dissenting:
It is with, regret and diffidence that I find myself compelled 'to differ with the majority of the court about the judgment which should be rendered in this case. However, believing as I do, that “a venerable landmark in our criminal jurisprudence” is being ignored, if not destroyed, and a principle overthrown which Avas established in wisdom for the protection of life and liberty, I feel constrained to dissent, and to give my reasons therefor.
Three rules seem to have been so firmly settled in criminal jurisprudence that no one denies them.
Pirst. That á verdict must be rendered by the entire jury in open court, and in the actual presence, of the prisoner, or it is invalid.
Second. That the record must show affirmatively that all the ¡essential formalities in the procedure have been complied Avith; that a failure to do so> constitutes error on the face of the record, •and that they cannot be dispensed with or affected by the consent of the accused.
Third. The presumption that a court of general jurisdiction -acts rightly cannot supply the substantive or essential parts of the record in a criminal case. Hopt v. Utah, 110 R. S. 571; Sperry’s Case, 9 Leigh, 623; Spurgeon’s Case, 86 Va. 652; Jones’ Case, 87 Va. 65; Cawood’s Case, 2 Va. Cases, 527.
These rules have been strictly adhered to in this State. In Cawood’s Case, supra, the prisoner was arraigned on a paper purporting to be an indictment found at the same term of the court, endorsed “a true bill” by him who was the foreman of the grand jury then empanneled, pleaded not guilty to the indictment and submitted to two trials. The record said: “ Benjamin Cawood, who stands indicted for murder * * * was thereof arraigned,” yet because there was no order affirming that the grand jury found the indictment, he Avas held not to have been indicted. Exactly the same state of facts, except *829that there was but one trial, appeared in Simmons’ Case, 89 Va. 156, and the same judgment was entered. In McKinney’s Case, 8 Gratt. 589, an indictment was properly found against three persons, but the order of court recording the finding used the wrong given name for one of them, and he was held not to have been indicted. In Spurgeon’s Case, 86 Va. 652, a new trial was granted by this court because the record did not show affirmatively that the list which was furnished the sheriff' with the writ of venire facias was furnished by the judge of the court. A new trial was awarded Charlie Jones, 81 Va. 63, because it did not affirmatively appear that a writ of venire facias was issued, although the record was, “ Thereupon came a jury to-wit (naming them), who-, being selected and tried in the manner prescribed by law for the selection and trial of juries in' cases of felony.” A new trial was awarded Sperry because the record did not show that on the second day of his trial he was. taken into court. Sperry’s Case, 9 Leigh, 623.
■Many similar cases might be cited, but these are enough to-establish the rule that “all of the essentials to the judgment must affirmatively appear, and none can be supplied by intendment, inference, or argument.”
The illustrations of Judge Brocken'boroilgh in Cawood’s case are very pertinent to this case. They are: First, an issue made up. in fact but not stated in the record; jury sworn to try “the issue joined,” verdict and judgment rendered; judgment set aside because record did not show that issue was joined; second, an issue appears in the record, a jury sworn and a judgment rendered for “the damage assessed by the jury,” but no other noting of the verdict, judgment set aside because verdict did not sufficiently appear.
Let us apply these principles and illustrations to this case. The record is, “and the jury, having heard in full the argument of counsel, retired to their room to consult of their verdict as follows, to-wit: "We, the jury, find the prisoner, A. C. Gilligan, *830.guilty of murder in the second degree, as charged in the within •indictment, and ascertain his term of imprisonment to be • eighteen (18) years in the penitentiary; whereupon the prisoner, by his counsel, moved the court not to proceed to judgment •upon the verdict aforesaid, and further moved the court to have •the verdict of the jury set aside as contrary to the law and the «evidence, and grant the prisoner a new trial; which said motions were continued until to-morrow morning at ten o’clock. And •the prisoner, A. C. Gilligan, was again remanded to jail.”
This order shows that the, jury retired to their room, and ■there it leaves them. To- a certain extent, they were, as in the Longley Case, ante p. 798, in the constructive presence and under the control of the court, 'but they were not in the actual presence •of the prisoner, and until they again came into his actual presence they could render no verdict. Actual, corporal presence, •is the presence required by the law. To say that the jury were in the constructive presence of the court, and the prisoner in its •actual presence, is to say that the prisoner and the jury were mot together.
When and how did the jury return into court? What inti■mation is there in the record that they did return, except that the '-form of the verdict which they retired to consider of appears in ■the order? If the court had told them to consider and say whether the prisoner was guilty of murder in the second degree ■and should be confined in the penitentiary eighteen years, no more apt words could have been chosen for the order than those which appear. “ The words To-wit’ are used to call attention to a more particular specification of what has preceded,” not to introduce what succeeded in point of time. What had preceded? The retirement of the jury to consider what their ver•dict should he, and, unless the use and meaning of the videlicet is reversed, the words which follow only show that they were considering whether it should be in the words quoted. It is •only by argument that it can be affirmed that the jury returned *831•that verdict, or any verdict, in open court. The argument, as 1 understand.it, is: There could be no verdict unless the jury returned it in open court; they “retired to consult of their ver■dict as follows;” what follows is their verdict, therefore they returned into court. It seems to me that it is arguing in a circle to say, they came into court because it is a verdict; it is a verdict because they came into court.
But if we admit that the record shows that the jury adopted the words quoted as their verdict, the question still remains: How did it get into court? It is admitted by all that it could properly be rendered only in open court by the entire jury, and that it must in some way appear that this was done. Bor anything which appears in the record the foreman alone may have presented it, or the sheriff may have conveyed it to the court from the jury room. It is only by saying such a course was wrong and should not be inferred, that the conclusion is reached that it was not pursued. The answer is, being a material fact necessary to sustain the judgment, no inferences are admissible, .and the absence of proper averment is the error. We need not presume that it was wrongfully done. We simply don’t know how it was done, and therefore cannot say that it was rightly •done.
But it is further argued that soon thereafter, or at least as a •consequence of the appearance in court of what is called the verdict, the prisoner “moved the court not to proceed to judgment on the verdict aforesaid,” and to “set aside the verdict of the jury,” and the conclusion is reached that this action of the prisoner has removed any doubt which may have existed in regard to the proper delivery of the verdict.
In other words, because a prisoner who is about to be sentenced on an improper finding which the court calls a verdict, makes the two motions which the law prescribes for avoiding-such a sentence, and in doing- so necessarily called it a verdict, he has validated the invalid and supplied a hiatus in the record. *832If so, the means provided for his protection have become snares and pitfalls. If he cannot waive the actual finding' of an indictment by pleading to it; if he cannot consent to the court imposing punishment on him without a verdict; if he does not waive the lack of the record of the finding of the indictment by moving to quash the indictment—McKinney’s Case, supra—how does he waive the record evidence of the actual presence of the jury, and of the proper rendition of a verdict by asking the court not to proceed on the verdict because it is illegal?
To support the conclusion that the record sufficiently shows the proper rendition of the verdict, it is said “that while no intendment can supply an omission from the record of that which is material, all proper inferences may and must he drawn from that which does appear.” The position of the majority of the court seems to me to depend largely on the correctness of this proposition. I cannot give my assent to it. Where affirmative averment is required, inference is excluded. There can be no necessity or use for inference when the fact is averred. “ Inference is a proposition, or truth drawn from another which is laid down as true.” That the jury came into- the court room and delivered a verdict in the prisoner’s presence is a proposition which is not directly asserted in the record, but must be. drawn from another, viz., that the form of a verdict is there which the prisoner moved to set aside, and asked that judgment thereon be arrested.
While by the record the jury are in their room, I am unwilling to start the prisoner to the penitentiary.
On the other points discussed in the opinion of the majority of the court I concur. I had some doubts on one of them, but they were removed by the opinion.
Buohahait, J., concurs with Phlegab, J.
Affirmed.