104 S.E. 533 | N.C. | 1920
The defendant was charged, in a criminal proceeding before a justice of the peace, with unlawful trespass upon land; that is, entering thereon after having been forbidden to do so. Upon conviction, he appealed to the Superior Court, where the case seems to have taken a peculiar course. There was negotiation between the parties *696 for a settlement of the controversy, but they could not agree as to the final terms, defendant refusing to pay the costs. The court affirmed the judgment of the justice as to the costs against the consent of defendant, and without allowing him a jury trial, and he thereupon appealed to this Court.
When an appeal is taken in a criminal action before a justice, of which he has jurisdiction, the trial in the upper court is de novo. S. v. Koonce,
The judgment in the Superior Court was no doubt entered by the judge in a laudable attempt to settle a small matter, which was really cumbering the docket and delaying the court. Section 11 of Article I of the Constitution, so far as material, provides: "In all criminal prosecution, every man has the right not to be compelled to pay costs, jail fees, or necessary witness fees of the defense, unless found guilty." See S. v. Cannady,
Article I, section 13, of the Constitution says: "With right of appeal." And this Court has held in the case of S. v. Brittain,
It makes no difference what the real issue is, so that the charge involves the commission of a crime for which he can be punished and made to pay the costs.
For refusing to allow the defendant a hearing by a jury, his Honor erred, and the defendant is entitled to a new trial.
The judgment will be set aside, and a new trial by jury ordered.
New trial. *697