*

CHAP. I.

(See 1 Rev. Code, ch. 200, p. 355.)

An act to amend the penal laws of this commonwealth, passed December fifteenth, 1796.

Sect. 1. Be it enacted, that no crime whatsoever, committed by any free person against this commonwealth (except murder of the first degree) shall be punished with death within the same. (a.) ́

Sect. 2. And whereas the several offences, which are included under the general denomination of murder, differ so greatly from each other in the degree of their attrociousness, that it is unjust to involve them in the same punishment. Be it further enacted, that all murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of wilful, deliberate, and premeditated killing, or which shall be committed in the perpetration, or attempt to perpetrate, any arson, rape, robbery, or burglary, shall be deemed murder of the first degree; and all other kinds of murder shall be deemed murder of the second degree; (b) and the jury before whom any person indicted for murder shall be tried shall, if they find such person guilty thereof, ascertain in their verdict, whether it be murder in the first or second degree; but if such person shall be convicted by confession, the court shall proceed by examination of witnesses to determine the degree of the crime, and to give sentence accordingly.

Sect. 3. And be it further enacted, that every person liable to be prosecuted for petit treason, shall in future be indicted, proceeded against, and punished, as is directed in other kinds of murder.

Sect. 4. Every person duly convicted of the crime of high treason, (c) shall be sentenced to undergo a confinement in the jail and penitentiary house, herein after mentioned, for a period not less than six nor more than twelve years, and shall be kept therein at hard labour or in solitude, and shall in all things be treated and dealt with as is herein after directed. Every person duly convicted of the crime of arson, (d) or as being an accessory thereto, shall be sentenced to undergo a similar confinement for a period not less than five, nor more than twelve years, under the same conditions as are herein after directed. Every person duly convicted of the crime of rape, or as being accessory thereto before the fact, shall be sentenced to undergo a similar confinement, for a period of time not less than ten years, nor more than twenty-one years, under the same conditions as are herein after directed. Every person duly convicted of the crime of murder, in the second degree, all be sentenced to undergo a similar confinement fot a period not less than five years, nor more than eighteen years, under the same conditions as are herein after directed.

(a) The punishment of death has since been extended to high treason, by act of 1802 (see 2 Rev. Code, p. 16, sect. 5. post, ch. 6.) to house burning in a town, by act of 1804 (Ibid. p. 80, sect. 7. post. ch. 10.) and to arson, by the last mentioned act. Ibid, sect. 8.

(b) Murder in the first and second degrees further defined, by act of 1802. See 2 Rev. Code, ch. 16, p. 15, sect. 1. post. ch. 6.

(c) High treason is now punishable with death. See note (a) to sect. 1.

(d) Arson, by act of 1805 (2 Rev. Code, ch. 41, sect. 1, p. 70. post. ch. 9.) was declared to be punishable by confinement in the penitentiary for a term not less than ten, nor more than twenty-one years; but it is now punishable with death. See note (a) to sect. 1.

Sect. 5. Every person convicted of robbery (e) or burglary (e) or as accessory thereto before the fact, shall restore the thing robbed or taken, to the owner or owners thereof, or shall pay to him, her or them, the full value thereof, and be sentenced to undergo a similar confinement, for a period not less than three, nor more than ten years, under the same conditions as are herein after directed.

Sect. 6. Every person convicted of horse stealing (e) or as accessory thereto before the fact, shall restore the horse, mare, or gelding stolen, to the owner or owners thereof, or shall pay to him, her, or them, the full value thereof, and also undergo a similar confinement, for a period not less than two nor more than seven years, under the same conditions as are herein after directed. Every person convicted of simple larceny to the value of four dollars and upwards, or as accessory thereto before the fact, shall restore the goods or chattels so stolen to the right owner or owners thereof, or shall pay to him, her or them, the full value thereof, or so much thereof as shall not be restored; and moreover, shall undergo a similar confinement, for a period not less than one, nor more than three years, under the same conditions as are herein after directed.

Sect. 7. If any person shall feloniously take, steal, and carry away, any goods or chattels under the value of four dollars, the same order and course of trial shall be had and observed as for other simple larcenies, and he, she, or they, being thereof legally convicted, shall be deemed guilty of petty larceny (f) and shall restore the goods and chattels so stolen, or pay the full value thereof to the owner or owners thereof, and be further sentenced to undergo a similar confinement, for a period not less than six months, nor more than one year, under the same conditions as are herein after expressed.

Sect. 8. Robbery or larceny* of obligations or bonds, bills obligatory, bills of exchange, promissory notes for the payment of money, lottery tickets, paper bills of credit, certificates granted by or under the authority of this commonwealth, or of the United States, or any of them, shall be punished in the same manner as robbery or larceny of goods and chattels.

Sect. 9. Every person who shall be convicted of having falsely forged and counterfeited any gold or silver coin, which now is, or hereafter shall be passing or in circulation within this state, or of hav ing falsely uttered, paid, or tendered in payment, any such counterfeit and forged coin, knowing the same to be forged and counterfeit, or having aided, abetted, or commanded the perpetration of either of the said crimes, or shall be concerned in printing, signing, or passing any counterfeit notes of the banks of Alexandria or the United States, (g) knowing them to be such, or altering any genuine notes of either

(e) Robbery, burglary, and horse stealing, are now punishable by confinement in the penitentiary, for a term not less than five nor more than ten years. See act of 1803, 2 Rev. Code, ch. 41, sect. 1, p. 70. post. ch. 9.

(f) Persons guilty of petty larceny are now to be tried in the county courts. See act of 1803 (2 Rev. Code, ch. 41, sect. 4, p. 70. post, ch. 9.) which, as to the mode of trial, refers to act of 1802 (2 Rev. Code, ch. 21, sect. 3, 4, p. 24. post, ch. 7.) and on conviction shall be punished with stripes, not less than teri nor more then forty, or by confinement in the penitentiary for not less than eighteen months, at the discretion of the jury. 2 Rev. Code, ch. 41, sect. 4, p. 70.

As to robbery or larceny of bank or post notes, see 2 Bro. Code, eh. 91, seet. 3, p 119.

(g) As to counterfeiting notes of the bank of Virginia, see net of 1804. 2 Rev. Code, ch. 55, sect. 5, 6, p. 80. est, ch. 10.

For the offences of obtaining notes or money from the bank of Virginia, by means of a forged check or order, or of counterfeiting the scal of the bank, or of theft or robbery in bank notes, see act of 1806, 2 Rev. Code, ch. 91, p. 418. post. ch. 11.

of the said banks, shall be sentenced to undergo a confinement in the jail and penitentiary house, herein after mentioned, not less than four nor more than fifteen years, and shall be kept, treated, and dealt with in manner herein after directed, and shall alao pay such fine as the court shall adjudge, not exceeding one thousand dollars.

Sect. 10. Whosoever, on purpose and of malice aforethought, by lying in wait, shall unlawfully cut out or disable the tongue, put out an eye, slit the nose, cut off the nose, ear, or lip, or cut off or disable any limb or member of another, with intention in so doing to maim or disfigure such person, or shall voluntarily, maliciously, and of purpose, pull or put out an eye while fighting or otherwise, every such offender, his or her aiders, abettors, and counsellors, shall be sentenced to undergo a confinement in the said jail and penitentiary house, for any time not less than two nor more than ten years, and shall be kept, treated, and dealt with, in manner herein after mentioned; and shall also pay a fine, not exceeding one thousand dollars, three-fourths whereof shall be for the use of the party grieved.*

Sect. 11. Whosoever shall be convicted of any voluntary manslaughter shall be sentenced to undergo an imprisonment, at hard labour, and solitary confinement, in the said jail and penitentiary house, for any time not less than two nor more than ten years, and to give security for his or her good behaviour during life, or for any less time, according to the nature and enormity of the offence; and for the second offence shall be sentenced to undergo an imprisonment, at hard labour and solitary confinement, in the said jail and penitentiary house, for any time not less than six nor more than fourteen years.

Sect. 12. Wheresoever any person shall be charged with involuntary manslaughter, happening in consequence of an unlawful act, it shall and may be lawful for the attorney general, or other person prosecuting the pleas of the commonwealth, with the leave of the court, to wave the felony, and to proceed against and charge such person with a misdemeanor, and to give in evidence any act or acts of manslaughter; and such person or persons, on conviction, shall be fined or imprisoned, as in cases of misdemeanor; or the said attorney general, or other person prosecuting the pleas of the commonwealth, may charge both offences in the same indictment, in which case, the jury may acquit the party of one, and find him or her guilty of the other charge.

Sect. 13. All claims to dispensation from punishment, by benefit of clergy, shall be and are hereby for ever abolished; and every person convicted of any felony heretofore deemed clergyable, shall undergo an imprisonment at hard labour and solitary confinement in the said jail and peiorentiary house, for any time not less than six months, and not morean two years, and shall be treated and dealt with as is directed hereafter, except in those cases where some other specific penalty is prescribed by this act.†

Sect. 14.. Every person convicted of murder of the first degree, his or her aiders, abettors, and counsellors, shall suffer death by hanging by the neck.

See title Maiming, where all the laws on this subject are collected,

+ See title Clergy [benefit of]

Sect. 15. The jury before whom any offender may be tried shall decide upon, and in their verdict ascertain the time within the respective periods prescribed, during which such offenders shall undergo confinement in the jail and penitentiary house, herein after mentioned, according to the directions of this act.

Sect. 16. Every other felony, misdemeanor, or offence whatsoever, not provided for by this act, inay and shall be punished as heretofore. (h)

Sect. 17. The executive of this commonwealth are hereby requested, as soon as may be, to cause as much land, in or near the city of Richmond, to be purchased for the use of the commonwealth, as will be sufficient for the building of a jail and penitentiary house, which shall be constructed of brick or stone, upon such plan as will best prevent danger from fire, and sufficient to contain, with convenience, two hundred convicts at least, with a yard sufficiently capacious adjoining thereto, for the said convicts occasionally to walk about and labour in, which said yard shall be surrounded by walls of such height, as, without unnecessary exclusion of air, will be sufficient to prevent the eşcape of the prisoners.

Sect. 18. The executive are hereby also requested to cause a suitable number of cells to be constructed in the yard of the said jail, each of which cells shall be six feet in width, eight feet in length, and nine feet in height, and shall be constructed of brick or stone, upon such plan as will best prevent danger from fire, and the said cells shall be separated from the common yard, by walls of such height, as, without unnecessary exclusion of air and light, will prevent all external communication, for the purpose of confining therein the offenders who may be sentenced to solitary confinement by virtue of this act.

Sect. 19. And for the purpose of defraying the expence of purchasing such land, and of erecting such jail, cells and walls, the governor, by and with the advice of council, shall be, and is hereby authorised, from time to time, to draw from the treasury a sum, not exceeding thirty thousand dollars, to be paid out of any monies which may be in the treasury unappropriated to other purposes, and shall from time to to time cause to be laid before the General Assembly an account of the expenditure of the same.

Sect. 20. The said jail and cells shall be appropriated to the purpose of confining such males and females as shall have been convicted of the offences above enumerated, as punishable with imprisonment and labour, but the males and females are hereby required to be kept separate and apart from each other; and all the prisoners shall be subject to the visitation and superintendance of the inspectors (i) herein after appointed.

Sect. 21. Every person convicted in any district court in this state, of any crime (except murder of the first degree) herein before specified, shall, as soon as possible after conviction, be safely removed and conveyed by the sheriff of the county or sergeant of the corporation in which the crime or offence shall have been committed, and at the

(h) By act of 1799 (1 Rev. Code, p. 402. post. ch. 2.) all offences not within the benefit of clergy, and unprovided for by this act, are punishable by confinement in the penitentiary, for a term not less than one nor more than ten years.

(i) By act of 1806 (2 Rev. Code, ch. 111, p. 140. post. ch. 12.) the board of inspectors is abolished, and the powers yested in them transferred to the executive.

expence of the commonwealth, to the said jail and penitentiary house, (k) and therein be kept during the term of their confinement, in the manner and on the terms herein after mentioned. And every sheriff or sergeant, who shall neglect to remove and safely deliver at the jail aforesaid such convict, shall forfeit and pay the sum of one hundred dollars, to be recovered in any court of record, and applied, one half to the use of the county or corporation where the offence was committed, the other to such person as shall sue for the same.

Sect. 22. Every person convicted of any of the crimes aforesaid, and who shall be confined in the jail and penitentiary house aforesaid, shall be placed and kept in the solitary cells thereof, on low and coarse diet, for such part or portion of the term of his or her imprisonment, as the court in their sentence shall direct and appoint: Provided, that it be not more than one half, nor less than one twelfth part thereof; and that the inspectors (1) of the said jail shall have power to direct the inflic tion of the said solitary confinement, at such intervals, and in such manner, as they shall judge best.

Sect. 23. And whereas it is of importance that the nature of the offence, and the former conduct and character of the convicts should be known by the said inspectors (1) Be it further enacted, that whensoever any person shall be convicted of any crime, which now is capital, or a felony of death, the court, before whom such conviction is had, shall, before their adjournment to another term, make and cause to be transmitted to the said inspectors a report, or short account of the circumstances attending the crime committed by such convict, particularly such as tend to aggravate or extenuate the same, and also what character the said convict appeared on the trial to sustain, and whether he had any time before been convicted of any felony or other infamous crime; which report the said inspectors shall cause to be entered in books or registers to be provided for that purpose.

Sect. 24. If any person convicted of any crime, which now is capital, or a felony of death without benefit of clergy, shall commit any such offence a second time, and be thereof legally convicted, he or she shall be sentenced to undergo an imprisonment in the said jail and penitentiary house, at hard labour, during life, and shall be confined in the said solitary cells, at such times and in such manner as the inspectors shall direct; and if any person sentenced to hard labour and solitary confinement, by virtue of this act, shall escape, or be pardoned, and after his or her escape or pardon shall be guilty of any such offence as now is capital, or felony of death without benefit of clergy, such person shall be sentenced to undergo an imprisonment for the term of twenty-five years, and shall be confined in the solitary cells aforesaid, at the discretion of the said inspectors.

Sect. 25. If any person after this act shall, by proclamation of the governor, as herein after mentioned,* be declared in force, be convicted of any crime, committed before the said day, he or she shall be sentenced to undergo such pains and punishment, as by the laws now in force are prescribed and directed, unless such convict shall openly

(k) Further regulations concerning the conveyance of prisoners to the penitentiary, by act of 1800. (1 Rev. Code, p. 410. post. ch. 3.) The convict may be conveyed by such sheriff as the court may think proper. Ibid. sect. 5.

(1) See note (i) to sect. 20.

• See note (y) to section 45, as to the time when this att went into operation.