Henson v. Commonwealth
In Henson v. Commonwealth, 208 Va. 120, 155 S.E.2d 346 (1967), a defendant was tried on an indictment, which was thought to charge robbery, but, by oversight, only charged attempted robbery. See id. at 121, 155 S.E.2d at 346-47.
The defendant was found guilty by the trial court of robbery. See id. Prior to sentencing, the trial court realized the error and invited defense counsel to move to set aside the verdict because of the variance. See id. at 123, 155 S.E.2d at 348.
Counsel chose not to do so. See id. Instead, defense counsel did not complain of the error until the direct appeal, which requested that the case be remanded for sentencing for attempted robbery or, in the alternative, for a new trial on the indictment. See 208 Va. at 124, 155 S.E.2d at 349.
The Supreme Court affirmed the conviction and sentence for robbery, holding that they were neither void nor unconstitutional. See id. at 124, 155 S.E.2d at 349.
The Court held that such a claim must not only be raised on direct appeal, but, to be properly cognizable on direct appeal, it must be raised by objection in the trial court at the time of the ruling with the grounds for the objection stated with reasonable certainty. See 208 Va. at 125-26, 155 S.E.2d at 349-50.