24 Gratt. 618 | Va. | 1873
delivered the opinion of the court.
The court is of opinion that by section 3 of the act of assembly, approved March 30, 1871, (Session Acts of 1870-71, p. 362,) the accused is entitled to an appeal of right, without assignment of error, from the judgment of the justice; and that upon such appeal the cause is'to be heard de novo upon the evidence. For this purpose the justice is required to recognize the witnesses to appear at said court. The accused is, by section 4, entitled to trial by a jury, to be impanelled as in like cases originating in said court; and it is the duty of the court to try the case and to pronounce judgment, as if it had originated in that court. It was error, therefore, in the County
How, then, did the case stand when it came back to the County court upon the second appeal? Just as it did before the order was made remanding it to the justice. That order, and all the intermediate proceedings, were null and void; and the prisoner was before the court by appeal, just as if they had not been taken, to be tried upon the charge of larceny laid in the warrant of arrest, in the same way as in like cases originating in that court. He was arraigned upon the charge, pleaded not guilty, tried by a jury and found guilty. A motion was made for a new trial, upon the ground that the verdict was contrary to the law and evidence; which motion was overruled by the court, and exception taken by the prisoner; but neither the evidence nor the facts are certified. Ve cannot say, therefore, that the verdict is contrary to the law and evidence.
There are also exceptions to two other rulings of the court. The first is, because the second judgment of the justice does not inflict the punishment prescribed by law; and the court overruled a motion to set it aside upon that ground, and to discharge the prisoner from custody. If the judgment was erroneous on that ground, the court had plenary jurisdiction to try the cause do novo, did so, and corrected the judgment of the justice, by rendering such judgment as was proper. It was not bound to entertain the preliminary motion. If it had done so it would have still been bound to try the cause upon its merits, and the result would have been the same. And for that reason the court was right in overruling the motion to discharge the prisoner from custody. It was the duty of the court to try him upon the evidence.
Judgment amended and affirmed.