State v. . Stewart

Asi-ib, J. It is a fundamental principle of the common law, declared in “ Magna Ctharta” and again in our Bill of Rights, that “no person shall be convicted of any crime but by the unanimous verdict of a jury of good and lawful men in open court.” Art. I, §13. The only exception to this is, where the legislature may provide other means of trial for petty misdemeanors with the the right of appeal — Proviso in same section. This is not one of the petty misdemeanors embraced in the proviso; and if it was, no such means of trial as that adopted in this case has been provided by the legislature. The court here has undertaken to serve in the double capacity of judge and jury, and try the defendant without a jury, which it had no authority to do, even with the consent of the prisoner. 1 Bish. Cr. Law, §759. The action of the court in this respect was in violation of the constitution, and in subversion of a fundamental principle of the common law. State v. Moss, 2 Jones, 66. There is error. The case must be remanded to the superior *565 court of Stokes county, that it may be proceeded with by a jury trial according to the regular practice of the court. Error. Reversed and remanded.