Opinion
37396
March 10, 1938
Present, All the Justices
1. JUSTICES OF THE PEACE — Trial Justices — Review — Improper to Inform Jury of Punishment Assessed by Trial Justice. — Upon a trial of an appeal from a trial justice, it is improper for the jury to be informed of the quantum of punishment given an accused by the trial justice, since sections 4989 and 4990 of the Code of 1936 provide that such an appeal must be tried de novo.
2. JUSTICES OF THE PEACE — Trial Justices — Review — Giving to Jury Warrant Bearing Notation of Punishment Fixed by Trial Justice — Case at Bar. — In the instant case, an appeal from a trial justice to a circuit court, the warrant, with the findings of the trial justice written thereon, was given to the jury, which fixed the same punishment as that imposed by the trial justice.
Held: That it was reversible error to give to the jury the warrant, which effectually told the jury how much punishment had been given by the trial justice.
Error to a judgment of the Circuit Court of Mecklenburg county. Hon. N. S. Turnbull, Jr., judge presiding.
Reversed.
The opinion states the case.
Hodges Dortch, for the plaintiff in error.
Abram P. Staples, Attorney-General, and Edwin H. Gibson, Assistant Attorney-General, for the Commonwealth.
Easter Green was convicted in the Circuit Court of Mecklenburg county of the illegal possession of whiskey and her punishment fixed by a jury at a fine of $50.00 and confinement in jail for ninety days.
The accused had been convicted before the trial justice of the county and her punishment, fixed by him, was the same as that later fixed by the jury.
There appeared on the back of the warrant, the following, which had been written there by the trial justice: "Plea of not guilty, $50.00 fine and costs and 90 days in jail. 5-7-37." Just before the jury retired to consider of its verdict, counsel for accused moved that the warrant showing the punishment fixed by the trial justice be withheld from them because his finding was illegal evidence which should not be disclosed to the jury. This request was refused. The warrant, with the finding of the trial justice, was given to the jury and they arrived at the identical punishment which had been meted out to her by him.
[1, 2] The court is of opinion that upon a trial of an appeal from a trial justice, it is improper for the jury to be informed of the quantum of punishment given an accused by the trial justice. Code, section 4989, as amended by Acts 1932, ch. 172, and section 4990 provide that such an appeal must be tried de novo. When the warrant with the finding of the trial justice written thereon was given to the jury in this case, it effectually told the jury how much punishment he had given the accused. For this error, we reverse the judgment of the trial court and remand the case for a new trial.
Reversed.