
    *Read v. Commonwealth.
    November Term, 1873,
    Richmond.
    1. Larceny—Appeal.—When a person is tried by a justice of tbe peace for a petit larceny, and convicted, be bas an absolute right of appeal to the County court; and in that court tbe cause is to be heard de novo upon the evidence; and the accused is entitled to be tried by a jury as in like cases originating in that court.
    2. Same—Same.—In such a case it is error in tbe County court to reverse tbe judgmentof thejustice and remand tbe case to thejustice to be tried by him; and any subsequent trial of tbe case by tbe justice is null and void.
    3. Same—Same—Proceedings.—In such case tbe justice again tries and convicts tbe accused, and be again appeals to tbe County court. Tbe proceedings before thejustice on tbe second trial being null, tbe accused is in tbe County court upon the first appeal, and is to be tried by a jury as if tbe case bad originated in that court.
    4. Same—Same—Same.—Tbe accused having been tried by a jury in the County court, and found guilty and sentenced, tbe errors in tbe proceedings of tbe justice on bis second trial cannot affect tbe judgment of tbe County court.
    
      In August 1872 Washington Read was brought before J. J. Jackson, a justice of the peace for Charlotte county, upon a charge of receiving three hundred pounds of tobacco, of the value of thirty dollars, the property of G. B. Hannah. Upon the hearing of the case, the justice "sentenced the prisoner to receive thirty-nine lashes, and to be imprisoned in the county jail for three months.
    Rrom this judgment Read appealed to the County court; and that court reversed the judgment, and sent the case back to the justice who tried it, for a new trial to be had therein.
    On the 16th December 1872 Read was again tried by the same justice, who again found him guilt}' of receiving three hundred pounds of tobacco, of the value of thirty dollars, of the goods and chattels of G. B. Hannah, knowing the same to be stolen; and sentenced him to receive thirty-nine lashes. Read thereupon again appealed to the County court of Charlotte.
    The case was called in the County court on the 6th of January 1873, when the prisoner moved the court to quash the proceedings in the cause, and set aside the judgment of the justice rendered on the 16th of December 1872, on the ground that said judgment does not inflict the punishment prescribed by law, and inflicts a punishment which cannot be separately inflicted unaccompanied with imprisonment; which motion the court overruled. And the prisoner also moved the court to quash the prosecution and discharge him from custody, on the ground that the trial had before justice Jackson on the 16th of December 1872 was the second trial for the same offence. And this motion the court overruled. To both of which rulings of the court the prisoner excepted. And he then pleaded “not guilty. ’ ’
    Upon the trial the jury found the prisoner guilty of the offence charged against him, and ascertained the term of his imprisonment in the county jail to be six months. And he thereupon moved the court for a new trial; but the court overruled the motion, and rendered a judgment upon the verdict, that the prisoner be confined in “the county jail for six months, and in addition, that at the expiration of his term of imprisonment he should receive thirty-nine lashes, &c. The prisoner excepted to the refusal of the court to grant him a new trial; but neither the facts nor the evidence is inserted in the bill.
    Upon the petition of the prisoner the judge of the Circuit court of Charlotte county allowed a writ of supersedeas to the judgment. The case came on to be heard in the Circuit court on the 4th of April 1873, when the court being of opinion that the writ of supersedeas was improvidently allowed, ordered that proper process do issue against the said Washington Read to execute the judgment of this court. Read thereupon applied to this court for a writ of error and supersedeas; which was awarded.
    Wood Bouldin, Jr., for the prisoner.
    The Attorney-General, for the Commonwealth.
    
      
      Larceny — Appeal. — See monographic note on “Autrefois Acquit” appended to Page v. Com., 26 Gratt. 943; Miller v. Com., 88 Va. 680, 14 S. E. Rep. 342, citing the principal case and Brown v. Epps, 91 Va. 726, 21 S. E. Rep. 119.
    
   Anderson, J.,

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. Ror 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 *court to remand the cause to the justice of the peace, to be tried by him. The justice had no further jurisdiction of the case, and the second trial by him was a nullity.

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. We 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 de 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.

*The ground of the second exception is, that the second trial of the prisoner was illegal, he having been convicted before for the same offence by the justice. It does not appear from the previous judgment of the justice that he had been convicted of the same offence. The charge was larceny, and the first judgment of the justice convicted him only of receiving the goods of another, which constituted of itself no offence. But if it were conceded (which we do , not think is true) that the second judgment of the justice was illegal upon the ground of a previous conviction by the justice for the same offence, the accused had appealed to the County court from the first judgment of conviction, which gave the court jurisdiction, as original, to try the case upon the evidence; which had not yet been done. To set aside the second judgment on this ground of alleged illegality, or upon the better ground, that the whole proceeding was null and void, would only, in effect, remit the accused to a trial by the County court de novo, upon his appeal from the first judgment. The appeal gave the court jurisdiction, not merely to review the decision of the justice on the ground of error, but original jurisdiction to try the cause upon its merits, as if the justice had passed no judgment upon it. And there appearing to be no error in the verdict of the jury or in the judgment of the court thereon, the Circuit court, instead of expressing an opinion that the writ of supersedeas awarded to the judgment of the County court was improvidently allowed, ought to have affirmed the judgment of the County court; and the judgment of the Circuit court ought to be amended in that respect and then affirmed. Therefore it is considered by the court that the said judgment of the Circuit court be amended as aforesaid and affirmed.

*Which is ordered to be certified to the Circuit” court of Charlotte county.

Judgment amended and affirmed.  