
    * Jones v. Commonwealth.
    November Term, 1878,
    Richmond.
    t. Criminal I^aw — Indictment—Verdict of Jury. — J was indicted for the malicious stabbing, &c., of W, with intent to maim, &c. The jury found J “guilty of unlawful cutting, as charged in the within indictment,” &c. The language, “as ‘ charged in the within indictment,” has reference both to the cutting and the intent, and is a sufficient finding of the intent with which the unlawful act was done, to meet the requirement of the statute.
    2.- Same — Statute—Separation of Jury. — The statute having dispensed with the necessity of keeping the jury together in prosecutions where the penalty cannot be death or confinement in the penitentiary for ten years, if the jury, ,in a prosecution for malicious stabbing, &c., with intent to kill, &c., find a prisoner guilty of unlawful cutting with in- • tent, ‘ &c. Upon a motion to set aside the verdict and grant a new trial on the ground of the separation of the jury before the verdict was rendered, the court is not bound to set aside the verdict for . that cause, if it approved the verdict, and is satisfied it was fairly and honestly- rendered, and that neither the commonwealth nor the prisoner had been damnified by the separation.
    3. Pleading’ — Motion to Set Aside Verdict— Proofs. — Upon a motion to set aside the verdict on the ground of the 'separation of the jury, the prisoner must prove the separation by affidavits or proof in court, and the offer to prove, which the court refuses, under the circumstances, to ’ hear, is not sufficient to enable the appellate court to act on the question. The exception should show the proof
    In April, 1878, the grand jury for the corporation court of the town of Danville found an indictment against James Jones; that he, on the 27th of March, 1878, in and upon one Henry Clay White did make an assault, and him, the said Henry Clay White, feloniously and maliciously did stab, cut and wound, with *intent the said Henry Clay White then and there to maim, disfigure, disable and kill, &c.
    In July, 1878, the prisoner was tried on this indictment, and the jury, not agreeing on their verdict on the first day, were committed to the custody of the sergeant of the town, who was directed to keep them together, without communication with any other person. On the next day they returned their verdict in the words following, to-wit: “We, the jury, find the prisoner, James Jones, guilty of unlawful cutting, as charged in the within indictment, and fix the term of his imprisonment at one year in the penitentiary.”
    The prisoner thereupon moved the court to' set aside the verdict and grant him a new • trial on the said indictment, on the ground that the verdict was contrary to the law and evidence; but the court overruled the motion. To which opinion of the court the prisoner excepted, and asked the court to certify the facts proven; but the evidence being conflicting, the court refused to certify the facts.
    The prisoner then moved the court to set aside the verdict and grant him a new trial, upon the ground that the jury separated before rendering their verdict; but no witness having been introduced, and no evidence' offered to show that the jury had separated, and the court deeming this to be a case in which malicious cutting was not shown, overruled the motion. And five days after the motion was made and after the court had delivered its ' judgment on such motion, the prisoner offered then to prove such separation; but the court refused to hear evidence after its judgment had been rendered. And the prisoner again excepted.
    The prisoner then moved in arrest of judgment, on the ground that the verdict did not show the intent with which the unlawful cutting was done, nor state *the name of the person cut. But the court overruled the motion; and the prisoner again excepted.
    The court having sentenced the- prisoner in accordance with the verdict, he applied to a judge of this court for a writ of error; which was allowed.
    
      B. B. Bouldin, for the prisoner.
    
      The Attorney-General, for the commonwealth.
    
      
      Criminal Law — Jury—Statute—Separation. — In Jones v. Commonwealth, 79 Va. 213, the headnote reads, “where the offence tried is not punishable with death, or ten years confinement in the penitentiary an objection that the jury were allowed to separate has no merit, though the court may have ordered that they be boarded at a hotel during the trial.
    
   AndersoN, J.,

delivered the opinion of the court.

This is an indictment for an assault and felonious and malicious stabbing, cutting and wounding with intent to maim, disfigure, disable and kill. It was competent for the jury under this indictment not only to have acuitted the accused of maliciously doing the act charged, and to have convicted him of unlawfully doing it with intent as aforesaid, but it was also competent for them to acquit him of the felony and to convict him of a misdemeanor only. Canada’s case, 22 Graft. 899. The jury by their verdict found “the-prisoner guilty of unlawful cutting, as charged in the within indictment, and fix his term of imprisonment -at one year in the penitentiary.”

It is assigned as -error that the verdict does not find the intent to maim, disfigure, &c., which is necessary to constitute felony. In Canada’s case, supra, the verdict was. “We, the jury, find the prisoner not guilty of the malicious cutting and wounding, as charged in the indictment.” That was construed to ; be a finding of not guilty of a felony; and j therefore the words “as charged in the in- ¡ dictment” must have been understood, as used ; in that connection, with reference to the in- \ tent charged in the indictment and as nega- I tiving it. They could not be understood as nega- . tiving the act of wounding, for the verdict; ^proceeds: “but guilty of an assault and battery, as ^charged in the indictment”— evidently having reference to the act of iding, and not to the intent, in this con- ' ' wounding, .. ... nection; because the jury, by the clause just preceding, had negatived the intent by finding that the act of wounding was not felonious; and it was so construed by the court.

We are of opinion, that in this case the language “as charged in the within indictment” has reference both to the cutting and the intent, and that it is a sufficient finding of the intent with which the unlawful cutting was done to meet the requirement of the statute. Randall’s case, 24 Gratt. 644, is not in point, as the verdict of the jury did not refer to the charge as made in the indictment at all.

But it is also assigned as error that the jury were not kept together, but separated before they rendered their verdict, and that the court overruled a motion for a new trial on that ground.

The act of assembly which provides for the suitable board and lodging of a jury, when in a criminal case they are kept together beyond the day on which they are impanneled, expressly declares that “where the punishment cannot be death, or confinement in the penitentiary ten years, the jury shall not be kept together, but shall be treated as jurors in civil cases, unless the court direct other-(Matthews New Crim. Procedure, p. 91.) If the prisoner had been only indicted j for unlawful cutting, with intent, &c„ the | offence of which he has been convicted by : the verdict of the jury and the sentence of the court, the jury could not have been kept together under this law, unless the court otherwise directed, because for that offence he could not be punished with ten years’ confinement in the penitentiary. And if the court directed that they should be kept together, and its order was not carried out, the court would not be bound to set aside the verdict for that cause, if It approved *of the verdict, and was satisfied that it was fairly and honestly rendered, and that the commonwealth had received no detriment,_ and that the prisoner had not been damnified, by the separation of the jury; although it might deem it proper, to maintain the authority of the court, to impose a penalty upon the sergeant or the disobedient juror, whoever was in fault.

But in this case the prisoner was charged by the indictment with malicious cutting, and for that offence he might have been punished with ten years’ confinement in the penitentiary. The court, therefore, very properly charged the sergeant to keep the jury together, although the charge of malicious cutting in-eluded the charge of unlawful cutting, an of-fence for which the prisoner could not be punished with confinement in the penitentiary for ten years. Canada’s case, 22 Gratt. 899. If that was not done, and the jury separated before they rendered their verdict convicting the prisoner with unlawful cutting, with iu-tent, &c., an offence which cannot be punished with more than five vears hi the penitentiary, is the court bound to set aside the verdict for that cause, whatever may be the state of the case? And is it error if it does not, for which its judgment must be reversed? Has it no discretion? ft may approve of the verdict; may be well satisfied that it is supported by the evidence that the acts charged to have been done were not done maliciously, but unlawfully, and that therefore the prisoner could not be punished by confinement in the penitentiary ten years; and that, therefore, the offence-of which the prisoner was guilty was not an offence upon the trial of which the law required that the jury should be kept together. He is satisfied that the verdict does no injustice to the prisoner or to the commonwealth, but is according to the very right of the case, and that consequently the jury have acted fairly and honestly, and that if they separated they could not have been subjected by reason thereof to any improper influence, *and were not more exposed to such influences than they -would have been if the prisoner had been indicted for the offence only of which he is convicted — in which case they would have been permitted by the express terms of the law to separate. _ These are facts and circumstances under which the court overruled the prisoner’s motion to set aside the verdict and grant him a new trial; and although the court might have deemed it proper, in the maintenance of its authority, to have imposed some penally upon the sergeant or juror, if it appeared that they disobeyed his instructions, we are of opin- :— : r .i... r. ... __ ., ion that if the fact is, as alleged by the prisoner, that the jury separated before rendering their verdict, the court was not bound under the circumstances detailed to set aside the verdict, and that the overruling of the motion for that purpose is not an error for which the judgment should be reversed and a venire facias de novo awarded.

But the court is further of opinion that the prisoner has wholly failed to set forth any ground for his motion. He has furnished no proof of his allegation that the jury were not kept together. He ought to have furnished j evidence of the fact as the basis of his motion, j jn the shape of affidavits, or some other form. The allegation that he merely offered to prove it, after the court had decided the question and overruled his motion, and refused to reopen the case to hear his testimony, is not sufficient. He ought to have exhibited his | testimony and embodied it in a bill of excep-lions, so as to put the appellate tribunal in possession of it, that it might judge for itself whether it established what he alleges. Upon •the whole, the court is of' opinion that there is no error presented by the record for which the judgment should be reversed. Let it be affirmed.

Christian, J., dissented.

Judgment affirmed.  