§ 1. A convict confined in the penitentiary, or in custody of an officer thereof, shall be deemed guilty of felony, if he shall kill, wound, or inflict other bodily injury upon an officer or guard of the penitentiary; or shall escape from the penitentiary or such custody; or shall break, cut or injure any building, fixture or fastening of the penitentiary, or any part thereof, for the purpose of escaping or aiding any other convict to escape therefrom, or rendering the penitentiary less secure as a place of confinement; or shall make, procure, secrete or have in his possession any instrument, tool or thing for the said purpose, or with intent to kill, wound or inflict bodily injury as aforesaid; or shall resist the lawful authority of an officer or guard of the penitentiary for the said purpose or with such intent. (1 R. C. p. 629, § 54, 56. Acts 1843-4, p. 55, ch. 72, § 1.)

§ 2. Any three or more convicts so confined, or in such custody, who shall conspire together to commit any offence mentioned in the preceding section, shall be deemed guilty each of felony. (Id.)

§ 8. A convict guilty of such killing as is mentioned in the

first section, or of any act therein mentioned from which death ensues to such officer or guard, shall be punished with death. For any other offence mentioned in either of the preceding sections, a convict, unless he be under a sentence of confinement for life, shall be confined in the penitentiary not less than one, nor more than five years after the end of the term for which he shall then be subject to confinement, and, whether he be under sentence for life or not, he shall be kept in solitary confinement for such portion of the time of his confinement in the penitentiary as may be fixed by the jury, not being more than one-half, nor less than onetwelfth part, of the time he may be confined therein, after being sentenced under this chapter; which solitary confinement may commence immediately on his being so sentenced, but shall not exceed a month at any one time. (Id.)

§4. A person prosecuted for an offence under this chapter, shall not be discharged from the penitentiary while such prosecution is pending. And a person convicted of such offence, shall not, by reason thereof, be sentenced under the twenty fifth or twenty-sixth section of chapter one hundred and ninety-nine,' except as follows. (1 R. C. p. 629, § 55. Acts 1843-4, p. 55, § 1.

§ 5. If a convict in the penitentiary shall commit any felony, (other than is provided for in the three first sections of this chapter,) which is punishable by confinement therein or with death, he shall suffer the same punishment as if he had been discharged before committing it. Acts 1843–4, p. 55, § 2.)

1 See ante, ch. 3, § 25, 26, for the sections referred to in this section.

§ 1. All criminal proceedings against convicts in the penitentiary shall be in the Circuit Court for the city of Richmond. (1 R. C. p. 620, § 16, 55, 57. Acts 1844–5, p. 56, § 3.)

§ 2. When a person convicted of an offence, and sentenced to confinement therefor in the penitentiary, is received therein, if he was before sentenced to a like punishment, and the record of his conviction does not shew that he has been sentenced under the twenty-fifth or twenty-sixth section of chapter one hundred and ninety-nine,' the superintendent of the penitentiary shall give information thereof, without delay, to the said Circuit Court for the city of Richmond, whether it be alleged or not in the indictment on which he was so convicted, that he had been before sentenced to a like punishment. (1 R. C. p. 620, § 16.

§ 3. The said court shall cause the convict to be brought before it, and upon an information filed, setting forth the several records of conviction, and alleging the identity of the prisoner with the person named in each,, shall require

1 See ante, ch. 3, § 25, 26.

the convict to say whether he is the same person or not." (Id.)

§ 4. If he say he is not, or remain silent, his plea, or the fact of his silence, shall be entered of record, and a jury of bystanders shall be empanneled, to enquire whether the convict is the same person mentioned in the several records. (Id.)

§ 5. If the jury find that he is not the same person, he shall be remanded to the penitentiary; but if they find that he is the same person, or if he acknowledge in open court, after being duly cautioned, that he is the same person, the court shall sentence him to such further confinement as is prescribed by chapter one hundred and ninety-nine,' on a second or third conviction, as the case may be. (1 R. C. p. 620, § 16. C. V. ch. 199, § 25, 26.)

§ 6. Upon a complaint in writing and under oath, presented to the said circuit court, or to the judge thereof in vacation, that any convict in the penitentiary has committed an offence punishable under chapter two hundred and fourteen,' proceed

2 A report being made to the Cirouit Court of Henrico by the superintendent of the penitentiary, pursuant to the statute, 1 Rev. Code, ch. 171, § 16, that a convict received into the penitentiary is the same person mentioned in the record of a former conviction, and that he has not been sentenced to the punishment prescribed by law for his second offence, the court continuing the case at several successive terms, in the absence and without the consent of the convict; after which he is brought into court for the first time, and his identity being duly ascertained, he is sentenced to the proper punishment of his second offence. Such continuance of the case furnishes no ground of objection to the judgment. Brooks v. Com., 2 Rob. R. 845.

3 Upon an enquiry, in pursuance of the statute, 1 Rev. Code, ch. 171, § 16, whether a convict received into the penitentiary be the same person mentioned in the record of a former conviction, the prisoner has no right to challenge peremptorily any former person called as a juror. Ibid. “At common law, a peremptory challenge is not allowed in any case except upon the plea of not guilty, and no peremptory challenges are ever allowed on the trial of collateral issues. So we find it stated by the elementary writers: see 1 Chitty's C. L. 535; 3 Bac. Abr. Juries, E. 9, p. 762." Per Smith, J. in delivering the opinion of the court in S. C., 2 Rob. R. p. 849-850.

4 See ante, ch. 3.

• See ante, ch. 10.

ings may be had for the said offence, either at a regular term of the court, or at a special term, to be appointed by its order, or by a warrant of the judge, directed to the clerk of the court, who shall give notice of such special term to the attorney for the Commonwealth and other officers of the court. (1 R. C. p. 630, § 57. Acts 1843-4, p. 57,

§ 3.)

§ 7. The clerk shall issue all necessary process; and a grand jury and a venire shall be summoned, to attend at the time appointed in such warrant, or at such time as the court may direct. (1 R. C. p. 630, § 57. Acts 1843-4, p. 57, § 3.

§ 8. The judge of said court, when an indictment is found against the accused, shall issue a warrant to the superintendent to bring him before the court as well as any other persons confined in the penitentiary, who are required as witnesses on either side. (1 R. C. p. 630, § 58.)

§ 9. In any such prosecution no examining court shall be had; and all other convicts in the penitentiary shall be competent witnesses for or against the accused, except that negroes shall not be allowed as witnesses against a white person. In all other respects the proceedings, trial and judgment shall be had, pronounced and executed, as in other cases of prosecutions for offences punishable with death or confinement in the penitentiary. (1 R. C. p. 630, § 59, 60, 61.)

6 The proceeding against convicts for escape from the penitentiary must be by indictment. Com. v. Ryan, 2 Va. Cas. 467.

7 Accord. Johnson v. Com., 2 Gratt. 581.