
    Nemo v. Commonwealth.
    June Term, 1845.
    (Absent Soabbtjbs, J.)
    i. Criminal Law — Verdict tor Term of Imprisonment Shorter Than the Law Allows — Judgment.—A jury having convicted the prisoner and fixed the term of his imprisonment in the penitentiary for a shorter period than the law allows, it is error in the Court to enter a judgment on the verdict for the shortest period of imprisonment authorized by the law, for the offence,
    a. Same — Same—Duty of Court. — If the error of the jury is discovered in such case before they are discharged, they should be sent back with proper instructions to reconsider the verdict. And if they persist in their finding, *or if they had been dismissed before the error was discovered, the Court should direct a venire de novo.
    
    3. Statute — General Court — Authority of. — The act of 21st February 1845, gives no authority to the General Court, to correct a judgment of an inferior Court.
    This was an application to the General Court for a writ of habeas corpus by John Nemo, a free man of colour, confined in the State penitentiary. In answer to the writ, the superintendent of the penitentiary returned: That the prisoner had been convicted by the verdict of a jury, before the Circuit Superior Court of James City and City of Williamsburg, of voluntary manslaughter ; and the term of his imprisonment fixed at three years: and upon this verdict, the Court had sentenced him to imprisonment for five years in the penitentiary ; under which sentence he was held in custody.
    William B. Byrd and John J. Jones, for the prisoner.
    The Attorney General, for the Commonwealth.
    
      
      In Jones v. Com., 20 Gratt. 854, it was said that the decision of the principal case is sustained by Gibson’s Case, 2 Va. Cas. 111; Com. v. Smith, 2 Va. Cas. 327; Com. v. Percavil, 4 Leigh 686; Mills v. Com., 7 Leigh 751; Com. v. Hatton, 3 Gratt. 623; Marshall’s Case, 5 Gratt. 663; S. C., 5 Gratt. 693; Com. v. Scott, 5 Gratt. 697.
    
   ROBERTSON, J.,

delivered the opinion of the Court.

The Court is of opinion, that the judgment in this case is erroneous, the same being materially variant from the verdict.

The verdict itself was manifestly illegal; the jury having ascertained a term of imprisonment shorter than that prescribed by law. But in rendering a judgment for a different and longer term, the Court departed from the settled practice in criminal prosecutions, and assumed the peculiar province of the jury. In this aspect, the judgment is one, so far as we have seen, without precedent : and prior to the act of 21st February 1845, for the correction of errors in certain criminal proceedings, would doubtless have been reversed without hesitation.

That act, a majority of the Court are of opinion, has no application to the case.

It is confined, in terms, to cases in which it shall appear upon the face of the record, that the sentence is for *a longer or shorter period than the law prescribes; and specially entrusts the correction of such errors to a particular Court: the Circuit Superior Court of Raw for Hen-rico county and the City of Richmond. But the sentence here, is not for a longer or shorter period than that prescribed by law; nor is this the Court authorized to apply the remedy provided for by the act.

It is true, as has been argued, that had the Circuit Court in which the trial was had, sentenced the prisoner in conformity with the verdict, the case provided for would have occurred; and then the Circuit Court of Henrico and Richmond might, perhaps, have corrected the error. But the former Court, having apparently discovered the error of the verdict, prior to the entry of judgment, could not, we think, lawfully have given a corresponding • judgment. That would have been to sanction by the judgment of the Court, the acknowledged error of the jury. The proper course would have been to have sent the jury back with proper instructions, to reconsider their verdict : or if they persisted, or had been discharged, to have directed a venire de novo.

Nor can we, for the reasons above assigned, properly remand the case, as has been suggested, with directions to the Court below to enter a judgment in conformity with the verdict. The act, we think, only contemplated the correction of errors inadvertently committed. Neither that act, nor any law known to us, authorizes a Court knowingly to commit an error, because there may exist in some other Court the power to correct it.

Still less can we sustain the judgment as actually rendered, upon the suggestion that the Court below has substantially effected the object the Legislature had in view. It would be dangerous in criminal cases to authorize that to be done in one mode which the law requires to be done in another, or to maintain in other Courts, or assume in this, powers specially conferred on *a different tribunal. The course of proceeding pointed out bj the statute may be more or less convenient; but it is the only legal mode; and we have no power to carve out another.

Thus expounding the statute, we are of opinion that the judgment should be reversed, the verdict set aside, and a venire de novo awarded.

Judgment reversed, and venire de novo awarded.

LOMAX, LEIGH, THOMPSON, DUNCAN, and CLOPTON, J., dissented from the judgment of this Court reversing the judgment of the Circuit Court; and LEIGH dissented, moreover, from the judgment awarding the writ of venire facias de novo.  