by kate.gardiner

CLEM KINCAID v. COMMONWEALTH OF VIRGINIA
Supreme Court of Virginia
December 1, 1958

The defendant, Kincaid was convicted in the circuit court on April 23, 1957, of reckless driving. Later he was again, charged with reckless driving. He was tried and convicted of this latter charge on November 6, 1957, and the judgment entered on that conviction is the subject of this appeal. During the course of the trial the Commonwealth introduced evidence of the previous conviction (April 23, 1957), which evidence was admitted over the objection of the accused wherein he asserted that the evidence was inadmissible as the warrant on which he was being tried did not charge a second offense. In instructing the jury, over the objection of the accused, the court set forth the penalties for a second offense of reckless driving, and the jury imposed a fine as permitted under the instruction and as provided in the statute (Code, § 46-210 as amended; now § 46.1-192, 1958 Cum. Supp.) for a second offense. The accused moved to set aside the verdict as contrary to the law and without evidence to support it, and further urged the court to grant him a new trial on the ground that the court erred in permitting the introduction of evidence relating to the previous conviction. These motions were overruled and judgment was entered on the jury’s verdict. The defendant sought review of the decision.

Issues:

Whether the trial court erred in admitting evidence relating to the previous conviciction?
Whether a defendant in a criminal case can be taxed with the costs of a jury without invading his constitutional right to trial by jury?”

Discussion:

This court held that it was error for the court to admit the evidence relating to the prior conviction and to instruct the jury regarding the punishment for a second offense. In this case the warrant simply charged that the accused did unlawfully operate a motor vehicle on the public road in a reckless manner and did not charge him for a second offense. Thus he should have been put on trial for the offense as charged and no other this court held that under the evidence, the issues involving the identity of the accused and whether or not he was guilty of reckless driving were for the determination of the jury

This court held there is no merit in the contention that the taxing of the costs of the jury is an invasion of the constitutional right of the accused to a trial by juryCode, § 19-296 imposes upon the clerk of the court the duty to make up a “statement of all the expenses incident to the prosecution” and issue an execution therefore. The costs of a jury are an expense incident to the prosecution, and its collection violates no constitutional right of the accused.

Conclusion:

The court reversed the judgment of the trial court, which convicted the defendant of reckless driving and overruled his motions to set aside the verdict and for a new trial. The court remanded the case for a new trial.

Disclaimer:

These summaries are provided by the SRIS Law Group.  They represent the firm’s unofficial views of the Justices’ opinions.  The original opinions should be consulted for their authoritative content

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