Buck v. City of Danville , 213 Va. 387 ( 1972 )

FAnson, J.,

delivered the opinion of the court.

Clarence James Buck, defendant, was tried in the Municipal Court of the City of Danville on a warrant charging him with operating a motor vehicle while under the influence of alcohol in violation oí a city ordinance, and he was convicted of the lesser and included offense of impaired driving. He appealed his conviction to the Corporation Court of Danville, and upon his trial in that court was convicted, over his objection, of driving under the influence of intoxicants. We granted defendant a writ of error to the judgment.

The only issue presented on this appeal is: May one who was tried in-a court not of record on a warrant charging him with driving under the influence of alcohol, and who was convicted of the lesser included offense of impaired driving, be tried and convicted of driving under the influence of intoxicants on an appeal of his conviction to the corporation court?

Code § 16.1-132, as amended, 1960 Repl.Vol., grants to any person conmcted in a court not of record of any offense not felonious the right to an appeal from such conviction to a court of record; and Code § 16.1-136, as amended, provides that such appeal shall be heard de novo in a court of record.

The Municipal Court had exclusive original jurisdiction to try defendant on the warrant which charged operating a motor vehicle while under the influence of alcohol and under the provision of the city’s ordinance, which paralleled Code § 18.1-56.1,¹ to find defendant guilty of either driving under the influence or impaired driving, the lesser included offense. Thus defendant, in his trial in Miinicipal Court, was put in jeopardy by the charge of driving under the influence in a court of competent jurisdiction, and when the court convicted him of the lesser included offense of impaired driving he was acquitted of the driving under the influence of alcohol charge.

An appeal under Code § 16.1-132 is in effect a statutory grant of a new trial, which annuls the judgment of the inferior court as completely as if there had been no previous trial, and it is reversible error to mention such judgment of conviction in a trial of the case on appeal. Harbaugh v. Commonwealth, 209 Va. 695, 698-99, 167 S.E.2d 329, 332 (1969); Gaskill v. Commonwealth, 206 Va. 486, 490, 144 S.E.2d 293, 296 (1965). But that does not mean that when a warrant charges an accused with an offense of several grades, and on his trial in a court not of record he is acquitted of the greater offense and convicted of the lesser included offense, on appeal from that conviction he is placed in the same position as to the offense of which he was acquitted as if no trial had been had.

In Peak v. Commonwealth, 171 Va. 535, 541, 199 S.E. 473, 476 (1938), we said:

“It is true that a trial de novo is had upon an appeal from a conviction by a police justice. It is equally true that there cannot be a trial de novo, or otherwise for the same offense after an acquittal by a court having authority and jurisdiction to try the offense.”

To hold that defendant’s appeal of the judgment of conviction places him in the same position as to the offense of which he was acquitted as if no trial had been had would be in conflict with Article I, § 8, of the Constitution of Virginia, which reads in part as follows:

“He shall not be deprived of life or liberty, except by the law of the land or the judgment of his peers # * * nor be put twice in jeopardy for the same offense.”

See also, Strickbine v. State, 201 Ark. 1031, 1035, 148 S.W.2d 180, 182 (1941).

In Bass v. Commonwealth, 209 Va. 422, 425, 164 S.E.2d 667, 670 (1968), defendant was convicted of impaired driving in the county court under a warrant charging driving under the influence of alcohol. We held that it was proper for the defendant, on appeal to the circuit court, to be tried on the impaired driving charge.

For the reasons stated, the judgment of the court below is reversed and set aside, and the case is remanded for a new trial on the charge of impaired driving.

Reversed and remanded.

1 Code § 18.1-56.1 was repealed by Acts of 1972, Ch. 757, at 1093.