^DECEMBER TERM, 1838.

JUDGBS PRBSBNT.

Smith,

*Daniel,*

*Lomax,*

Scott,

Leigh,

*Christian,*

*Allen,*

*Mason,*

*Douglass,*

*Nicholas,*

*Clopton.*

#### Sperry v. Commonwealth.

December, 1838.

[33 Am. Dec. 261.]

Criminal Law — Felony —Presence of Accused — Record.* —Tn a prosecution for felony, the accused must be arraigned and plead in person, and in all the subsequent proceedings he must appear in person, not by attorney ; and such appearance in person must be shewn by the record.

*220Writ of error to a judgment of the circuit superiour court of law and chancery for ■Cabell county, rendered against the plaintiff in error at April term 1838, upon an indictment for stealing an iron gray mare of the value of 60 dollars, the property of Gewis Bench. The accused being found guilty by the jury, was sentenced to imprisonment for five years in the penitentiary.

The indictment was found at September term 1837 ; and at that term the prisoner was led to the bar in custody, was arraigned, and pleaded not guilty. Whereupon, on his motion, the cause was continued till the next term.

The record then states, that at a circuit court continued and held for Cabell county on friday the 27th of *April 1838, “ came as well the attorney for the commonwealth, as the prisoner by his attorney, and thereupon came a jury,” &c. who, having heard the testimony and arguments of counsel, retired to consider of their verdict, and not agreeing on that day, were adjourned until the next, when they again appeared in court and rendered their verdict; “ whereupon the prisoner was remanded to jail.”

When brought into court, on a subsequent day of the term, to receive his sentence, the prisoner moved the court to grant him a new tidal, on the ground that the verdict was contrary to the evidence; which motion being ■overruled, he excepted, and set out in his bill of exceptions all the material facts and circumstances proved on the trial. But the cause was decided in this court without reference to the evidence.

In his petition to the general court, the prisoner assigned for error the refusal of the circuit court to grant a new trial; insisting that the whole evidence only shewed him to have been guilty of a fraud, and did not warrant a conviction of felony. Bor this “ and other errors apparent on the face of the record,” he prayed a writ of error ; which was awarded.

The cause was submitted by P. R. Grattan for the plaintiff in error,

and the attorney general for the commonwealth, without argument.

*

Criminal Law — Felony—Presence of Accused — Record. — It has been uniformly held in Virginia and West Virginia that, in a trial for felony, it is absolutely necessary to a valid conviction that the prisoner shall he present in court whenever anything is done in his case in any way affecting his interest. Thus, it is the well established practice that a prisoner accused of felony must be arraigned in person, and must plead in person ; and, in all the s ubseqnent proceedings, he must appear in person, not by attorney ; and such appearance in person must be shown by the record. Hooker v. Com., 13 Gratt. 764,766, and foot-note; *foot-note*to Jackson v. Com., 19 Gratt. 656 ; Lawrence v. Com., 30 Gratt. 850, 852 ; Bond v. Com., 83 Va. 586, 3 S. E. Rep. 149 ; Shelton v. Com., 89 Va. 453, 16 S. E. Rep. 356 ; Snodgrass v. Com., 89 Va. 688, 17 S. E. Rep. 238 ; Coleman v. Corn., 90 Va. 636, 19 S. E. Rep. 161 ; Gilligan’s Case, 99 Va. 828, 37 S. E. Rep. 962; State v. Strauder, 8 W. Va. 691; State v. Conkle, 16 W. Va. 745, 748, 749, 754 : State v. Conners, 20 W. Va. 6: State v. Sutfin, 22 W. Va. 773 ; State v. Greer, 22 W. Va. 811; State v. Parsons, 39 W. Va. 466, 19 S. E. Rep. 877. All these cases cite the principal case as authority on this sub iect.

The record must show affirmatively, not only that the prisoner was present in person, but that he. in person, put in the plea of not guilty. State v. Allen, 45 W. Va. 69, 30 S. E. Rep. 211, citing the principal case.

But the .whole record may be looked to, and, if anything appears in it from which the prisoner’s presence must be necessarily inferred, it is all that the law requires. Benton’s Case, 91 Va. 794, 21 S. E. Rep. 495, citing the principal case. See also, cases collected *va. foot-note*to Lawrence v. Com., 30 Gratt. 846.

Por a collection of cases holding that the fact that the accused was present was shown by the record, *see foot-note*to Hooker v. Com., 13 Gratt. 763.

Before the prisoner’s arraignment, an order may be made in his absence. Boswell v. Com., 20 Gratt. 860, 865.

In Gilligan’s Case, 99 Va. 816, 37 S. E. Rep. 962, it was held that, after judgment, it is not error to hear the statement of counsel for the prisoner in his absence that he has no bills of exception to offer.

GOMAX, J.,

delivered the opinion of the court. — The first error relied upon in the petition in this case, the refusal of the court below to grant a new trial, this court has deemed it unnecessary to consider, because it discovers in the record another error, which supersedes the -necessity of considering the first.

The well established practice in England and in this state is, that a prisoner accused of felony must be arraigned in person, and must plead in person; and in *all the subsequent proceedings, it is required that he shall appear in person. This practice is stated in 1 Chit. Crim. Gaw, 411, 414. It is there laid down, that the accused in capital felonies cannot be found guilty in his absence ; that it is necessary he should personally attend; and that the fact of such attendance should appear on • the record. The rules .applicable in England to trials for capital felonies are believed, in the general, to be equally applicable in this state to all felonies punishable by confinement in the penitentiary. In looking into the english forms of entries, it will be found that the appearance of the accused is carefully stated upon the ‘record to have been in his proper person. 4 Chitt. Cr. Law, 268.

The principles on which this practice is founded are supposed to be too obvious to need explanation or illustration.

In this record it is stated, that on the 29th of September 1837, the accused was led to the bar in custody of the keeper of the jail, and thereupon was arraigned, and pleaded; and on his motion the cause was continued till the first day of the next term, and thereupon he was remanded to jail. And afterwards, at a circuit court &c. held on the 27th of April 1838, “came as well the attorney for the commonwealth, as the prisoner by his attorney, and thereupon came a jury,” &c. The jury not agreeing upon their verdict on that day, were adjourned over until the next day ; and afterwards, on Saturday the 28th April 1838, the record proceeds to state that “the venire impanelled upon the trial of this cause on yesterday, again this day appeared in court, and retired to consider of their verdict, and after some time returned into court, and on their oath do say, ‘We of the jury find the prisoner, Allen M. Sperry, guilty of the felony charged, and do ascertain the period of his- confinement in the public jail and penitentiary house to be five years ; and we further find that the mare stolen *has been restored to the owner thereof. ’ Whereupon the prisoner was remanded to jail.

If it can be inferred, from the circumstance that the prisoner was remanded to jail, that he was personally present during the proceedings on the 28th of April, when the verdict of conviction was found, there is no' such circumstance stated in the proceedings of the preceding day. The' only statement in regard to the appearance of the prisoner on that day, is, that he appeared by his attorney ; without any circumstance stated from which it can necessarily be inferred that he was personally present. An appearance by attorney cannot imply that the prisoner was personally present in court: and therefore the record is deficient in what the law regards as essential to be stated insuch a case.

Eor this error, therefore, the court is of opinion that the judgment must be reversed, and a venire facias de novo awarded.