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any appeal in any appellate court shall not be included as applying to the provisions of this act. Sec. 4048. Jurors in case of misdemeanor.-Jurors drawn or sum- As Amended
1887-8, p. 18. moned under chapter one hundred and fifty-two shall be jurors as well for 87 Va. 63. the trial of cases of misdemeanor as of civil cases, and all the provisions of that chapter except the provisions of sections thirty-one hundred and sixty-two and thirty-one hundred and sixty-six and that provision of section thirty-one hundred and sixty which directs the compensation and mileage of jurors to be paid out of the county or corporation levy (which excepted provisions shall apply exclusively to jurors and juries in civil cases) shall extend as well to jurors and juries in cases of misdemeanor as to jurors and juries in civil cases. And sections thirty-one hundred and thirty-nine, thirty-one hundred and forty, thirty-one hundred and fortyone, thirty-one hundred and fifty-one, thirty-one hundred and fifty-four, thirty-one hundred and fifty-five, thirty-one hundred and fifty-six, thirtyone hundred and sixty-one, thirty-one hundred and sixty-three, thirty-one hundred and sixty-four, thirty-one hundred and sixty-seven, and thirtyone hundred and sixty-eight shall apply to jurors and juries in all cases, criminal as well as civil.
Sec. 4048 a. Giving a defendant in any case of misdemeanor the 1895-6, p. 163. right to waive trial by jury.-In the trial of any misdemeanor case the defendant shall have the right to waive a trial by jury and submit all matters of law and fact for trial the court. Such waiver shall be entered of record.
Sec. 4049. Compensation and mileage of jurors in criminal As Amended cases; when and by whom paid.—The compensation and mileage 1887-8, p. 18. of jurors in all criminal cases shall be the same provided for in civil cases in section thirty-one hundred and sixty, except that a juror summoned for the trial of a case of felony shall be entitled to receive one dollar per day for each day's attendance on the court to which he is summoned whether he serves on the jury or not, which compensation and mileage shall be paid out of the treasury of the state except when the same is divided according to section thirty-one hundred and sixty such part as is required to be paid out of the county or corporation levy. If the same person attend as a juror in a felony case and also as a juror in any other case he shall receive compensation and mileage in only one case.
OF EXCEPTIONS, WRITS OF ERROR, AND EXECUTION OF JUDGMENT.
Sec. 4052. Writs of error in criminal cases, where lie; when
As Amended for accused; when for state. A writ of error shall lie in a criminal 1897-8, p. 622. case to the judgment of a circuit court or the judge thereof or of a corporation court or of a 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 the violation of law relating to the state revenue or for the violation of a law therein declared to be unconstitutional it shall lie also for the commonwealth.
As Amended 1895-6, p. 102.
Sec. 4059. Provisions which apply to criminal as well as civil cases.-Sections thirty-four hundred and seventy-five, thirty-four hundred and seventy-six, thirty-four hundred and eighty-three, thirty-four hundred and ninety-two, and thirty-five hundred and seven shall apply as well to criminal as to civil cases: provided, that in a felony case in the court of appeals if the plaintiff in error file with the clerk of the said court an affidavit that he is unable to pay or secure to be paid the costs of printing the record in the case the printing shall be done as if the costs had been paid and the clerk shall not be required to account for and pay the same into the treasury; but if the said costs be not paid or secured to be paid and upon the hearing of the case the judgment of the court below be wholly affirmed by the court of appeals the said court in affirming shall also give judgment in behalf of the commonwealth against the plaintiff in error for the amount of the said costs to be taxed by its clerk.
1895-6, p. 236.
Sec. 4064 a. Transportation of convicts to the penitentiary. Every person sentenced by a court to confinement in the penitentiary shall as soon as may be be conveyed to the penitentiary in the manner hereinafter provided. The clerk of the court in which the person is sentenced shall forthwith transmit to the superintendent of the penitentiary a copy of the judgment, and if he fail to do so he shall forfeit one hundred dollars. Upon receiving such copy the superintendent of the penitentiary shall dispatch a guard to the county or corporation with a warrant directed to the sheriff authorizing him to deliver the convict, whose duty it shall be to take charge of the said person and convey him to the penitentiary. If because of the number of persons to be conveyed to the penitentiary or because there is reason to apprehend an attempt to rescue the superintendent shall deem it necessary he may dispatch more than one guard and make provision for the employment by the guard of persons to assist him in the performance of his duty. The superintendent shall be entitled to receive from the auditor of public accounts such certificates of transporta. tion as he may require in executing the provisions of this act, and other expenses incurred by him in the execution thereof he shall pay, the same to be allowed him in the settlement of his accounts: provided, that the superintendent may in any proper case require the sheriff of any county or the sergeant of any corporation to deliver such convict at a railway station designated by the superintendent, to be there delivered to his authorized agent, and for such services the court of such county or corporation shall allow the said sheriff a reasonable compensation, to be paid out of the public treasury.
Sec. 4065. [Repealed. Acts 1895-'96, page 236.)
Sec. 4071. How sentence of confinement in jail until fine paid is executed ; limitation of confinement.-If a person sentenced to be confined in jail a certain time and afterwards until he pay a fine and costs of prosecution fail to pay such fine and costs before the end of said term he shall continue in confinement until the same be paid or his discharge be
As Amended 1895-6, p. 686.
ordered by the court or the judge thereof in vacation or he be released by reason of the expiration of the limitation for such confinement prescribed by law. Sec. 4074. How person confined in jail by court or justice As Amended
1895-6, P. 686. until fine is paid, or under capias pro fine, released.- When a per. son is confined in jail by order of any court or justice until he pay a fine and the costs of prosecution or the costs where there is no fine or under a capias pro fine, on application to the county or corporation court of the county or city where confined or to the judge thereof in vacation such court or judge in vacation as the case may be, if to such court or judge it shall appear proper, may order the person to be released from imprisonment without the payment of the fine and costs or costs where there is no fine, and he shall not thereafter be imprisoned for failure to pay the fine and costs or costs in that case: provided, however, that the attorney for the commonwealth of said county or city shall have five days' notice of such application.
Sec. 4075. How person confined in jail by court or justice As Amended until fine is paid released; limitation of confinement.-If a person
1895-6, P. 686. is confined in jail by order of any court or justice until his fine and costs or costs where there is no fine are paid or under a capias pro fine such confinement shall not exceed ten days when the fine and costs or costs where there is no fine are less than five dollars, when less than ten dollars it shall not exceed twenty days, when less than twenty-five dollars it shall not exceed one month, when less than fifty dollars it shall not exceed two months, and in no case shall the confinement exceed three months. The jailer upon commitment shall note the amount of fine and costs or costs where there is no fine and the date of commitment and shall without further order or direction release the defendant from jail promptly upon the expiration of the limitation above prescribed, and said defendant shall not thereafter be imprisoned for failure to pay the fine and costs or costs in that case; but nothing herein or in the preceding section shall prevent the issue of a writ of fieri facias after such release from jail.
Sec. 4076. [90 Va. 386.]
OF TAXATION AND ALLOWANCE OF COSTS.
Sec. 4079. [93 Va. 14.]
As Amended demeanor.-Payment shall not be made out of the treasury to a wit- 1897-8, p. 829. ness attending for the commonwealth in any prosecution for a misdemeanor unless it appears that the sum to which the witness is entitled cannot be obtained (if it be a case wherein there is a prosecutor and the defendant is convicted) by reason of the insolvency of the defendant, or if it be a case in which there is no prosecutor by reason of the acquittal or insolvency of the defendant or other cause: provided, that not more than three witnesses shall be paid out of the state treasury in any case of misdemeanor tried before a justice. Sec. 4084. By whom certificate of allowance to be made ; vouchers
As Amended to accompany it. The certificate required by section three thousand 1897-8, p. 709. five hundred and twenty-seven shall when the payment is to be to a clerk be from the court whereof he is clerk, and when it is to be to a sheriff or
other officer from the court in which the prosecution is or to which a justice shall certify as hereinafter mentioned. Any other expense incident to a proceeding in a criminal case which is payable out of the treasury otherwise than under the preceding section or under section seven hundred and sixty-seven shall be certified by such last mentioned court where it is not otherwise provided. With the certificate of allowance there shall be transmitted to the auditor of public accounts the vouchers on which it is made. The court in passing upon any account for fees or expenses required to be certified by it under this section before certifying the said account may in its discretion require proof of the correctness of any item thereof notwithstanding the affidavit of the party in whose favor such account is. And in all cases a justice of the peace sball file with his account a copy of the warrant on which his proceedings were had, but said copy need not be forwarded to the auditor unless requested by him.
GENERAL PROVISIONS AS TO PROCEEDINGS IN CRIMINAL CASES.
1889-90, p. 79. Sec. 4089 a. Judges of county and corporation courts to set 89 Va. 171. 90 Va, 328.
criminal cases for trial.-It shall be the duty of the judge of each county and corporation court at least ten days before the commencement of every term of his court to set for trial on a certain day of the term each criminal case then pending, and thereupon the clerk shall arrange the docket acccordingly and issue subpænas for witnesses to attend on the day fixed for the trial of the case in which they are required to appear; but this act shall not be so construed as lo deprive the court of the right to proceed with the trial of any case at the same term at which an indictment is found: provided, the defendant is in actual custody or out on
bail. 1897-8, p. 929. Sec. 4091 a. Appointment of special prosecuting attorneys in proper
cases.-In any case of felony or misdemeanor pending in any county or corporation court of this state in which the commonwealth's attorney is so situated that it is improper for him to act the court of its own motion or the judge thereof in vacation shall have authority to appoint a special prosecuting officer for that case, who shall have all the powers and privileges of the regular commonwealth's attorney and receive the same
compensation. As Amended Sec. 4093. How recognizances payable; penalty and condition; 1897-8, p. 846.
when surety required; when dispensed with; what order of Previous
Amendment court to state.-Recognizances in criminal cases shall be payable to 1895-6, p. 254. 3 Va. L. R. 373. the commonwealth of Virginia. Every recognizance under this chap
ter or under chapter one hundred and ninety-one and the chapters following to one hundred and ninety-nine inclusive shall be in such sum as the court or officer requiring it may direct. If it be to answer for a misdemeanor or if required of a witness it shall be with or without security as the court or officer may direct; but in all other cases shall be with security deemed sufficient by the court or officer taking it. The condition when it is taken of a person charged with a criminal offence shall be that he appear before the court, judge, or justice before whom the proceedings on such charge will be at such time as may be prescribed by the court or officer taking it to answer for the offence with which such person is charged, and when it is taken of a witness in a case against any such
person shall be that he so appear to give evidence on such charge, and in either case shall be that the person or witness shall not depart thence without the leave said court, judge, or justice; when taken for any other purpose than to appear so to answer or give evidence it shall be with condition that the person of whom it is taken shall keep the peace and be of good behavior for such time not exceeding one year as the court or officer requiring it may direct; and if such court or officer direct it may when taken of a person so charged be with condition for so keeping the peace and being of good behavior in addition to the other conditions of his recognizance. And when such recognizance is taken by a court of a person to anser a charge or of a witness to give evidence it shall be sufficient for the order of the court taking said recognizance to state that the party or parties recognized were duly recognized in such sum as the court may have directed with such surety as the court may have accepted for his or their appearance before such court at such time as may have been prescribed by the court to answer for the offence with which such person is charged or to give evidence, as the case may be.
Sec. 4099. How penalty remitted.-When an action or scire facias on a As Amended recognizance the penalty is adjudged to be forfeited the court may on an 1891-2, p. 562. application of a defendant remit the penalty or any part of it and render judgment on such terms and conditions as it deems reasonable.
Sec. 4106. What criminal offences police justices and justices
As Amended of the peace may try.—The several police justices and justices of 1897-8, p. 289.
Previous the peace, in addition to the jurisdiction exercised by them as conserva Amendments tors of the peace, shall have concurrent jurisdiction with the county and 1893-4 p. 438. corporation courts of the state in all cases of violations of the revenuc laws 88 Va. 618.
91 Va. 726. of the state and of offences arising under the provisions of chapter one 93 Va. 159. hundred and eighty-seven, sections thirty-eight hundred and one, thirty-1 Va. L. R. 24.
2 . , eight hundred and two, thirty-eight hundred and three, and thirty-eight 858. hundred and four of the code of Virginia, and shall have exclusive original jurisdiction for the trial of all other misdemeanor cases occurring within their jurisdiction, in all of which cases the punishment may be the same as the county and corportion courts are authorized to impose. But the grand juries hereafter sworn in the county and corporation courts are hereby authorized and empowered to inquire into and bring to the attention of the court by presentment or indictment all such misdemeanors as were cognizable by such grand juries prior to March fifth, eighteen hundred and ninety-six; and in all cases of misdemeanor in which a presentment or indictment is found by a grand jury and for the trial of which such justices have exclusive original jurisdiction a copy of such indictment or presentment, together with the names of the witnesses upon whose testi