therein,) the judge, judges or justices, or the greater part3 of those present shall sign; and it shall be a part of the record of the case. (1 R. C. p. 523, ch. 133, § 2. Acts 1825-6, p. 20, ch. 18; 1847-8, p. 153, ch. 22, § 1; p. 154, § 6; p. 159, ch. 24, § 5; 1866–7, p. 937, § 1.

§ 2. If a person, sentenced by a circuit, or corporation, or hustings court, to death, or confinement in the penitentiary, ask for time to apply for a writ of error, the said court shall postpone the execution of its sentence until a reasonable time beyond the first day of the next term of the court of appeals, not exceeding thirty days after that day, and a county court shall in like manner suspend its judgment for the same purpose. In any other criminal case, wherein judgment is given by a circuit, or corporation, or hustings

to file a bill of exceptions. Regina v. Alleyne, 29 Eng. Law & Eq. R. 180. 3 An appellate court cannot act upon a bill of exceptions, nor take cognizance of any matter contained therein, unless it be sealed by the greater part of the justices present. Gordon et als v. Browne's ex'or, 3 Hen. & Munf. 219.

• When the plea of errors in arrest of judgment sets forth matter making no part of the record, it will not avail the prisoner. Cohen's Case, 2 Va. Cas. 158; Angel's case, Id. 231; Campbell's case, 314; Morris' case, 9 Leigh 636; 3 Rob. Prac. (old edi.) 124.

A bill of exceptions in a criminal case, upon the refusal of the court to grant a new trial, on the ground that the verdict is contrary to the evidence, is to be framed in the same way as the bill of exceptions in civil cases to the like refusal is framed, And if the evidence is certified instead of the facts proved, the appellate court will only look to the evidence introduced by the Commonwealth. Vaiden v. Com., 12 Gratt. 717. See Bennett v. Hardaway, 6 Munf. 125; Ewing v. Ewing, 2 Leigh 337; Green v. Ashby, 6 Leigh 135; Rohr v. Davis, 9 Leigh 30; Pasley v. English, 5 Gratt. 141; Carrington v. Goddin, 13 Gratt. 588; 1 Rob. Prac. (old edi.) 382-3. The appellate court will not reverse the judgment, unless, by rejecting all the parol evidence for the exceptor, and giving full faith and credit to that of the adverse party, the decision of the court below still appears to be wrong. Bull v. Com., 14 Gratt. 613.

The appellate court will not reverse the judgment of the court below overruling a motion of the prisoner for a new trial, on the ground that the verdict is contrary to the evidence, unless it is plainly insufficient to warrant the verdict. Oneale's case, 17 Gratt. 582; Kates' case, Id. 561; Vaiden's case, 12 Gratt. 717.

court, and in any case of judgment for a contempt, to which a writ of error lies, the court giving such judgment may postpone the execution thereof for such time and on such terms as it deems proper. (1 R. C. p. 225, § 27. Acts 1830-31, p. 106, § 4; 1847-8, p. 153, § 3; p. 100, §7; 1866-7, p. 937, § 2; 1870-1, p. 30.)

§ 3. A writ of error shall lie in a criminal case, to the judgment of a circuit, or a corporation, or hustings court, from the court of appeals ;" and to a judgment of a county court, from the circuit court having jurisdiction over such county. It shall lie in any such case for the accused; and if the case be for violation of a law relating to the revenue, it shall lie also for the Commonwealth." (1 R. C. p. 224, § 26. Acts 183C-31, p. 106, § 4; 1835-6, p. 48, ch. 71; 1839-40, p. 15, § 37; 1847-8, p. 153, § 2, 4, 6; 1866–7, p. 937, § 3; 1870–71, p. 31.)

§ 4. To a judgment for a contempt of court, other thar for the non-performance of or disobedience to a judgment, decree, or order, a writ of error shall lie, when the judgment is of a county court, from the circuit court having jurisdiction over such county; when it is of a circuit, or a corpor

5 The common law writ of error can only be awarded to some judgment, order, or proceeding of a court of record. It cannot be awarded to the refusal of a judge of the circuit court, in vacation, to award a writ of error to a judgment of an inferior court. Abrahams v. Com., 11 Leigh 675.

• A writ of error will not lie from the Court of Appeals to the judgment of a county or corporation court. See Ibid; Anderson's case, 4 Leigh 693; White v. King, &c., 5 Leigh 726; Cropper v. Com., 2 Rob. R. 842, 844.

7 No writ of error lies for the Commonwealth in a criminal case, except in some particular cases in which the writ is given by the statute. Com. v. Harrison, 20 Va. Cas. 202; 3 Rob. Prac. (old edi.) 207. See C. V. 1860. ch. 35, p. 210, § 106. The denial of the writ of error to the government, is but the application of the principle, Nemo debet vis vexari pro una et eadem causa; or, as expressed in the constitution of the United States, no person shall be subject, for the same offence, to be twice put in jeopardy of life or limb. The spirit of this rule equally forbids the government to review its errors either by appeal, new trial, or bill of exceptions. 1 Ben. & Heard. Lead. Cr. Cas. 435.

ation, or hustings court, from the Court of Appeals. (Acts 1825-6, p. 20, 21, ch. 18, § 1, 3; 1847-48, p. 160, § 6; 1866-7, p. 937, § 4; 1870-71, p. 31.)

§ 5. When in any case within this chapter, a writ or error lies from a circuit court, it may, in vacation of such court, be awarded by any circuit judge; and when it lies from the Court of Appeals, it may, in the vacation of said court, be awarded by any judge thereof. (Acts 1830-31, p. 106, ch. 38, § 4; 1847-8, p. 160, § 6; 1866, p. 89; 1866-7, p. 937, § 5.)

§ 6. A writ of error, awarded under this chapter to any judgment, may operate as a supersedeas thereto, if the court or judge awarding it so direct, on such terms and conditions as the said court or judge may prescribe. (Acts 1830-31, p. 106, § 4; 1847-8, p. 154, § 5; p. 160, § 7. 8 and 9 Vict. ch. 68; 1866-7, p. 937, § 6.)

§ 7. The court from which a writ of error lies, shall affirm the judgment if there be no error therein, and reverse the same in whole or in part if erroneous, and enter such judgnient as the court whose error is sought to be corrected, ought

In a prosecution for selling ardent spirits by retail to be drunk at the place where sold, without having first obtained a license to keep an ordinary, a writ of error lies for the Commonwealth from the judgment of an inferior court. Com. v. Scott, 10 Gratt. 749. See also Tefft's case, 8 Leigh 721; Coe's case, 9 Leigh 620; Hampton's case, 3 Gratt. 590; Hill's case, 5 Gratt. 682; Hatcher's case, 6 Gratt. 667; Head's case, 11 Gratt. 819; Nax's case, 13 Gratt. 789.

8 A writ of error awarded during term to a judgment in a case of felony, may be made returnable to any day of the term. Lazier v. Com., 10 Gratt. 708. See C. V. 1860 ch. 170, p. 706, § 2.

"The effect of the common law writ of error is merely to bring up to the appellate tribunal a certified copy of the record of the court below, in order that the error therein, if any, may be corrected, and the judgment reversed. The writ does not of itself operate as a supersedeas to the judgment; so that, whilst the appellate court is correcting the error, the judgment below might be carried into execution, however erroneous. Conner v. Com., 2 Va. Cas. 30, 32. In the case of Kemp & als. v. Com., 18 Gratt. 969, 971, one of the judges of the Court of Appeals allowed a writ of error, to operate as a supersedeas; the prisoners to remain in custody.

to have entered;1° or remand the cause and direct a new

10 In the case of Nemo v. Com., 2 Gratt. 558, 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. 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. Yet there was much diversity of opinion among the judges as to what the judgment should be. Five judges, to wit: Judges Lomax, Leigh, Thompson, Duncan and Clopton, dissented from the majority. There have been several cases before the English courts, where the sentence was for a term of imprisonment longer or shorter, or a punishment greater or less, than was prescribed by law. In the case of Ellis, 5 Barn. & Cress. 385; 11 Eng. Com. Law Rep. 259, the sentence was transportation for seven years, whereas by law it could not be more than six years. It was urged that the prisoner might be remanded to the court below, and there receive the proper sentence, as in Kenworthy's case, 1 B. & C. 711. But the court said, "There is this material distinction between the two cases: there no judg ment whatever had been passed in the court below; and this court, therefore, ordered the prisoner to be remanded to the inferior court, in order to receive judgment. But here the court below has passed a judgment, and that judgment being erroneous, we think there is no ground to send it back to be amended. The consequence is, that the judgment pronounced by the court below must be reversed. In The King v. Bourne and others, 7 Adol. & El. 58; 34 Eng. Com. Law Rep. 36, Lord Denman, C. J. said: “This is a writ of errror upon a judgment of transportation passed on three persons, none of whom was subject by law to any but capital punishment. The objection is pointed out, and a discharge prayed for. It is contended, that although the judgment be wrong, the court may take one of two courses: that it may remit the case back to the court below for judgment, or may itself pronounce such judgment as it knows to be right, on such a conviction. As to the course first suggested, I think we have no such power. We cannot say that the court below has given no judgment; if that had been so, and the case had merely come before this court for the purpose of obtaining its opinion, we might have heard the point discussed, and remitted the case again to the court below for judgment. Here a judgment has been given, which the prisoners call in question: we cannot say that the court below shall be required to give another judgment." As to the second point he said the case of Rex v. Ellis, 5 B. & C. 385; 11 Eng. Com. Law Rep. 259, was decisive. The judgment was reversed, and the prisoners ordered to be discharged out of custody. In Whitehead v. The Queen, 7 Adol. & El. N. S.; 53 Eng. Com. Law Rep. 282, the judgment was that the accused be transported for the term of seven years, whereas the statute directed the transportation to be for a term not exceeding fifteen years, nor less than ten

trial" affirming in those cases where the voices on both sides are equal. (1 R. C. p. 224, 5, § 26. Acts 1825-6, p. 20, ch. 18; 1830-31, p. 106, § 4; 1866-7, p. 937, § 7.)

Execution of sentence.

§ 8. Sentence of death, except for insurrection or rebellion, shall not be executed sooner than thirty days after the sentence is pronounced. (1 R. C. p. 608, § 30. Acts 1847-8, p. 124, § 26; 1866-7, p. 938, § 8.)

years. Here, likewise, the judgment was reversed, Lord Denman, C. J. saying the judge could pass sentence only under the statute. By the section to which this note is appended, it is proposed to adopt the language used in relation to decisions of appellate courts in civil cases, under which it is well established that the appellate court may give such judgment as the court below ought to have given. Rep. Rev. C. V. p. 1027–8, note.

A circuit court, not adverting to the statute of 1832-3, ch. 19, § 2, sentences a convict to solitary confinement in the penitentiary for one sixth of the term of imprisonment fixed by the verdict; judgment reversed for this cause; but the General Court proceeds to enter judgment, that the solitary confinement shall be one twelfth of the term, according to that statute. Brooks v. Com., 4 Leigh 669.

Where a writ of error is awarded by the General Court to a judgment for felony, and the convict is removed to the penitentiary, in execution of the judgment, before the writ is served on the sheriff, if the General Court should be of opinion that judgment on the verdict ought to have been ar rested, it will award a habeas corpus, directed to the superintendent of the penitentiary, and upon the prisoner's being brought up, judgment will be entered on his behalf. But in such case, where the judgment is arrested for error in the indictment, if the Attorney General desire it, the sheriff of the county in which the General Court sits will be directed to convey the accused to the jail of the county in which the offence was committed, to answer a good and sufficient indictment to be exhibited against him in the circuit court of such county for said offence. Barker's case, 2 Va. Cas. 122.

Where a pecuniary judgment has been rendered against a defendant in a criminal case, and he pays it, and upon appeal the judgment is reversed, the cause will be remanded to the court below, for an order of restitution to be made therein, if the money is yet in the hands or power of the court. Old v. Com., 18 Gratt. 915.

"On an indictment for unlawful stabbing under the statute of Virginia, a verdict of "guilty of unlawful stabbing," will not authorize a judgment; but the court should direct a new trial, Marshall v. Com., 5 Gratt. 663.