86 Va. 396 | Va. | 1889
delivered the opinion of the court.
The single question we have to determine is, whether there was error in overruling the prisoner’s motion for a new trial. And in determining this question we must be governed by the rule, so often announced by this court, that where the evidence consists of circumstances or presumptions, a new trial, on the ground that the verdict is contrary to the evidence, ought to be granted only in a ease of a plain deviation, since to do otherwise would be to assume the province oí the jury. It ought not to be granted merely because the court, if on the jury, would have given a different verdict, but the verdict must be plainly wrong to justify the court in setting it aside; and this restriction, it is needless to say, applies a fortiori to an appellate court. Read’s case, 22 Gratt., 924; Finchim’s case, 83 Va., 689.
Viewed in this light, the verdict must stand.
It is a general rule of the common law, with regard to the evidence in eases of larceny, that the possession of goods recently stolen is prima facie evidence of guilt, and throws upon the accused the burden of accounting for that possession. This rule, it is true, has never been held by this court to apply with the same effect in eases of burglary or house-breaking, and the decided -weight of authority is that it does not. Still, where goods have been obtained by means of a burglary or housebreaking, the fact of such possession is a most material circumstance to be considered by the jury, and where, in addition to such possession, other inculpatory circumstances are proved, such, for example, as the refusal of the accused to give any account, or his giving a false account, of how he came by the goods, such proof will warrant a conviction. In other words, to use the language of the books, there should be some evidence of guilty conduct, besides the bare possession of the
In Commonwealth v. McGorty, 114 Mass., 299, Avhieh was a prosecution for burglary, an instruction to the jury was approved, which was in these words :
“ Possession of stolen property immediately after it has been stolen, if an unsatisfactory account is given as to its possession, affords presumptive evidence of guilt. The presumption is not conclusive, but is to be dealt with by the jury alone as a mere inference of fact. If the larceny was effected by a breaking and entering, and immediately after the breaking and entering, the property stolen is found in the possession of persons who give improbable and unsatisfactory accounts of how they come in possession of it, the possession affords presumptive evidence of their guilt. The circumstances under which they are found in possession of the property—the time, the place, their conduct, their account of it, are all matters for the consideration of the jury.”
Applying this rule to the present case, we are of opinion that although there was not strict proof of the identity of the stolen flour, yet that in view of the nature of the article, the recency of the possession, and all the surrounding circumstances, the evidence was sufficient. At all events, it was not plainly insufficient. “ Unless the possession be recent,” says Starkie, “ it is necessary to give strict proof of the identity of the goods, which is not so requisite where the possession is very recent.” 2 Stark. Ev., 841.
And in 2 Russ, on Crimes, at p. 178, the learned author, after laying down the rule that where all that can be proved
Thus, he says, if a man be found coming out of another’s barn, and upon his being searched, corn be found upon him, of the same kind as that in the barn, the evidence of guilt will be pregnant; and cases have frequently occurred where persons employed in carrying sugar and other articles from ships and wharves have, been convicted of larceny, upon evidence that they were detected with property of the same kind upon them, recently upon coming from such places, although the identity of the property, as belonging to such and such persons, could no otherwise be proved. See, also, 2 East, P. C., 657.
Another writer of acknowledged authority, in treating of the same subject, uses this language: “ It is not necessary that the identity of stolen property should be invariably established by positive evidence. In many such cases identification is impracticable, and-yet the circumstances may render it impossible to doubt the identity of the property, or to account for the possession of it by the accused upon any reasonable hypothesis consistent with his innocence.” Wills, Circum. Ev., 1-30.
This principle, without any undue extension, we think, may be properly applied to the present case; for, obviously, what is sufficient evidence of identity of stolen goods is, like what is recent possession, a question to be determined upon the circumstances of each particular case. 3 Greenl. Ev., sec. 32; Steph. Big., C. L., Art. 308. If the mere finding of an article
We think, therefore, that the evidence of the identity of a part, at least, of the stolen property in the present case is sufficient. And the presumption arising from the prisoner’s recent possession of that part is strengthened by the attendant circumstances; that is to say, his false account of how he came by the flour; the probability that he was present when the felony was committed; and his conduct afterwards, when the search for the stolen property was being made; all these are circumstances, accompanying the recent possession of the fruits of the crime, from which the jury were warranted in drawing the conclusion that he not only stole the flour, but that he made use of the means by which access to it was obtained.
The evidence, moreover, of his principal witness at the trial, which was contradictory of his own previous account of the way in which the flour came into his possession, was of itself sufficient to create a presumption against him. The statement of the witness that thirty or forty pounds of good flour were tendered in return for the use of the prisoner’s boots for a
The judgment is affirmed.
Judgment aeeirmed.
