in his absence. Lawrence v. Com., 30 Gratt. 845. Kibler v. Com., 94 Va. 804, 26 S. E. 858; Anderson v. Com., 84 Va. 77, 3 S. E. 803. Continuances before Arraignment.Before arraignment the prisoner need not be present when his case is continued. Kibler v. Com., 94 Va. 804, 26 S. E. 858. See also, Anderson v. Com., 84 Va. 77, 3 S. E. 803. See post, "Must Be Shown by the Record," V, J, 2, b, (3), (b), cc. See the title CONTINUANCES, vol. 3 p. 270. Continuances after Arraignment.See post, "In General,” V, J, 2, b, (3), (b), cc, (aa). See the title CONTINUANCES, vol. 3, p. 270. It is necessary that one indicted for felony shall be personally present when after arraignment a motion is made by his counsel for a continuance of his cause, and that the record shall show that; yet, if anything appears in the record from which his presence must be necessarily inferred, it is all that the law requires. Benton v. Com., 91 Va. 782, 21 S. E. 495; Shelton v. Com., 89 Va. 450, 16 S. E. 355. a to his seat in the court room. The court and counsel not observing the absence of the prisoner, and supposing he had returned with the jailer, proceeded with the cross-examination of a witness, and two questions were asked and answered before it was discovered that the prisoner was absent. The examination of the witness was immediately stopped, the jury were instructed to pay no attention to the evidence introduced in the absence of the prisoner and ruled out the same, and, when the prisoner returned, the same questions were put to the witness and the same answers received from him. This court held, in that un case, that the court below erred in refusing to set aside the verdict because of the absence of the prisoner, while a part of the evidence was being introduced. Johnson, president, quotes and approves the strongest part of the opinion in Jackson's Case (19 Gratt. 656) and then says: 'We will not inquire whether the prisoner was favorably or otherwise affected by the C1 Oss-examination of the witness in his absence. He had the right to be present, which he did not and could not Examination of Witnesses.-In waive. He had the right to observe case of felony, it is reversible error to every look, gesture, or move of the proceed with the examination of a wit-witness while he was testifying; and it ness, in the absence of the prisoner, although the questions propounded and answered, in his absence, are preliminary questions, and, if, upon the return of the prisoner, the same questions are reasked and reanswered in exactly the same way, and no exception is taken on the ground of such irregularity at the time, such error can not be cured. State v. Sheppard, 49 W. Va. 582, 39 S. E. 676; State v. Greer, 22 W. Va. 800; Jackson v. Com., 19 Gratt. 656. "In Greer's Case, 22 W. Va. 800, *** the prisoner, by permission of the court, retired in charge of the jailer, and, upon the prisoner's request, the jailer put him in his cell, without the knowledge of the court or the counsel on either side, and then returned mattered not, that the court excluded the evidence and certified that it was repeated in his presence.' From these authorities it is clearly a matter of no consequence that the evidence introduced in this case in the absence of the prisoner may not have affected him and that he did not at the time take an exception. To be present during every part of the trial was a constitutional right which he could not waive. Until this time, this court has not only held that the right could not be waived but also that such an error can not be cured. Greer's Case, supra (22 W. Va. 800)." State v. Sheppard, 49 W. Va. 582, 614, 39 S. I. 676. "The ground of complaint is that the for setting aside the verdict. State v. Sheppard, 49 W. Va. 612, 39 S. E. 676. Delivery of Indictment, etc., to Jury. tions of the court or other writings proper to be given into the hands of the jury should be delivered to them in the presence of the defendant and his counsel, that objection, if any, may be made at the time. Bowles v. Com., 103 Va. 816, 48 S. E. 527. following testimony was given by a witness for the state, in the absence of the prisoner: Question-What is your name?' Answer-Flora Ayers.' Ques--The indictment and written instruction-What is your husband's name?' Answer-Jont Ayers.' The court certifies that, while these questions were asked and answered, the prisoner was not in the courthouse, but was then in the jail and was afterwards brought into court, and then the prosecuting attorney asked the witness the same questions, and, to them, she gave the same answers, but that the witness was not sworn in the presence of the prisoner. The absence of the prisoner was noticed by the courts and the trial was suspended until he was brought in. No objection or exception was taken at the time, but after the verdict was brought in, the prisoner moved the court to arrest the judgment and set aside the verdict because he was not in court during all the trial, which motion the court overruled. This was a fatal error for which the judgment must be reversed, the verdict set aside and a new trial granted" State v. Sheppard, 49 W. Va. 582, 39 S. E. 676. See the titles CONSTITU-| TIONAL LAW, vol. 3, p. 140; WITNESSES. Reading Testimony to Jury. "A leading Virginia case on this subject is Jackson v. Com., 19 Gratt. 656. There, after the evidence was closed and the jury had retired, they came back into court and the court permitted a portion of the testimony of one of the witnesses, as taken down during the trial, to be read to them, at their request, in the absence of the prisoner as well as of the witnesses. During the reading of the notes, the prisoner was brought back into court, and afterwards, the witness, being then present, was re-examined by consent of all parties." It was held, that the court erred in permitting any part of the testimony taken down to be read over to the jury in the absence of the accused, and that it was sufficient cause Sending Jury to Their Room. It is not error wherefor a verdict of guilty will be set aside, that in the absence of the prisoner, on the morning of the second day of the trial, the jury is called and sent to their room to consider their verdict, the jury afterwards returning into court, and in the presence of the prisoner, rendering their verdict. Lawrence's Case, 30 Gratt. 845; Jones v. Com., 79 Va. 213. See the title JURY. At Return of Verdict.-A verdict on an indictment for felony must be rendered by the jury in open court, in the presence of the prisoner, and be received and recorded by the court. These facts must appear from the record, and no presumption that all things were rightly done by the trial court will supply the omission of any one of these facts. They sufficiently appear, however, from a record which shows the presence of the prisoner, and declares that the jury "retired to their room to consult of their verdict, as follows, to wit: * * * Whereupon the prisoner, by his counsel, moved the court not to proceed to judgment upon the verdict aforesaid" but to set it aside as contrary to the law and the evidence. Gilligan v. Com., 99 Va. 816, 37 S. E. 962. See post, "In General," V, J, 2, b, (3), (b), cc, (aa); "Presence at Trial for Misdemeanor," V, J, 2, b, (3), (c). Motion for New Trial.-In State v. Parsons, 39 W. Va. 464, 19 S. E. 876, it was held, that the prisoner being tried for felony must be present when action is had on a motion for a new trial. See post, "In General," V, J, 2, b, (3), that: 'Although the presence of the (b), cc, (aa). defendant in court at the time of proWhere in the absence of the pris-nouncing sentence, and the inquiry as oner, who was being tried for felony, to whether he has anything to say why a motion for a new trial was made and sentence should not be pronounced, overruled, and afterwards during the may be necessary to the validity of the same term, in his presence, the over- sentence, an omission of these formalruling was rescinded, and he was in-ities, like a defect in the style of the vited to renew the motion, but re- sentence itself, will not be ground for fused; it was held, the irregularity was thereby cured. Bond v. Com., 83 Va. 581, 3 S. E. 149, citing Boswell v. Com., 20 Gratt. 865. See post, "Presence at Trial for Misdemeanor," V, J, 2, b, (3), (c). See the title NEW TRIALS. Judgment by Default.-"In criminal proceedings, under common-law practice, there can be no judgment by default. Whart. Cr. Pl. & Prac. § 540; 1 Bish. Cr. Proc., § 267. But the statute changes this rule to some extent, at least." State v. Campbell, 42 W. Va. 246, 24 S. E. 875. See post, "Presence at Trial for Misdemeanor," V, J, 2, b, (3), (c). In prosecutions for felony there can be no judgment by default. State v. Parsons, 39 W. Va. 464, 19 S. E. .876; State v. Campbell, 42 W. Va. 246, 24 S. E. 875; State v. Allen, 45 W. Va. 65, 30 S. E. 209; Pifer v. Com., 14 Gratt. 710; Com. v. Crump, 1 Va. Cas. 172. "In Crump's Case, 1 Va. Cas. 172, it was held, That in no case whatever, except where some statute hath otherwise directed, must judgment of imprisonment, or unusual corporal punishment, be rendered, unless the defendant be present in court.'" State v. Sheppard, 49 W. Va. 582, 612, 39 S. E. 676. See post, "Presence at Trial for Misdemeanor," V, J, 2, b, (3), (c). See the title JUDGMENTS AND DECREES. Unless expressly authorized by statute, no court can give judgment of imprisonment, or other corporal punishment, unless the defendant is present in court. Com. v. Crump, 1 Va. Cas. 172. a new trial, or the discharge of the prisoner, but the appellate court will remand the case, with instructions to render judgment according to law.'" State v. Allen, 45 W. Va. 65, 30 S. E. 209. See post, "Presence at Trial for Misdemeanor," V, J, 2, b, (3), (c). See the title SENTENCE AND PUNISHMENT. Proceedings on Writ of Error."The law allows proceedings on writs of error without requiring the actual presence of the criminal in court." State v. Conners, 20 W. Va. 1. Statements of Counsel after Trial.— As the trial of a criminal case begins at the arraignment of the prisoner and ends with the sentence pronounced upon him by the court, after judgment, it is not error to hear the statement of counsel for the prisoner in his absence that he has no bills of exceptions to offer. Gilligan v. Com., 99 Va. 816, 37 S. E. 962. Signing the orders is no step in the prosecution of a criminal, and no part of the trial, but is simply the authen-. tication of what has been done, and where the record shows that the accused was present when the proceedings were had, he need not be present when the orders are signed. Weatherman v. Com., 91 Va. 796, 22 S. E. 349. Entries Nunc Pro Tunc.-When made in proper cases, to further the ends of justice, courts may make entries of judgments and orders nunc pro tune in criminal cases, and the time within which this may be done is not limited. If the entry is one which the judge may be compelled, by mandamus, to make, he may make it Pronouncing Sentence.-"In 21 Am. & Eng. Ency. Law 1071, it is stated of his own motion, and it is not essen tial that the accused Weatherman v. Com., 91 Va. 796, 22 S E. 349. be present. effectiveness must depend upon the consent of the person charged with crime." State v. Conners, 20 W. Va. 1. bb. Appearing by Attorney. See post, "Record Showing Appearance by Attorney,” V, J, 2, b, (3), (b), cc, (bb).. The rule is well established that a person on trial for a felony can not appear by attorney. Sperry v. Com., 9 Leigh 623; Hooker v. Com., 13 Gratt. 763; Lawrence v. Com., 30 Gratt. 845; Bond v. Com., 83 Va. 581, 3 S. E. 149; Snodgrass v. Com., 89 Va. 619, 17 S. E. 238; Shelton v. Com., 89 Va. 453, 16 S. E. 355; Jackson v. Com., 19 Gratt. 665; Coleman v. Com., 90 Vą. 635, 19 S. E. 161; State v. Tucker, 52 W. Va. 420, 44 S. E. 427; State v. Beatty, 51 W. Va. 232, 41 S. E. 434; State v. Sheppard, 49 W. Va. 582, 39 S. E. 676; State v. Allen, 45 W. Va. 65, 30 S. E. 211; State v. Campbell, 42 W. Va. 246, 24 S. E. 875; State v. Parsons, 39 W. Va. 464, 19 S. E. 876; State v. Sutfin, 22 W. Va. 771; State v. Greer, 22 W. Va. 800; State v. Conners, 20 W. Va. 1; State v. Conkle, 16 W. Va. 736; State v. Strauder, 8 W. Va. 686; Younger v. State, 2 W. Va. 579. See also, Bowles v. Com., 103 Va. 816, 48 S. E. 527; Kibler v. Com., 94 Va. 804; 26 S. E. 858; Shiflett v. Com., 90 Va. 386, 18 S. E. 838; Benton v. Com., 91 Va. 782, 21 S. E. 495; Weatherman v. Com., 91 Va. 796, 22 S. E. 349; Anderson v. Com., 84 Va. 77, 3 S. E. 803; Jones v. Com., 79 Va. 213; Cluverius v. Com., 81 Va. 848; Gilligan v. Com., 99 Va. 816, 37 S. E. 962; Com v. Crump, 1 Va. Cas. 172. In felony cases there is no equivalent to the technical appearance by attorney of defendant in civil cases except the being in actual or constructive custody. "When a person charged with felony has escaped out of custody, no order or judgment, if any should be made, can be enforced against him; and courts will not give their time to proceedings. which for "At pages 81, 82 and 83 (People v. Genet, 59 N. Y.), Judge Johnson, who delivered the unanimous opinion of the court, says: "The whole theory of criminal proceedings is based upon the idea of the defendant being in the power and under the control of the court in his person. While the constitution and the statute provide him with counsel, and the statutes give the right of appearance by attorney in civil cases, they are silent in respect to the representation of charged with felony by means of an attorney." State v. Conners, 20 W. Va. 1. See ante, "Entry by Attorney," V, I, 6, c, (7), (b); post, "Presence at Trial for Misdemeanor," V, J, 2, b, (3), (c). persons Cc. Must Be Shown by the Record. (aa) In General. The record must show that a person indicted for felony was personally present during the trial therefor. It must show that he was arraigned in person, pleaded in person and was personally present whenever anything is done in his case in any way affecting his interest. The record can alone be looked to for the evidence to prove such presence at every stage of the trial. Va. Code, 1904, § 4017; W. Va. Code, ch. 159, § 2; Gilligan v. Com., 99 Va. 816, 37 S. E. 962; Bowles v. Com., 103 Va. 816, 48 S. E. 527; Benton v. Com., 91 Va. 782, 21 S. E. 495; Cole|man v. Com., 90 Va. 635, 19 S. E. 161; Shelton v. Com., 89 Va. 450, 16 S. E. 355; Snodgrass v. Com., 89 Va. 679, 17 S. E. 238; Bond v. Com., 83 Va. 581, 13 S. E. 149; Cluverius v. Com., 81 Va. 848; Lawrence v. Com., 30 Gratt. 845; Boswell v. Com., 20 Gratt. 860; Jackson v. Com., 19 Gratt. 656; Hooker v. Com., 13 Gratt. 763; Pifer v. Com., 14 Gratt. 710; Sperry . Com., 9 Leigh 623; Com. v. Crump, 1 Va. Cas. 172; State v. Tucker, 52 W. Va. 420, 44 S. E. See Com., 81 Va. 848; State v. Cross, 44 If the record shows that a prisoner was present in court when a motion for a new trial was made, the presumption is that he remained until the court adjourned for the day, unless the contrary is made to appear either directly or by necessary implication. When once shown to have been present, it is not necessary to show that he was re 427; State v. Beatty, 51 W. Va. 232, 41 S. E. 434; State v. Allen, 45 W. Va. 65, 30 S. E. 209; State v. Cross, 44 W. Va. 315, 29 S. E. 527; State v. Sutfin, 22 W. Va. 771; State v. Conners, 20 W. Va. 1; State v. Conkle, 16 W. Va. 736; State V. Strauder, 8 W. Va. 686; Younger v. State, 2 W. Va. 579. also, Kibler v. Com., 94 Va. 804, 26 S. E. 858; Shiflett v. Com., 90 Va. 386, 18 S. E. 838; Weatherman v. Com., 91 Va. 796, 22 S. E. 349; State v. Sheppard, 49 W. Va. 582, 39 S. E. 676; State v.manded to jail at the conclusion of the Campbell, 42 W. Va. 251, 24 S. E. 875; proceedings for the day, though it State v. Parsons, 39 W. Va. 464, 19 S. usually so appears. Williams v. Com., E. 876; State v. Greer, 22 W. Va. 800; O'Boyle v. Com., 100 Va. 785, 40 S. E. 121; Longley v. Com., 99. Va. 807, 37 S. E. 339; Jones v. Com., 87 Va. 63, 12 S. E. 226. See ante, “In General,” V, J, 2, b, (3), (b), aa. "In looking into the English forms of entries, it will be found that the appearance of the accused is carefully stated upon the record to have been in his proper person." Bond v. Com., 83 Va. 581, 3 S. E. 149. Presence Inferred from Record. The whole record is to be looked to, and if anything appears in the record from which this presence must be necessarily inferred, it is all that the law requires. Benton v. Com., 91 Va. 782, 21 S. E. 495, citing Lawrence v. Com., 30 Gratt. 851; Sperry v. Com., 9 Leigh 623, and Cluverius v. Com., 81 Va. 787; State v. Cross, 44 W. Va. 315, 29 S. E. 527. Although it is necessary that the prisoner shall be present in person when assigned and during his trial, if it be inferred from the record that he was present, that is sufficient, though it is not formally stated that he was present. Lawrence v. Com., 30 Gratt. 845. No presumption that all things were rightly done by the trial court will supply the omission. Gilligan v. Com., 99 Va. 816, 37 S. E. 962; Lawrence v. Com., 30 Gratt. 845; Benton v. Com., 91 Va. 782, 21 S. E. 495; Cluverius v. 93 Va. 769, 25 S. E. 659. Motion for New Trial.-The presence of the defendant must be shown by the record when a motion for a new trial is made and overruled. Bond v. Com., 83 Va. 581, 3 S. E. 149, citing Hooker v. Com., 13 Gratt. 763. See ante, "In General," V, J, 2, b, (3), (b), aa. Presence Sufficiently Shown.Where at the end of the record of the proceedings of the court on the day of the conviction, it is stated: "And thereupon the accused was remanded. to jail," is conclusive that he had been personally present during all the proceedings had that day. Cluverius v. Com., 81 Va. 788; Lawrence v. Com., 30 Gratt. 851. * * The presence of the accused at a trial for felony sufficiently appears from a record which shows the presence of the prisoner, and declares that the jury "retired to their room to consult of their verdict, as follows, to wit: * Whereupon the prisoner, by his counsel, moved the court not to proceed to judgment upon the verdict. aforesaid," but to set it aside as contrary to the law and the evidence. Gilligan v. Com., 99 Va. 816, 37 S. E. 962. See the title VERDICT. Where the record shows that at the beginning of the trial in any day's proceedings the prisoner was sent to the bar in the custody of the sheriff, it will be presumed that he was pres |