
    JOHN BUIE, IN ERROR, v. STATE.
    Knoxville,
    September Term, 1877.
    PRACTICE. CRIMINAL LAW. No testimony in .ag-gravation after verdict.
    It is error in the court, after the verdict is returned and a motion for a new trial is overruled, to call a witness and examine -him to. find matter of aggravation to fix the amount of punishment to be imposed on a defendant in a misdemeanor case, and the supreme court will fix the proper pnnishment in accordance with the proof npon which the verdict was rightly found.
   Eeeemam, J.,

delivered the opinion of the court:

The verdict of the jury that defendant was guilty of open and notorious lewdness, is sustained by tba proof, and should stand. It was error in the court, however, after the motion for new trial was overruled, to call a witness and examine him as to how defendant lived with his wife, and to allow it to be shown that he-lived disagreeably with her, and on one occasion slapped her, because she accused him of visiting the woman with whom he is charged to have been living in adultery.

This was done in order to fix the amount of his punishment, we presume, and influenced the judgment of the court in fixing it. It was the duty of the court to fix the punishment for the offense, as shown by the testimony, and found by the jury — not upon additional testimony of another offense, or other ill conduct toward a third party.

The verdict of the jury being correct, however, must stand, and the party be punished according to the extent of his offense. It is difficult, or even impossible, for us to say how- much this improper testimony influenced the judge below in the amount of punishment inflicted, to wit: a fine of one dollar, and three months of hard labor in the workhouse.

We render what we deem probably a more correct judgment, by fixing four weeks in workhouse, and the fine of one dollar.  