32 Gratt. 946 | Va. | 1879
Lead Opinion
delivered the opinion of the court.
When Henry W. Hey (the plaintiff in error here) was on trial in the court below, before any evidence had been introduced, the attorney for the commonwealth asked that all of the witnesses should be sent from the court room, and no objection being made by the prisoner, this was ordered by the court, and all of the witnesses then sworn for the commonwealth, and the witnesses for the prisoner, were sent out, except Police Justice White, who, by consent of counsel on both sides, was allowed to remain. Afterwards, when evidence had been introduced tending to show that the prisoner obtained the goods mentioned in the indictment from one Augustus Byers, who had been arrested, as stated in the bill of exceptions, for the larceny of said goods, and was then in the prisoner’s box in the court room, held on a requisition from the governor of North Carolina, the attorney for the commonwealth called said Byers, and asked that he be sworn as a witness for the commonwealth, but the counsel for the prisoner objected,
In the trial of causes, both civil and criminal, it is a rule of practice devised for the discovery of truth and the •detection and exposure of falsehood, and well adapted to the ends designed, for the presiding judge, on the motion •of either party, to direct that the- witnesses shall be examined out of the hearing of each other. Such an order •upon the motion or suggestion of either party, it is said, ■is rarely withheld; but that, by the weight of authority, ithe party does not seem entitled to it as a matter of right. 1 Greenleaf Ev. § 432. To effect this object, generally, the respective parties are required to disclose the names of the witnesses intended to be examined, and then the witnesses are simply ordered to withdraw from the court room and warned not to return until called, or, as is sometimes the case, they are placed under the charge of an -officer of the court, to be by him kept out of .hearing in the jury room or some other convenient place, and brought ánto court when and as they may be severally needed for ■examination. If a witness or the officer in charge willfully disobeys or violates such order, he is liable to be ¿punished for his contempt, and at one time, according to the English practice, it was considered that the judge, in the exercise of his discretion, might even exclude the testimony of such a witness. But now, it seems to be the practice to allow the witness to be examined, subject to ■observation as to his conduct in disobeying the order. 2 Taylor on Ev. (7th ed.), §§ 1400, 1401, 1402; 3 Wharton’s Crim. Law (7th ed.) § 3009(a), note, and cases cited by these authors.
In Cobbett v. Hudson, 72 Eng. C. L. 11 (decided by queen’s bench in 1852), Lord Campbell, C. J., observed,
The rule as stated seems to have been applied to eases in which the witness had wilfully disobeyed the order of the court. Cases may arise in which a party to the suit has been guilty of such gross misconduct as to amount to a fraud upon the court and the adverse party. Suppose a case in which the court has directed an examination of the witnesses out of the hearing of each other, and has required the parties respectively to produce their witnesses before the court in order that they may be warned by the judge and ordered to withdraw, and one of the parties wilfully and fraudulently withholds the name of a witness, and purposely suffers him to remain and hear the examination of the witnesses on the other side, would he be permitted, under such circumstances, to examine that witness ? The question need not be answered, as the case here is not the case supposed. In the present case, the motion for the separation of the witnesses was made by the worthy attorney for the commonwealth. The witnesses on both sides-
The only remaining assignment of error is the overruling of the prisoner’s motion to set aside the verdict of the jury and grant him a new trial, on the ground that the verdict was contrary to the law and the evidence.
The prisoner was prosecuted under the statute (Code of 1873, ch. 188, § 19,) by which it is enacted that if any person buy or receive from another person, or aid in concealing any stolen goods or other thing, knowing the same to have been stolen, he shall be deemed guilty of larceny thereof, and may be proceeded against, although the principal offender be not convicted.
The first two ingredients of the offence were clearly proved in the present case.The harness mentioned in the indictment was stolen from the owner, Frank Coxe, at Charlotte, in the state of North Carolina, some time between the 3d and 6th day of May last, and came into the possession of the prisoner, who was a junk dealer, at his storehouse in the city of'Richmond, on the 12th or 13th of the same month. If, when he received it, he knew it had been stolen, his intent, under the circumstances, must have been a dishonest one. So that the only question is, whether, when he received the harness, he knew it was stolen property. Did he have such knowledge? Certainly, there is no direct evidence that he had; that is not pretended. If guilty knowledge was established, it must have been by the circumstances proved in the case. The enquiry, then, must be into the sufficiency of these circumstances.
The prisoner received the harness from the negro, Augustus Byers, who testified in behalf of the commonwealth, and the evidence tends strongly to show that if this witness was not the original thief, he was probably his agent in disposing of the property. The harness was sent in a box, by the Richmond and Danville railroad, to Richmond, consigned to “M. H. Hayes,” and billed as “1 box clothing.” It does not appear at what point it was put on the railroad, or who was the consignor, or that the box had any directions upon it or marks indicating its contents, nor
On the 11th or 12th of May (it must have been the latter day, as the 11th was Sunday), Byers appeared at the depot with the notice before described, paid the freight to the proper agent, and then presented the notice to A. T. Sumwalt, a clerk of the railroad company, for the delivery of the box. Sumwalt, seeing from the face of the paper that the freight had been paid, told Byers to take the notice back and get the receipt at the bottom of it signed. Byers then said the box was his, that he was H. Hayes, and asked Sumwalt to sign the receipt for him, which Sumwalt did by writing the name “H. Hayes,” Byers making his mark. The box was then delivered to him, and he took it to the storehouse of the prisoner, where it was. opened by him the next day and the harness taken out. It was distinctly proved that he then offered to sell the harness to the prisoner, representing that it belonged ■ to-his brother, living somewhere on the railroad, who had been keeping a livery stable and hacks, had broken up business, and had sent the harness to him to sell. That this representation was untrue, the whole record proves that it was wilfully false, is shown by his own testimony • for he says that the harness was sent-to Richmond from, North Carolina by one Lee. Foster, a colored man, and that all he did was for Foster. He does not say that he
It was proved by the freight agent that it was the custom of the company when goods arrived at their depot to send out such a paper or notice to the consignee or person, to whom the goods were sent; that these notices were first given to a messenger to deliver, when, if the messenger could not find the party, the notice was enclosed in an envelope addressed to the party and dropped in the postoffice;, that in this case he could not say whether the messenger delivered the notice, or who received it; that the notices, were generally sent out by a boy named Kid well; that Kidwell was out of the city, being on leave of absence. He was therefore not examined as a witness.
Again, it is singular that if the prisoner delivered this, notice to Byers he did not sign the order at the foot giving-Byers authority to receive the box. He must have known such signature to be necessary. But suppose he did receive the notice, the information conveyed by it was not inconsistent with the representation made to him by Byers, when the box was opened, that the harness it contained was the property of his brother, who lived somewhere on the railroad, and was for sale on his account: for if it is. to be borne in mind that Byers did not then, or at any-
A circumstance much relied on by the attorney-general as showing guilty knowledge on the part of the prisoner, was the sale of the harness by him at a price grossly inadequate, as alleged. It is true that Mr. Coxe, the owner of the harness, testified that he bought it in Philadelphia in June, 1878, and gave $269 for it, together with the breast chains and lines, which, it seems, were not stolen, or at least never came to the possession of the prisoner • that he had used the harness from six to nine months, and the remainder of the time he had put it away, and that he would give $250 for it at the time of the trial.
This estimate can hardly be regarded as the fair market value of the harness. The prisoner sold it at $25 to John Kelly, a junk dealer in Richmond. He had offered to sell it to various persons at thirty-five dollars, but was unable to obtain that price. Kelly says he bought it to sell again, and did not consider it a bargain at thirty-five dollars, nor any great bargain at twenty-five dollars, as such stock was likely to lay on hand a long time before a sale could be made at a profit. He asked forty dollars for it, but would have taken less; that he had offered it for sale to several persons, among others to Mr. J. C. Smith, who was ajunk dealer, as well as a dealer in ice, and bought and used a great deal of second-hand harness. Smith offered thirty dollars for it, but he would not take less than thirty-five dollars, which Smith refused to give.
We do not think, under these circumstances, that the sale of the harness by the prisoner at the price obtained raises the presumption of guilty knowledge.
But beside the circumstances, which have been noticed as the most unfavorable to the prisoner, there are others, which seem to repel the presumption of guilty knowledge.
The man Byers, from whom the prisoner received the
The circumstances adverted to, and especially this open conduct of the prisoner, do not seem to be reconcilable with the idea of guilty knowledge.
Besides, this is a case of circumstantial evidence, in which the good character of the accused deserves consideration in determining the question of guilt or innocence.
It was proved by Joseph J. White, the police justice of the city of Richmond, that he had known the prisoner since 1868; that he had always borne a good character for probity and fair dealings, very good indeed for one engaged in the hazardous busines he was engaged in; by Thomas B. White, a captain of the city police, that he had known him well for four or five years, and that he had never heard anything to cause him to doubt his honesty;
After a careful examination of this case, whether the second bill of exceptions be regarded as containing a certificate of the evidence only, or partly of facts and partly of the evidence, (for it cannot be regarded as containing a certificate only of facts, the statements of some of the witnesses as to material matters being in conflict), we are of opinion that the evidence was insufficient to warrant the verdict of the jury, and, therefore, that the judgment of the court below must be reversed, the verdict of the jury set aside, and the cause remanded for a new trial.
Concurrence Opinion
concurred in the opinion of the court on. the first point, as to the admission- of the witness; but did not concur in granting a new trial.
The judgment was as follows:
This day came as well the plaintiff' in error, by his counsel, as the attorney-general on behalf of the commonwealth, and the court, having maturely considered the. transcript of the record of the judgment aforesaid and the-arguments of counsel, is of opinion, for reasons stated in. writing and filed with the record, that the said hustings, court of the city of Richmond erred in overruling the-motion of the plaintiff in error to set aside the verdict of the jury and grant him a newtrial on the ground that thesaidi verdict was contrary to the law and the evidence; therefore, it is considered and ordered that, for the error afore
Judgment reversed.
