on the 25th of that month upon said writ, return thereto, and the evidence offered, the judge was of the opinion that the petitioner was not illegally detained in the custody of the jailer of the said county, and therefore ordered him to be remanded to jail. This is the judgment to which the writ of error was awarded in this case.

It is claimed by the accused that the amendment to section 4016 of the Code, approved February 12, 1894 (Acts Assem. 1893-94, p. 270), repealing so much of that section of the Code as conferred jurisdiction upon the circuit courts to try certain criminal cases remanded to such courts by the county courts, had no effect upon the cases then pending in the circuit courts, and that the order of the said circuit court at its May term, 1894, oferated as an acquittal of the accused of the offense for which he is in custody. We express no opinion upon that question of jurisdiction, as it is not necessary to the decision of this case; for whether the circuit courts were deprived of all original criminal jurisdiction by said amendment, or still had jurisdiction to try criminal causes pending in those courts, the order of said circuit court could not operate as an acquittal of the accused of the offense for which he Is in custody. If the circuit court did not have jurisdiction of the case at its May term, it is very clear that it could enter no order that could either benefit or prejudice the accused or the commonwealth; for an order of a court without jurisdiction, except an order dismissing the case, is a mere nullity. See Freem. Judgm. § 116. If it did have the jurisdiction of the case, whatever may be the effect of its order, It could not operate as an acquittal of the accused. The court dismissed the indictment without a trial of the accused, and without prejudice to the commonwealth's right to arrest, indict, and try him for the offense with which he was charged. If the court had jurisdiction of the case, the order of dismissal would have the effect of ending the proceedings commenced in November, 1893, in the same manner as if the indictment had been quashed or a nolle prosequi entered. The accused...