Lewis and Grant v. Commonwealth , 212 Va. 411 ( 1971 )

212 Va. 411 (1971)

GEORGE WILLIAM LEWIS, JR.
v.
COMMONWEALTH OF VIRGINIA.

Record Nos. 7734, 7735, 7736 and 7737.

Supreme Court of Virginia.

November 29, 1971.

Present, All the Justices.

Statutory provision requiring presence of accused at trial extends to time when court receives message from jury, discusses message with counsel and dispatches answer to jury. Conformity is essential to jurisdiction and accused cannot waive it.

Error to a judgment of the Circuit Court of Fauquier County. Hon. Rayner V. Snead, judge presiding.

William J. Cox (Cox, Woodbridge and Smith, on brief), for plaintiff in error in Record Nos. 7734, 7735, 7736 and 7737.

Robert E. Shepherd, Jr., Assistant Attorney General (Andrew P. Miller, Attorney General, on brief), for defendant in error in Record Nos. 7734, 7735, 7736 and 7737.

Per Curiam.

These defendants were jointly tried on indictments charging them with felonious assault (maiming) and attempted rape. They were found guilty on each indictment by a jury which fixed the punishment of each defendant at ten years on each count.

The single issue here revolves around communications exchanged between the court and jury after the jury had retired to deliverate. The jury sent a message to the trial judge asking that the jury be allowed to hear the testimony of Grant, who had not testified. Upon receiving this message the trial judge avdised counsel of the jury's request and, after a discussion with counsel, sent a written message to the jury which read as follows: "You must base your verdict on the evidence and instructions before you."

No objection was made to this procedure by defendants' counsel. Neither of the defendants was present when the message from the jury was received, during the subsequent discussion between the court and counsel or when the message from the court was dispatched to the jury.

Code | 19.1-240 provides "A person tried for felony shall be personally present during trial. . . ."

This provision, which is declaratory of a principle of the common law, is an essential part of the process of law provided for the trial of persons charged with a felony. Conformity to the rule is essential to jurisdiction and the accused cannot waive it. Noell Commonwealth, 135 Va. 600, 115 S.E. 679 (1923).

These cases are controlled by Palmer Commonwealth, 143 Va. 592, 130 S.E. 398 (1925), where we said:

{". . . Generally stated, the rule is that he must be present on his arraignment, when any evidence is given or excluded, when the jury is charged,"

when the trial court wishes to communicate with the jury in answering questions by them, and when the jury receives further instruction. . . ." (emphasis supplied) 143 Va. 605, 130 S.E. 402."

The cases are reversed and remanded for a new trial.

Reversed and remanded.