Spurgeon v. Commonwealth

Citations

• 86 Va. 652
• 10 S.E. 979
• 1890 Va. LEXIS 26

Syllabus

<p>1. Criminal proceedings—Capital felony— Venire facias.—Under Acts 1877-8, p. 340, in a‘ case, wherein the punishment may be death, if the writ of venire facias commands the sheriff to summon sixteen instead of twenty-four jurors, or if the record does not show by whom the list was furnished, or that the writ was directed by the court, it is invalid.</p> <p>2. Appellate practice—Judgments before January 18,1888.—In criminal cases wherein judgment was rendered before passage of act of January 18, 1888 (Code, sec. 3156), failure of record to show affirmatively that the jury was regularly summoned, is error whereof advantage may be taken in the appellate court,'though no objection was raised below.</p> <p>3. Idem—Essentials—Record—Waiver.—In proceedings involving deprivation of life or liberty, whatever is essential must affirmatively appear of record, and where a waiver by defendant leaves the .record destitute of an essential part he may afterwards take advantage of the defect, notwithstanding the waiver.</p>