Gravely v. Deeds, Record No. 3160.
| Decision Date | 25 November 1946 |
| Docket Number | Record No. 3160. |
| Citation | 185 Va. 662 |
| Court | Virginia Supreme Court |
| Parties | ALBERT GRAVELY v. JOHN W. B. DEEDS, TRIAL JUSTICE. |
Present, Holt, C.J., and Hudgins, Gregory, Eggleston and Buchanan, JJ.
1. APPEAL AND ERROR — Appeal from Judgment of Trial Justice — Hearing De Novo. — On appeal from the judgment of a trial justice the case is tried de novo in the circuit or corporation court. The appeal is, in effect, a statutory grant of a new trial. It not only annuls the judgment of the trial justice, but it is reversible error to permit such judgment to be introduced in evidence before the jury. The question on appeal is not whether the judgment of the justice is correct but whether the accused is guilty of the offense charged. In determining this issue the judgment of the trial justice is disregarded.
2. APPEAL AND ERROR — Appeal from Judgment of Trial Justice — Payment of Fine and Costs and Beginning of Jail Sentence as Waiver of Right to Appeal — Case at Bar. — In the instant case, a prosecution for the unlawful sale of alcoholic beverages, accused was convicted by a trial justice and was informed that if he paid his fine and costs he would not be granted an appeal. He stated that he did not intend to appeal, paid the fine and costs, and was remanded to jail to begin the service of his sentence. Within the ten-day period in which an appeal is allowed by section 4989 of the Code of 1942, his application to the trial justice for an appeal was denied. It was contended that the payment of fine and costs and the beginning of the service of the jail sentence constituted a waiver of the right to appeal.
Held: That there was no merit in the contention.
Error to a judgment of the Circuit Court of Pulaski county. Hon. John S. Draper, judge presiding.
The opinion states the case.
W. O. Leftwich, for the plaintiff in error.
Abram P. Staples, Attorney General, and Walter E. Rogers, Assistant Attorney General, for the defendant in error.
Albert Gravely was convicted on June 5, 1946, by the trial justice of Pulaski county of the unlawful sale of alcoholic beverages and sentenced to pay a fine of $100 and to be confined in jail for 12 months — 6 of the 12 months' sentence to be suspended on his execution of a bond conditioned on his not violating any provision of the Alcoholic Beverage Control statute for a period of 12 months. He was informed that if he paid his fine and costs he would not be granted an appeal. He stated that he did not intend to appeal, paid the fine and costs and was remanded to jail to begin the service of his sentence. On the 14th day of June, 1946 (within ten days from the date of conviction), his application to the trial justice for an appeal was denied. A few days thereafter he applied to the Circuit Court of Pulaski county for a writ of mandamus to compel the trial justice to grant the appeal. From the judgment denying the prayer of the accused, this writ of error was awarded.
The only question presented is whether the payment of the fine and costs and the beginning of the service of a jail sentence constitute a waiver of the right to appeal from a judgment of conviction imposed by a trial justice. The courts in other jurisdictions are divided on this question.
The decisions holding that such payment is a waiver seem to base their conclusion on the theory that the payment of the fine is a voluntary act and that the accused would derive no benefit from a reversal of the judgment. 2 Am.Jur. 987. The same courts seem to hold that the payment of a judgment or decree entered in a civil action does not constitute a waiver of a right to review upon a writ of error or an appeal unless such payment was made in a compromise settlement or the judgment debtor agreed not to pursue an appeal at the time the payment was made. 2 Am.Jur. 981. The reason advanced in support of this rule is that, if the judgment or decree was not satisfied, the judgment creditor could, and perhaps would, cause an execution to be issued and defendant's property seized to...
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