Dissenting Opinion.

especially not allow it to influence them in determining whether or not the prisoner was guilty of murder of the first degree, there is no provision of the statute nor any rule of law which required the judge, of his own volition, to make any such statement to the jury; that the evidence being admissible, it does not in a legal sense prejudice the prisoner; and that there was no error in the ruling of the trial court in this respect.

The effect of the opinion of the court is to read into section 3905 an exception with respect to trials of all offenses in which capital punishment may be inflicted, the tendency of which is to afford the worst offenders an avenue of escape from the harsher punishment, which I think is in direct contravention of the policy of our law.

To answer this, the court in its opinion refers to section 4180 of the Code, which provides, that "when a person convicted of an offense, and sentenced to confinement therefor in the penitentiary, is received therein, if he was before sentenced to a like punishment, and the record of his conviction does not show that he has been sentenced under section thirty-nine hundred and five, or thirty-nine hundred and six, the superintendent of the penitentiary shall give information thereof, without delay, to the said Circuit Court of the city of Richmond, whether it be alleged or not in the indictment on which he was so convicted, that he had been before sentenced to a like punishment."

This section is treated by the court as supplementary of section 3905, and as intended to authorize the imposition of the added penalty where it has not been imposed by the trial court. This was doubtless the object of the section. It operates only upon such cases as might have been, but were not, punished under sections 3905 and 3906. I think it equally plain that it does not apply to any case which might not have been punished under those sections. And yet it is a matter of frequent occurrence that a man in prison upon a conviction for murder or manslaughter is brought before the circuit court under section 4180 and the additional punishment imposed upon him. Now

Dissenting Opinion.

in all those cases the man was indicted for murder of the first degree. He was convicted of a less offense, and sentenced to the penitentiary; and, having undergone a former conviction, he comes directly within the terms of section 3905 and section 4180; and it seems to me clear that if the added punishment can be imposed under section 4180 upon a man who was indicted for murder of the first degree, found guilty of a less offense and sentenced to the penitentiary, it necessarily follows that the added penalty could have been imposed at the trial under section 3905. The legislature, in furtherance of its policy to punish habitual offenders, was taking both chances. If the facts were known to the trial court, it was proper to indict and punish him in that court; but if for any reason that was not done, then jurisdiction was conferred upon the Circuit Court of the city of Richmond, at the instance of the superintendent of the penitentiary, to add the additional penalty. But while section 3905 must embrace every case which could come under the influence of section 4180, the converse is not true, and section 4180 does not embrace every case in which the trial court might, under section 3905, have imposed the additional penalty. The court, under section 4180, can only be put in motion by the superintendent of the penitentiary, while under section 3905 the attorney for the Commonwealth and the grand jury are charged with putting the machinery of the law in motion, and that opens the door to every possible avenue of information with respect to the former conviction.

The court being of opinion that the judgment should be reversed upon other grounds, does not deal with the motion to set aside the verdict as contrary to the evidence; but as I am of opinion that the judgment should be affirmed, my opinion must, of course, cover every assignment of error.

I shall not undertake to discuss the facts.

The law governing such cases is nowhere better stated than in Bull v. Com'th, 14 Gratt. 613: "The appellate court will not reverse the judgment, unless by rejecting all the parol

INDEX.

ACKNOWLEDGMENTS.

1. Married Women-Substantial Compliance With Statute.-A
substantial compliance with the statute as to taking and
certifying a married woman's acknowledgment to a deed,
under the former statute on the subject, was all that was
required. A literal compliance was not necessary. Geil v.
Geil, 101 Va. 773, is affirmed. Saffell v. Orr, 768.

ACTIONS. See COSTS, 1.

ADMISSIONS. See EVIDENCE, 1; WITNESSES, 4, 8.

AFFIDAVIT. See CARRIERS, 15.

AFRICANS. See COVENANTS.

AMENDMENTS. See EXECUTIONS, 2; EQUITY, 3, 4.

APPEAL AND ERROR.

1. Appeal from County Court to Circuit Court-Review—Jurisdic-
tion. On a writ of error from this court to a circuit court,
this court has jurisdiction to review the action of the circuit
court and to determine whether or not it had jurisdiction of
a writ of error from that court to the county court, and, if
it had not, to reverse its judgment and enter such judgment
as the circuit court ought to have entered. It is not assign-
able as error, therefore, in this court that the writ of error
from the circuit court to the county court was not perfected
within the time prescribed by law. Louisa County v. Yancey,
229.

2. Assignment of Error-What Not Sufficient.-A statement in a
petition for a writ of error that "without discussing in detail
the instructions asked for and refused by the court, it is
submitted that they expressed correctly the several proposi-
tions stated in them, and that there was evidence supporting
or tending to support them," is not a sufficient assignment of
error, either under section 3464 of the Code, or Rule II of this
court. A petition for a writ of error is in the nature of a

pleading, and must state clearly and distinctly the errors relied
on to reverse the judgment. Washington So. Ry. v. Cheshire,
741.

3. Decree of Appellate

Court-Finality-Res-Judicata-What is
Concluded-Ex Parte Settlements-Surcharge and Falsifica-
tion. When the ex parte settlements of a trustee have been
surcharged and falsified by a bill filed for that purpose, and
the decree of the trial court has been affirmed by this court
with respect to all items of surcharge and falsification, it is a
finality not only with respect to the particular items to which
the attention of the court was called, but with respect to all the
accounts which the trustee had settled before the institution of
the suit. New items existing when the former decree was
made cannot. as a rule, be added by the trial court when the
case is remanded. The former adjudication applies not only
to matters actually then adjudicated, but to every point which
properly belonged to the subject of litigation, or which the
parties, exercising reasonable diligence, might have brought
forward at the time. Miller v. Smith, 651.

4. Constitutional Question-Limit of Jurisdiction.—The constitu-
tional question upon which the jurisdiction of this court solely
depends not being sustained, this court is without jurisdiction
to pass on the merits of the case. Adams Ex. Co. v. Charlottes-
ville W. Mills, 1.

5. Correcting Excessive Judgment. The judgment of a trial court
will not be abated by this court as excessive, unless the record
clearly establishes such excess. Columbia A. Co. v. Pine
Beach Corp'n, 325.

6. Errors of Calculation-Correction.-A manifest or admitted
error in the amount of a judgment at law will be corrected by
this court, without remanding the cause for such correction.
Richmond v. Barry, 274.

7. Executors and Administrators-Ex Parte Settlements of Fidu-
ciary Accounts-Ruling on Exceptions.-No appeal lies to this
court from an order of an inferior court merely overruling
exceptions and confirming a commissioner's report of an er
parte settlement of an executor's account. The remedy is by
a bill to surcharge and falsify the ex parte settlement. Until
surcharged and falsified it is to be taken as prima facie cor-
rect, and an order of this court affirming the order of the in-
ferior court would not make it any more final than it was
before the appeal was taken. Owens v. Owens, 432.

8. Harmless Error.-This court will not reverse a case for the
exclusion of evidence by the trial court which could not have
affected the result. Lynchburg Milling Co. v. Bank, 639.