Ex parte Santee

• Citation: 4 Va. 363
• Parties: Ex Parte Joseph Santee
• Decision Date: 01 January 1823
• Court: Supreme Court of Virginia

4 Va. 363

Ex Parte Joseph Santee

Supreme Court of Virginia

January 1, 1823

This was a Case adjourned hither by the Circuit Court of Henrico by whom a Habeas Corpus had been awarded to the Jailor of Petersburg, to bring up the body of the petitioner. The question was, whether he was acquitted, under the circumstances of his case, of the crime for which he was indicted, and entitled to his discharge. A majority of the Court, consisting of Holmes, Brockenbrough, Smith, Dade and Summers, were of opinion that he was not acquitted. White Allen, Semple and R. E. Parker, contra.

Dade J., stated the Case and delivered the opinion of the Court. R. E. Parker, J., dissented.

OPINION

This is a question growing out of the petition of Joseph Santee to be discharged from imprisonment upon a Writ of Habeas Corpus, and adjourned to this Court by the Superior Court of Law for the county of Henrico. On the 18th July, 1822, an Examining Court for the Corporation of Petersburg adjudged the prisoner to be sent on to the Superior Court for trial, upon a charge of grand larceny. The stated Term of the Superior Court for that town, which should have occurred in the month of October following, was not held by reason of the sickness of the Judge assigned to that Circuit. At the ensuing Spring Term the prisoner was indicted, and the case continued upon the motion of the Attorney for the Commonwealth. The illness of the Judge's family in October, 1823, again prevented the holding of the regular Court in that month. So that three Terms have elapsed since the prisoner's examination before the Justices without his having had his trial, if the word " Term" is taken in the restricted sense contended for by the prisoner's Counsel, and for this cause he claims his discharge under the 28th section of the Act of Assembly regulating criminal proceedings against free persons. ^[a] The decision of this case turns upon the construction which shall be given to the word " Term" in the section just referred to. If that word shall be considered to mean the stated time allotted for the holding of the Court, whether the Court shall have been held or not, then the prisoner ought to be discharged. If, on the contrary, it is to be regarded as designating the actual session of the Court, or in other words, if the words Term and Court are to be Considered as convertible, then he cannot be discharged. If the word Term had a fixed and definite meaning, in all cases whatsoever, this Court would probably never have had to decide this question. But, upon reference to the books, we can derive no satisfactory conclusion from them. An author, indeed, defines the Terms, as " those spaces of time wherein Courts of Justices are open for all that complain of wrongs and injuries, and seek their rights by course of Law or Action, in order to their redress; and during which, the Courts in Westminster Hall sit, and give judgments," & c. ^[b] and this definition favors the construction which would make them synonimous with Courts. But it cannot be denied, that in common parlance in some of the Statutes, and amongst the Law Writers, the word has been often indiscriminately used to express the actual session of the Court, and the stated time when it should sit. This gives room for construction, and imposes the necessity of enquiring into the reason of the Law, of considering the word in the context, and comparing the relative provisions of the section, so as to ascertain the sense in which the word was used by the Legislature in this particular Law, and upon the result of this inquiry, the decision of this question turns.

And first as to the spirit of the Law: It seems to the Court, that whilst it has an eye to the solemn duty of protecting the public against the wrongs of those who are regardless of their obligations to society, and to the delays which the Commonwealth may unavoidably encounter in prosecuting breaches of these obligations, it is studious to shield the accused from the consequences of the laches of those to whom the duty of conducting the prosecution may have been assigned. The public has rights as well as the accused, and one of the first of these is, that of redressing, or punishing their wrongs. It would not seem reasonable that this right, so necessary to the preservation of society, should be forfeited without its default; and distinct indications of this are found in the first clause of this section, in which it is provided that the prisoner shall not be bailed at the first Term, upon his not being indicted, if it appear by affidavit that the witnesses against him cannot be procured in time; that at the second Term, though not yet indicted, he shall not be discharged, if he himself hath prevented the attendance of the witnesses against him. And even although not tried at the third Term, he shall not be discharged if the failure proceed from a continuance on his own motion, or the inability of his jury to agree on their verdict. In all these cases, the Law, although tender of the liberty of the citizen, prefers the rights of the Commonwealth. From which we infer, that it was never intended that these rights should be forfeited, without some degree of fault. And none can be imputed to a cause growing out of the Act of God, in bringing sickness or death on the officer who should have held the Court. But the context of the section, and giving their due weight to its several provisions, seem to the Court to establish that the word Term is here used as synonimous with Court. If the prisoner be not indicted at the first Term after his examination, he is to be bailed, unless the witnesses against him could not be produced in time. And here by the word Term, the actual sitting of the Court is clearly intended; because to entitle himself to this discharge on bail, the prisoner is to do an act, viz. petition for his trial on the first day of the Term, which it is impossible to do unless a Court be holden; and in like manner the cause for which he may lose this privilege, the non-attendance of the witnesses against him, necessarily supposes the actual sitting of the Court. And here it might well be asked, what good reason can be given, why the meaning which the word Term has in this first clause, should be changed in the two following? It would seem more proper to attribute consistency to the Legislature in its use throughout the section. In the second clause, it is declared that if the prisoner be not indicted at the second Term, he shall be discharged without bail, unless the attendance of the witnesses against him appear to have been prevented by himself. But how is it possible that this fact should be ascertained if there be no Court? or, indeed, where is the necessity of the provision in case no Court be held? In the first clause we hold it clear that the word Term means Court, because an act is to be done by the prisoner, and may be counteracted by the Commonwealth, which necessarily supposes a Court. And in relation to the second Term, we in like manner see that the prisoner's motion for his discharge, if made in Court after the dismissal of the Grand Jury, without an Indictment having been found, may be repelled by proof that he prevented the attendance of the Commonwealth's testimony; and so if that fact were spread on the record, or proved before the Judge out of Court, upon a Habeas Corpus, it would prevent his discharge. We think, therefore, that this provision in behalf of the Commonwealth, is equally indicative of an actual sitting of the Court being in the contemplation of the Legislature, as the like provision in the first clause. We will not repeat this course of reasoning with respect to the third clause, but will content ourselves with remarking, that the saving of the Commonwealth's right to the longer detention of the prisoner, because he had himself obtained a continuance, or his jury could not agree, are precisely like the two former as to their effect in proving the actual sitting of the Court to have been intended by the Legislature, as this saving is otherwise impossible.

The reasons in support of the opinion that, in the first clause of the section under consideration, by the word Term, a Court is to be intended, (and from which it will be remembered that the court insist the meaning should not be changed throughout the section,) are corroborated by reference to the 28th section of the Circuit Court Law. ^[c] That Law provides a Special Court to be held for the trial of one accused of a capital crime, imprisoned or bailed previously to a Stated Term, which from any cause was not held. Now, suppose one in jail, under the sentence of an Examining Court: the next regular Term, is from any cause not held. If the construction of the prisoner's Counsel be correct, the prisoner is entitled to bail, and accordingly, immediately after the expiration of the time assigned for holding the Court, he applies to a Judge, who bails him to appear at the next Stated Term, and thus the Special Court is forestalled. But this argument may be exhibited in a still stronger aspect. Suppose a prisoner shall not have been tried for two Terms, and that at the third Term there shall be a failure to hold a Court. So soon as the cause is removed, the Judge orders a Special Session. But when the prisoner is brought before him, he pleads the lapse of the three prior Terms, without his having been tried, in bar of his further prosecution, and if the proposition of the prisoner's Counsel be true, his plea must be allowed; and yet this vain and nugatory Special Court is expressly required by the 28th section, above referred to. These two Acts having been under the consideration of the Legislature at the same time, viz. at the Revision in 1819, ought to receive such construction as will make...