
    *Jones v. Commonwealth.
    March Term, 1871,
    Richmond.
    a. Criminal Procedure—Verdict Ascertains a Term of Imprisonment Shorter Than the Law Prescribes.— Oil a trial for a felony, for which the shortest term of imprisonment Is five years, the jury And the prisoner guilty, and fix the term of his imprisonment in the penitentiary at three years; and the judgment is according to the verdict. Upon a writ of error to the judgment, on the application of the prisoner, the judgment will he reversed: hut the prisoner will not he discharged, hut will he remanded for another trial.
    2. Same—Habeas Corpus.*—The prisoner being in the penitentiary, he will he brought before the appellate court by writ of habeas corpus, and committed to the sheriff of the county of Henrico, to he taken hack to the county from whence he was sent.
    At the March term, 1869, of the County court of Rockingham, Charles Jones and John Reins were jointly indicted for stealing, in December, 1868, two horses, the property of Erasmus W. Hester. When arraigned, they refused to plead, and demanded to be tried in the Circuit court; which was accordingly ordered.
    At the October term of the Circuit court, Jones was tried, without, so far as appeared from the record, having pleaded or had a plea entered for him, and without having elected to be tried separately. The jury found him guilty, and fixed the term of his imprisonment in the penitentiary at three years; and the court sentenced him according to the verdict. After the prisoner had been sent to the penitentiary, he applied to this court for a writ of error, which was awarded. In the petition for the writ, the prisoner stated five grounds of *error; but in this court he abandoned all but the fifth. That is, that the verdict fixes the term of imprisonment at three years; whilst the statute provides that the punishment for the offence for which he was tried shall be death, or not be less than five nor more than eighteen years. This the attorney-general admitted was error. And the only question in this court was, whether the prisoner should be discharged or remanded for another trial before the Circuit court.
    The Attorney-General, for the Commonwealth, submitted the question.
    Roller, for the prisoner.
    The prisoner is entitled to be discharged under the fifth amendment of the constitution of the United States, which says : “Nor shall any person be subject for the same offence to be twice put in jeopardy of life and limb.” This is a capital case, and it is the first in this State in which the full effect of this constitutional provision has come up for consideration. I cannot find that the question has ever been distinctly presented, except, perhaps, in 'Williams’ case, 2 Gratt. 568.
    It is true that the Court of Appeals has in several instances, upon the reversal of the judgment below, awarded a new trial, or directed a venire de novo; but these cases were either, 1. Cases in which the prisoner was not indicted and tried for a capital offence, or if so tried, was acquitted of the capital offence, and convicted of the lesser, so that the verdict of the jury relieved him forever from any danger of a capital conviction; or 2. Cases in which the question was adjourned to the General court for its decision as to what should be done bythe court below.
    There can be no doubt of the proposition that when a prisoner is put upon his trial, he is entitled to such a verdict of acquittal or conviction as .could be pleaded *in bar of any further proceeding against him for the same offence; and that thereafter he should not be subject to the hazard of a second trial. This doctrine seems, at common law, to have had a more extensive application than it has at p.resent in our courts, and seems to have warranted a refusal of a new trial, even upon the application of the prisoner. This seems to be admitted in Virginia to have been the case in cases of treason and felony. Fry, J., in Ball’s case, 8 Deigh 726. And Judge Story elaborately maintains this as the proper construction of the constitutional provision in Gilbert’s case, 2 Sumn. R. 19, 38-43. But his views have been generally disapproved : Fry, J., in Ball’s case, holding that this is not a part of the common law with us, and that our courts are not bound by it. He says: 1 ‘We have a more varied scale of crimes, with more appropriate punishments, than that found in the British code: at the time the principle was established that code was simple and bloody: it was death or nothing for most offences. It is believed that this difference in our criminal laws, as well as that in the exercise of the pardoning power, and the spirit of our institutions, together with a due regard to justice and humanity, fully justify a departure from the English rule.” Justice and humanity to the prisoner, of course unite to grant him a new trial upon his own application. In Gilbert’s case, • 2 Sumn. R. 19, 38, Davis, J., held that the privilege intended to be secured by the prohibition in the constitution, might be waived by the prisoner. And it is entirely upon the consent of the prisoner that the courts proceed in granting a new trial in a .case of felony. United States v. Harding, 6 Penn. Daw Jour. 215; 1 Wall. Jr. R. 127, 7 N. Hamp. R. 287 ; 7 Blackf. R. 186; 6 Alab. R. 676; 17 Id. 190; Ball’s case, 8 Deigh, 726; 3 Wharton’s Cr. Daw, 3060-3078.
    In an appellate court this reason cannot apply. It *is no longer an application for a new trial, no judgment having been rendered, and the conviction not complete; but the question is, whether in the teeth of the constitutional provision, the prisoner not only having been once put in jeopardy of life and limb —of the penalties of the law — but having felt in his own person such penalties, he shall be tried for the same offence.
    Whether we consider this as a question under the constitution or the common law, the authorities, English and American, are overwhelmingly in our favor. The counsel referred to, and commented on, the following English cases: Rex v. Huggins, Bar-nardiston’s R. 398, 2 Strange’s R. 882; Rex v. Ellis, 5 Barn. & Cres. R. 395; King v. Bourne, 7 Adol. & Ell. R. 58; 1 Dead. Cr. Cas. 372 and 376. And these cases have been lately affirmed in England. 1 Dead. Cr. Cas. 383 note.
    In America, regarding the principle as a constitutional provision, Cooley on Const. Dim. 327, says — “A person is once in jeopardy when he is put upon trial before a court of competent jurisdiction, upon an indictment or information so far valid as to be sufficient to sustain a conviction, and a jury has been charged with his deliverance. And a jury is said to be thus charged when they have been empanelled and sworn.” The decisions under this constitutional provision have been numerous. And the counsel referred to Story’s opinion, 2 Sumn. R. 38, 43, 48, 49. In New York, People v. Barrett, 2 Caines R. 304; People v. Goodwin, 18 John. R. 187, 202; Shepherd v. People, 25 New York R. 407; Hartungs’ case, 26 Id. 167, 183 ; 27 Id. 344; Taylor’s case, 3 Denio’s R. 91.
    It may be objected that the reasoning in these cases does not applj' to the case at bar; the error being, as may be supposed, in the verdict. But the error is in the judgment. The court should not have rendered ^judgment upon an illegal verdict, but should have arrestad the judgment, or might have sent the jury back with instructions. It certainly had no right to discharge the jury without the prisoner’s consent, until it had rendered such a verdict either of acquittal or conviction, as would have barred any other proceedings against the prisoner for the same offence. Who knows but that an acquittal might have been secured to the prisoner if this had been done?
    The same principle has been sustained in Massachusetts. The Commonwealth v. Tuck, 20 Pick. R. 356; Shepherd’s case, 2 Mete. R. 419; Christian’s case, 5 Id. 530. So in Indiana, 7 Blackf. R. 186; 5 Ind. R. 290; 7 Id. 324; 13 Id. 215. So in North Carolina, State v. Ephraim, 2 Dev. & Bat. R. 162; 1 Dev. R. 491; 2 Hayw. R. 241. So in Alabama, 7 Porter’s R. 187. So in Pennsylvania, Cook’s case, 6 Serg. & Raw. R. 577; McFadden v. Commonwealth, 23 Penn. St. R. 12. In Virginia, Williams’ case, 2 Gratt. 568. In Ohio, Mount’s case, 14 Ohio R. 295.
    
      
      Crimlnal Procedure—Verdict.—See principal case cited in Richards v. Com., 81 Va. 116; Ex parte Marx, 80 Va. 46, 9 S. E. Rep. 475.
      "Same-Habeas Corpus—The principal case was cited and approved in Stuart’s Case, 28 Gratt. 968.
    
   MONCURE, P.,

delivered the opinion of the court.

This is a writ of error to a judgment of the Circuit court of Rockingham county, convicting the plaintiff in error of the larceny of two horses, and sentencing him therefor to confinement in the penitentiary for the term of three years, the period ascertained by the verdict of the jury. Several errors in the judgment are assigned in the petition for a writ of error in the case, but all of them were abandoned as unsustainable, by the counsel of the plaintiff in error, on the argument of the case in this court, with the exception of the 5th, which is, that “the verdict fixes the-term of imprisonment at three years. This is in direct contravention of law. The act of the General Assembly of Virginia, Acts of 1865-’6, page 88, provides “that any person who shall be guilty of the larcenj' of a horse, mule or *jackass, shall be punished with death, or, in the discretion of the jury, by confinement in the penitentiary for a period of not less than five nor more than eighteen years.”

The offence, in this case, is charged in the indictment to have been committed on the 20th day of December, 1868. It is therefore punishable under the act above referred to, which was passed on the 12th day of February, 1866, and has ever since been, and yet is, in full force. And as that act prescribes five ye ars as the shortest term of confinement in the penitentiary with which the said of-fence can be punished, and as the term of such confinement, as fixed by the verdict and judgment in this case, is three years only, it follows that in that respect the said judgment is erroneous; and for that cause it must be reversed, though the error is in favor of the accused. And this is admitted by the Attorney-General.

But what is to be done in the case after reversing the judgment? The counsel for the plaintiff in error contends that a judgment of discharge from further prosecution must be entered; while the Attorney-General contends that the verdict of’ the jury must be set aside and the cause remanded to the Circuit court for a venire facias de novo, and further proceedings to be had therein.

The ground on which the view of the counsel for the plaintiff in error rests, is a provision of the constitution of the United States, which is in these words: “Nor shall any person be subject, for the same offence, to be twice put in jeopardy of life or limb and which has been considered to be nothing more than a solemn re-assertion of one of the maxims of the common law, that the life of a man shall not be twice in jeopardy for one and the same offence.

This provision of the federal constitution applies, as such, only to the courts of .the United States, and not *to the courts of the several States; though it has been repeated, in effect if not in words, in some of the State constitutions —but not in that of Virginia. The common law maxim, however, on which this constitutional provision is supposed to be founded, does exist in Virginia, and seems to go even farther than that provision. For while that is confined, in terms, to cases involving “life or limb,” the maxim extends to all criminal cases.

The only question, therefore, is, not as to the existence of the principle contended for, but as to its application to this case. Does it require the accused to be discharged from further prosecution, or will it authorize the award of a venire facias de novo to try him again, his former trial having turned out to be abortive?

The counsel for the plaintiff in error has cited many authorities in support of his view, which show very clearly that in England, and some of the States of this Union, there would be a judgment of discharge from further prosecution in such a case as this; at least, there would have been, so long as the rule of the common law prevailed ; which, however, seems to have been recently changed in England. The cases of Rex v. Ellis, 5 Barn. & Cress. R. 395; and King v. Bourne, &c., 7 Ad. & El. R. 58; reported in 1 Leading Criminal Cases, pp. 372, 376, referred to by the counsel, are cases directly in point; and the American cases, tending in the same direction, are collected in the notes appended to that report. See also Whitehead v. The Queen, 7 Ad. & El. N. S. ; 53 Eng. C. E. R. 582.

But, in this State, the law was expressly held to be otherwise in Nemo’s case, 2 Gratt. 558. There the verdict of the jury found the accused guilty of voluntary manslaughter, and fixed his term of imprisonment at three years; and upon this verdict the Circuit court sentenced him to imprisonment for five years, that *being the shortest term prescribed by law for the offence. The judgment, thus varying from the verdict, the General court reversed it for this reason; and the verdict being illegal in ascertaining a term of imprisonment shorter than that prescribed by law, the court set aside that verdict, and awarded a venire de novo. See Report of the Revisors., 1849, p. 1027, note to §7. This decision is sustained by other cases decided in this State; among which are the following: Gibson v. The Commonwealth, 2 Va. Cas. 111; Commonwealth v. Smith, Id. 327; Commonwealth v. Percival, 4 Leigh 686; Mills v. Commonwealth, 7 Id. 751; Commonwealth v. Hatton, 3 Gratt. 623; Marshall v. Commonwealth, 5 Id. 663; S. C. Id. 693; Commonwealth v. Scott, Id. 697. The practice in England and in this State, in regard to new trials in cases of felony, is materially different. In neither country will a new trial be granted when the verdict is in favor of the accused. Nor will a new trial be granted in England, when the verdict is against the accused, and where the proceedings have been regular. If the conviction is improper, the prisoner is respited until a pardon is applied for. In this State, the practice has always been otherwise, and new trials in cases of conviction have frequently been granted on account of irregularity of the jury, misdirection by the court, informality in the verdict, and other causes. 3 Rob. Pr. old ed. p. 271. And such is generally the practice in the other States of the Union: though the supposed wisdom and authority of the common law rule has been strongly commended by one or two of our ablest American jurists, and especially by Mr. Justice Story in United States v. Gilbert, 2 Sumn. R. 19. See Wharton’s American Criminal fiaw, book 6, ch. 4. But in this State there can now be no doubt on the subject. It was fully considered in Ball’s case, 8 Leigh 726, and the doctrine which had so long prevailed was firmly established by the whole court. Speaking- of the English *rule, the court say : “Is this principle a part of the common law with us, and are the courts of1 this State bound by it? We are all of opinion that it is not, and that our courts are not bound to follow it. It is believed that a contrary practice has long prevailed in this State. Many new trials are remembered by some of the judges, and we think that this practice is suitable to our constitution and laws, and agreeable to justice and humanity. To grant a new trial on the application of the prisoner, cannot be said to be against the maxim that no one shall be twice put in jeopardy of his life for the same offence. As was said by the solicitor-general in the case of the Commonwealth v. Green, 17 Mass. R. SIS, it is really granting him a privilege, which may operate to save his life by standing a second'trial for it.” Since this decision in Ball’s case, there have been many cases of conviction of the highest crimes in this State in which new trials have been awarded. If the prisoner succeeds in having the judgment against him reversed and annulled, on account of an irregularity in the trial, or a defect in the verdict, he cannot justly complain that he will be twice put in jeopardy for the same offence, if he be .required to be tried over again. It is no more than a fair price which he pays for the relief which is afforded him. And it is better that he should pay it than that he should be forever discharged from further prosecution of the crime, not because he is not guilty, but merely because there happens to be some defect in the former proceedings against him, which enables him to have the judgment annulled. In this case, if the court had discovered, before the jury was discharged, that the term of imprisonment ascertained by the verdict was shorter than the law allowed, the jury would have been sent back to their room to reconsider and correct that matter. But the discovery was not made, and the judgment conformed to the verdict. The error is one *of mere inadvertence. And, though the judgment must be reversed therefor, we are of opinion that there must be a venire facias de novo.

But, it appearing that the plaintiff is now in the penitentiary, in execution of the said judgment against him, it will be necessary to have him brought before this court by a habeas corpus, and committed to the custody of the sheriff of Henrico county, to be by him conveyed to the jail of the county of Rockingham, for the purpose of being tried again for the offence aforesaid; in conformity with the course which was pursued in Barker’s case, 2 Va. Cas. 122. A writ of habeas corpus is therefore awarded accordingly, directed to the superintendent of the penitentiary, commanding him to bring the prisoner before -this court at 12 o’clock to-morrow morning.

The judgment was as follows:

It seems to the court here, that there is error in the said judgment, in this, that the verdict of the jury on which it is founded, fixes the term of the plaintiff’s imprisonment in the penitentiary, for the felony of which he was convicted as aforesaid, at three years, to which term of imprisonment he was accordingly sentenced by the said judgment: whereas the shortest term of imprisonment for which he can be sent to the penitentiary under the law which applies to this case (Acts of Assembly 1865-66, page 88, chapter 22), is five years. Wherefore, without deciding anything in regard to the other errors assigned in the petition (which the plaintiff by counsel admitted not to be well assigned, and therefore waived his assignment thereof), it is considered by the court that the said judgment be reversed and annulled. And for reasons stated in writing, and filed with the record, it is ordered that the said verdict of the jury be set aside, and the cause remanded to the said Circuit court of Rocking-ham ^county, for a new trial to be had therein, on a plea of not guilty to be entered by the said court; the plaintiff on his arraignment having refused to plead, and the said court not having had the said plea entered before the former trial, as required by law: which is ordered to be certified to the said Circuit court.

But it appearing to the court that the plaintiff is now in the penitentiary, in execution of the said judgment against him, it will be necessary to have him brought before this court by a habeas corpus, and committed to the custody of the sheriff of Henrico county, to be by him conveyed to the jail of Rock-ingham county for the purpose of being tried again for the offence aforesaid; in conformity with the course which was pursued in Barker’s case, 2 Va. Cas. 122. Therefore, it is ordered that a writ of hab-eas corpus be awarded accordingly, directed to the superintendent of the penitentiary, commanding him to bring the plaintiff before this court to-morrow at 12 o’clock, M. to do and submit to what may then be ordered by the court in the premises according to law.

The order was as follows:

This day the said Charles Jones was brought into court by the superintendent of the penitentiary, in obedience to the writ of habeas corpus awarded in this case on yesterday, directed to the said superintendent. Whereupon it is ordered that the said Charles Jones be committed to the jail of Henrico county, to be from thence conveyed by the sheriff of Henrico to the jail of the said county of Rockingham, to be tried again in the said Circuit court of the said county of Rockingham, for the felony in the said indictment mentioned. And it is further ordered that a copy of this order be forthwith given to the said sheriff, who is required as soon as may be, to execute the same, and to employ the necessary assistance for that purpose; which said *sheriff, and the person so employed to assist him, are to be compensated out of the treasury according to law.

Judgment reversed, and prisoner remanded.  