dissenting.
The specific felony for which Gary Patrick Hunter was to be tried when he failed to appear for trial is irrelevant to a prosecution under Code § 19.2-128(B). The language of the statute demonstrates the irrelevance of the specific type of felony.
Any person charged with a felony offense who willfully fails to appear before any court as required shall be guilty of a Class 6 felony. Any person charged with a misdemeanor offense who willfully fails to appear before any court as required shall be guilty of a Class 1 misdemeanor.
Code § 19.2-128(B). It should be evident from reading the statute that willful failure to appear for the trial of any felony provides the predicate for a prosecution.
Moreover, the indictment against Hunter read as follows:
The Grand Jurors of the State of Virginia, in and for the body of the County of Amherst, upon their oaths present that GARY PATRICK HUNTER, heretofore, to-wit: on the 27th day of SEPTEMBER, 1989, in the said County of Amherst, and within the *727jurisdiction of the Circuit Court of Amherst County did unlawfully and feloniously and willfully fail to appear before the Circuit Court of Amherst County when required to do so in violation of Virginia Code Section 19.2-128, 1950, as amended, against the peace and dignity of the Commonwealth of Virginia.
Nothing in the indictment states the nature of the felony for which Hunter was to be tried on the day that he failed to appear.
Consistent with the statutory language and the wording of the indictment, Hunter and his counsel entered into the following written stipulation with the Commonwealth’s attorney prior to trial:
STIPULATION
1. Gary Patrick Hunter was charged with a felony which was to be tried in Amherst Circuit Court on September 27, 1989.
2. Gary Patrick Hunter was released on bond pursuant to Chapter 9 of Title 19.2 of the Code of Virginia of 1950 prior to trial on September 27, 1989. He was admitted to bail on May 10, 1989.
3. Gary Patrick Hunter signed a waiver of extradition from the State of Ohio on January 23, 1990, to return to Virginia.
The stipulation was neither partial or qualified.
The trial judge first injected the issue of the specific type of felony when he informed the prospective jurors of the robbery charge. The trial judge overruled Hunter’s objection and motion for a mistrial. Later, when the Commonwealth offered the bond form as an exhibit, Hunter’s counsel again objected because the form contained the word “robbery.” The Commonwealth’s attorney agreed to delete the word, stating, “Judge, I have no problem with whiting [the word robbery] out.” However, the trial judge refused to make the deletion because he believed the jury was entitled to know the specific type of felony charged. The trial judge erred when he injected the robbery issue and when he refused to make the deletion suggested by both counsel.
Simply put, when the specific type of felony is not relevant to proof of any element of the charged offense, proof of the nature of the felony is prejudicial. See McAmis v. Commonwealth, 225 Va. 419, 422, 304 S.E.2d 2, 4 (1983) (per curiam); Harmon v. Commonwealth, 212 Va. 442, 446, 185 S.E.2d 48, 51 (1971); Powell v. Commonwealth, 13 Va. App. 17, 25, 409 S.E.2d 622, 627 (1991); Joyner v. *728Commonwealth, 10 Va. App. 290, 298, 392 S.E.2d 822, 826-27 (1990). Contrary to the assertion in the majority opinion, proof of “the material element that Hunter was charged with a felony’ ’ did not require naming the felony. The wording of the statute is the primary source for determining the elements of a statutory offense. According to Code § 19.2-128(B), the Commonwealth was required to prove only that the offense for which Hunter was to have been tried was a felony. In his concurring and dissenting opinion, Barrow, J., cogently explains why “proof of the nature of the offense was not necessary to prove that the offense was a felony’ ’ and why it was prejudicial. I join in that portion of his opinion.
The majority further concludes that because robbery is a “serious offense” the jury was entitled to know that it was the felony. I disagree with that reasoning. Every felony is a “serious offense.” That is precisely the reason why the legislature made the willful failure to appear for any felony trial a felony. Moreover, within the classification of felony offenses, robbery, per se, is certainly not as “serious” as murder, rape, or a multitude of other felonies. Indeed, the offense of robbery may, itself, vary in seriousness depending on circumstances. The jury was not informed, for example, whether the taking was accomplished merely by intimidation. See Harris v. Commonwealth, 3 Va. App. 519, 351 S.E.2d 356 (1986). Proof that the felony was robbery did not ipse dixit make it more likely than not that Hunter ‘ ‘had a reason for willfully failing to appear.” Reference to the specific nature of the felony had no bearing on whether the failure to appear was willful.
Citing Glover v. Commonwealth, 3 Va. App. 152, 162, 348 S.E.2d 434, 441 (1986), aff’d per curiam, 236 Va. 1, 372 S.E.2d 134 (1988), and Colclasure v. Commonwealth, 10 Va. App. 200, 202, 390 S.E.2d 790, 791 (1990), the majority asserts that “Hunter was not entitled to foreclose the Commonwealth from presenting relevant evidence to prove an essential element of the charged offense by stipulating that the evidence would establish the fact.” Both cases are inapposite. In neither case did the Commonwealth and the defendant reach a stipulated agreement. In Glover, this court specifically said that “[t]he Commonwealth ... is not obliged to enter into an agreement whereby it is precluded from putting on its evidence simply because the defendant is willing to make a qualified stipulation.” 3 Va. App. at 162, 348 S.E.2d at 441 (emphasis added). Likewise, in Colclasure, the defendant offered stipulations that the Commonwealth did not accept. 10 *729Va. App. at 202, 390 S.E.2d at 791. The issue in this case, however, is not whether the Commonwealth was obligated to agree to a stipulation limiting the evidence. The Commonwealth voluntarily agreed with Hunter to a full stipulation. It was the trial judge that insisted on admitting the evidence of the specific offense over the Commonwealth’s agreement to deleting the word “robbery.” Hunter could not foreclose the Commonwealth from presenting that which the Commonwealth did not seek to present. The prejudicial error occurred when the trial judge concluded on his own initiative that evidence of “robbery” rather than “felony” had to be proved. The trial judge’s error in informing the jury of the specific offense was reversible error.
The conviction should also be reversed because the evidence does not prove that Hunter’s failure to appear was willful. See Code § 19.2-128(B). Hunter’s trial initially was scheduled for June 9, 1989. Hunter was present in court when the date was set and signed the bail form. In May 1989, the trial was continued to August 22, 1989. On June 13, 1989, the trial was continued to September 27, 1989. Hunter was not present when those changes were made and was not given written notice of any of those changes. Citing Virginia Department of Corrections v. Crowley, 227 Va. 254, 263-64, 316 S.E.2d 439, 444 (1984), and State v. Blackbird, 609 P.2d 708, 710 (Mont. 1980), the majority holds that notice to Hunter’s attorney was tantamount to notice to Hunter. The majority then concludes that such constructive notice proved that Hunter’s failure to appear was willful. Neither case, however, supports the majority’s reasoning. In Blackbird, the court reversed the conviction precisely because the jury “instruction imputed any knowledge or notice on the part of defendant’s attorney regarding the trial date to the defendant.” Id. In Crowley, the issue was whether defendant’s counsel was still counsel of record when a motion was served by mailing it to counsel’s office. Crowley, 227 Va. at 263-64, 316 S.E.2d at 444. Neither case supports the majority’s holding that actual notice to Hunter’s counsel was prima facie proof of actual notice to Hunter. Mere proof that Hunter’s counsel knew the trial date was insufficient to prove that Hunter had actual knowledge of the date.
Without objection on the record, Hunter’s first defense counsel, Massie, testified as a prosecution witness. Because no issue was raised at trial or on this appeal concerning attorney-client privilege, the record proves Massie testified that Hunter called him two or three times a week to discuss the progress of his case. Massie testified, however, *730that when the hearing was held on June 13 to set the trial for September 27, Hunter was not present. Massie did not send Hunter any written notice of the changed date. He testified:
I would say I told him— and we talked about the date, we talked about the date in relationship to other matters that were pending against him.
It was clear in my mind that certainly—a case of this severity—a case where you’re talking about going to the penitentiary for life—he knew what the court date was, and I told him, I’d say a half a dozen times.
We met over there one time in Preston Sawyer’s office, a lawyer in Lynchburg, and it was again related towards the end of August—at least. That’s one time specifically we discussed court dates when he and I were there and Mr. Sawyer was his attorney in other—other things.
Massie testified that the last time he could recall talking to Hunter “was some time around that—in August—the second or third week in August.”
Massie further testified that he never wrote to Hunter while he represented Hunter. He also testified that he was told by the judge who scheduled the September trial date in Hunter’s absence to send a letter to Hunter informing Hunter of the trial date. Massie did not do so. Indeed, Massie testified, “I had [Hunter’s] mother’s address .... I don’t know whether I had a direct address for [Hunter] or not.” Massie’s file contained no notation that he had informed Hunter at anytime of the trial date. Massie’s file indicates that Hunter’s trials were set for May 8, 1989, June 9, 1989, August 22,1989, and September 27,1989.
Although Massie testified that he discussed court dates with Hunter in the meeting with Hunter and his Lynchburg attorney, the attorney who was representing Hunter in Lynchburg testified, over an attorney-client privilege objection, that his only meeting with Hunter was on July 10 in his office. He did not recall discussing the specific date of September 27 with Hunter. He testified:
[COMMONWEALTH’S ATTORNEY]: There’s no question in your mind he knew he was supposed to be here September the 27th?
[HUNTER’S ATTORNEY]: I object. He’s leading his witness.
*731THE COURT: Do you recall discussing the exact date?
THE WITNESS: No, I don’t, Judge.
THE COURT: Of September 27th?
THE WITNESS: No, I do know that the Lynchburg case according to my records, was set for the 26th of September. I do remember that the case in Lynchburg was to be tried prior to the case in Amherst. I didn’t realize until looking at my notes that apparently they were back to back, day after day.
THE COURT: So you don’t recall discussing any specific date for the trial—
THE WITNESS: Not the exact date, no, sir.
THE COURT:—in Amherst with Mr. Hunter?
THE WITNESS: No, sir.
THE COURT: Just discussing a trial date, is that right?
THE WITNESS: Discussing the fact that there was to be a trial in Amherst and the trial—I mean, I was aware of the trial date at the time, although I didn’t make note of it in that apparently the trial in Amherst was to take place after the trial in Lynchburg.
He further testified:
Q: Is it your testimony that at the time you talked with [Hunter] you were not consciously aware that [the Amherst trial date] was September 27th?
A: That’s true.
His file contained no notation that he had discussed with Hunter the September 27 date of Hunter’s Amherst trial.
Massie’s secretary testified that she verbally informed Hunter of the trial date; however, she could not recall the last time she told Hunter of the date. She testified that she recalled telling Hunter because:
Well, it was the seriousness of the crime, itself. Mr. Massie wasn’t taking this lightly. I wasn’t. We always try to be sure that the client knows when he’s supposed to be in court.
*732She made no notations in the file that Hunter had called or that she had given him any of the four trial dates. Although she testified that she informed Hunter three or four times of the last trial date, she could not recall how many times she told Hunter of the earlier trial dates. She also could not recall the first three trial dates or even the months in which those trials were to be held.
Massie testified that Hunter would often leave messages and notes for him. Massie also testified that Hunter was more interested in assisting with the preparation for trial than any of his other clients. Hunter testified that he often took documents to Massie and that the last trial date he was given was August 22. Massie did not testify that he had informed Hunter of the cancellation of that trial. Indeed, Hunter and another witness testified that Hunter appeared in court on August 22. Hunter testified that the case was not called, and he was told by “the bailiff that [the] court date had been cancelled.” Hunter testified that he “thought that they had dropped the charges.” He said that he called Massie’s office and was told Massie was on vacation.
Hunter testified that in September he moved out of his house on Forest Brook Road because he and his wife were having problems. He moved to a house that he owned on Hawes Street. Prior to the September trial, a summons was issued for Hunter’s appearance at trial. Attempting to serve the summons, Deputy Hughes went “by the house [on Forest Brook Road] three, four, five, six, seven times looking for [Hunter].” He did not speak to Hunter’s wife and did not tell anyone that he was seeking Hunter. Officer Calloway looked for Hunter after Deputy Hughes did not serve Hunter. Calloway, however, did not knock on the door of the house at the address listed on the summons. He did not make inquiry at either of the two addresses he had for Hunter because he did not see any vehicles at the houses.
Hunter testified that during this time he was living at the Hawes Street residence and that, due to the nature of his business as a contractor, he travelled out of Lynchburg to various job sites. Hunter testified that he went to Ohio in the latter part of October 1989 to work on a construction contract. No evidence proved that Hunter’s change of address or visit to Ohio was done, as stated by the majority, “to prevent the police from locating him.” Hunter testified that no one told him that the sheriff’s deputies were looking for him. Hunter was arrested in Ohio in January 1990. In February 1990, when Hunter was returned to Virginia and jailed he gave his address as Hawes Street.
*733This evidence failed to prove beyond a reasonable doubt that Hunter’s failure to appear at trial was willful. It does not exclude the reasonable hypothesis that Hunter had no actual notice of the last trial date. None of the three cases relied upon by the majority supports their conclusion that Hunter acted willfully in this case. In Smith v. United States, 583 A.2d 975 (D.C. 1990), the court reversed a conviction because the defendant appeared on the proper day but trial had been shifted to another courtroom. The court observed that the written notice-to-return form did not provide the defendant with guidance concerning administrative changes. Id. at 979 n.7. In Trice v. United States, 525 A.2d 176 (D.C. 1987), the defendant was convicted after he failed to appear on the date that was specified on the bail release document. Id. at 177. However, the trial date had never been continued or changed from the date that was “stated immediately above [the defendant’s] signature.” Id. at 179. Likewise, in Raymond v. United States, 396 A.2d 975 (D.C. 1979), the defendant was in court when the hearing date was set and signed a document containing the date of the hearing. Id. at 976. That hearing date also had not been changed.
“[Willfulness must be shown by evidence that the defendant’s failure to appear was knowing, intentional and deliberate rather than inadvertent or accidental.” Smith, 583 A.2d at 979 (citing Trice, 525 A.2d at 181). The evidence in this case does not exclude the latter hypotheses. I dissent.