51 Miss. 718 | Miss. | 1875
delivered the opinion of the court.
The plaintiff in error having been convicted under § 2652 of the code, of grand larceny, brings his case to this court for review.
There was a motion to quash the indictment on two grounds : 1. Because of the omission of the term “ personal ” from the averment of the theft of the mule of William Adkins; 2. Because of uncertainty in the description of the mules, their age, color, size, sex, etc., not being given.
This motion was overruled.
On the trial there was an instruction that the possession of property recently stolen is prima facie evidence that the possessor stole it. To this the .accused objected and excepted, on the ground that the use of the term prima facie instead of presumptive was erroneous.
Two instructions asked by the accused the court declined to give,, viz:
“ 5. If the jury believe from the evidence that Abe Jones received the mule after the act of larceny was committed, and at a different time and place in a different neighborhood from that of the commission of the larceny, he will be acquitted.”
“ 6. There being no charge in his indictment of buying or receiving stolen property by defendant Abe Jones, nor of his being an accessory after the fact, though the jury may believe from the evidence that after the commission of the larceny he aided and abetted in receiving and in. disposing of it (the property), they will acquit the defendant Abe Jones.”
To the refusal to give these instructions the accused excepted.
The accused asked this instruction: “ The testimony of a party turning state evidence is ever suspicious, and should not be credited unless sustained by corroborating evidence; ” which was refused and modified so as to read thus: “ The testimony of a party turning state evidence is ever suspicious and should be viewed with care and caution.”
There was a motion for a new trial, which was overruled. Thereupon the court sentenced the accused to four years in the
The foregoing statement of the case presents all the questions raised in the record or by the errors assigned.
The motion to quash the indictment was properly overruled. On the face of the indictment the property is personal. To hold the averment bad for want of the word “ personal,” would be an unprecedented refinement upon criminal practice. Adjudications precisely in point are numerous both in this country and in England. In several of the states, bank bills are included in their criminal statutes in the term “ personal property.” Held, that an indictment describing the bills stolen as the bills of the owner, omitting the term “ personal property,” was good. So, courts of the highest authority have held other words, the equivalent of “ personal property,” sufficient, and sustained indictments using the former though the latter were employed by the statute. Chattel implies property and ownership. Property is real, personal or mixed. An indictment charging the larceny of property, the description of which shows it to be personal, is not obnoxious to the objection of uncertainty, nor that the statutory definition of the offense is not pursued. Further discussion is unnecessary. The sufficiency of the indictment in this case, as to the foregoing particular, is illustrated in numerous authorities. Code, § 2652; State v. Odum, 11 Tex., 12; Rex v. Morris, 1 Leach’s Crown Cas., 468; Turner v. State, 1 Ohio St., 422, and other cases.
In an indictment for stealing a horse, it is not necessary to state the color, age or any other particular concerning it by way of description or identity; all that may become material as matter of proof upon the trial The People v. Jackson, 8 Barb., 637; Rex v. Stroud, 6 Car. & P., 535.
The objection, that the mules are not sufficiently described is not well taken. The authorities are all the other way. 2 Archb. Cr. Pr. & Pl., 355-13, et seq.; 3 Ch. Cr. Law, 947; 2 Bish. Cr. Pr., § 633-5, et seq.; The People v. Jackson, 8 Barb., 637; Eastman v. Commonwealth, 4 Gray, 416; State v. Calvin, 2 Zab., 207;
The case at bar is quite distinguishable from Merrill v. The State, 45 Miss., 651; Lewis v. The State, 49 id., 354; Williams v. The State, 42 id., 328, referred to by counsel for the rule that indictments upon statutory offenses must pursue the precise language of the statute. It is only necessary to observe that it is the substance, not the shadow, which should inspire the administration of justice.
As to the use of the term prima facie instead of presumptive in connection with the possession of property recently stolen, while the distinction is recognized, it is, however, too nice, in this, that it could have no influence on the result. Presumptive is the term used by the text writers, but this term, prima facie and cir-circumstantial evidence are very closely allied and discussed in the same connection. Proof of guilt from the possession of stolen goods is but fixing the crime by means of circumstantial evidence. Starkie, in his work on Evidence, vol. 3, p. 1245, discusses this mode of establishing guilt as a presumption of fact arising or derived by means of common experience of mankind from the course of nature and the ordinary habits of society. Mr. Phillips, vol. 1, p. 599, defines a presumption as a probable inference' which our common sense draws from circumstances usually occurring in such cases. In Wharton’s Am. Cr. Law, § 728, this evidence is treated as a presumption, but it is referred to in § 1777 as prima facie evidence of guilt. And in § 729, prima facie is employed as the synonym of presumptive. Presumptive and prima facie are treated as synonymous in Davis v. The People, 1 Parker’s Cr. R, 447; and to the same extent, also, in Kelly v. Jackson, 6 Peters, 622; but, upon the latter case, the learned American editors of Phillips’ Evidence, state this distinction, viz.: that the jury are exclusive judges of presumptive or circumstantial proof; but that on a prima facie case, a judgment of law arises, and if not rebutted, remains sufficient. The latter distinction is also made by Wharton, 1 Am. Cr. Law, § 729, in these
This evidence is discussed by Mr. Greenleaf, vol. 1, § 33, under the appellation of “disputable presumption,” and he says: “The law defines the nature and amount of the evidence which it deems sufficient to establish a prima facie case, and to throw the burden of. proof on the other party.” This author also says: “ The presumption arising from the possession of goods recently stolen is for the jury.” Vol. 3, § 31.
The instruction in the case at bar involved is this: “ The possession of property recently stolen is prima facie evidence that the possessor stole it, and it devolves upon such possessor to show that he came honestly in possession of the same, unless the same appears in evidence in the cause."
It is quite probable that this instruction might have been more professionally drawn by following the more elegant expressions of the text writers, showing how a presumptive guilt arises by the possession of the fruits as the evidence of the crime, but it is doubtful if an instruction thus constructed would be as clearly understood by the jury as the foregoing. Prima facie is in general use and well understood by the mass of people, such as usually sit on juries, and they could not have been misled, even if there is any, the slightest error.
' If, in any case, this point could be material, it is unimportant in the case at bar, as the verdict does not rest upon this merely prima facie or presumptive evidence. But, if it rested alone upon this presumption of guilt arising from the possession of property recently stolen (see Jones v. The State, 30 Miss., 653; Unger v. The State, 42 id., 642), it was still, by all the authorities, a question for the jury. Unger v. The State, supra. In which case, the learned judge, who delivered the opinion of the court, says:
The instructions asked for the accused, and refused by the court, are objectionable on several grounds. There is no evidence on which to base them. If there was, they are seriously defective on the theory which they attempt to propound.
As to the instruction, modified by the court, there is no evidence in the record to show tbe witness a participant in the crime, or that he turned “ state’s evidence,” quoting the term as used in the instruction. But if this were so, the instruction, as modified, is strictly in accordance with the authorities. 1 Greenl. Ev., § 380.
The verdict is based upon ample proof of guilt, and the motion for a new trial was correctly overruled.
Finally, the rule declared in Edwards v. The State, 47 Miss., 584, is sought to be applied in all cases of felony. In response to this appeal, this subject has been again fully reviewed, and the practice is not found to be uniform.
From the language of Chitty (Cr. Law, vol. 1, p. 699-701), it is inferable that the accused in all grades of felony, after conviction and before sentence, is asked if he has anything to say why the judgment of the court shall not be pronounced ; but it seems to be certain, that it is required only in certain capital cases. 4 Bl. Com., ch. 28; id., ch. 29; 3 Stephen’s Com., p. 9, note (n); 4 id., ch. 23, p. 436, note (b); Rose. Cr. Ev., 208, citing the statute regulating the practice, 4 Geo. IV, ch. 48.
The adjudications are conflicting in Georgia. Grady v. The State, 11 Ga., 253; Sarah v. The State, 28 id., 576. In the former of these cases, the practice was held to be proper, on conviction upon a capital charge; but in the latter and later case it
Hand, J., in Safford v. The People, 1 Parker’s Cr. R., 474, after citing several English authorities, says: “ Most of the cases above cited were upon convictions for treason, but the principle is the same; and the reason stated in all the books is, that the prisoner may have a pardon to plead or he may move in arrest of judgment; and neither Chitty nor Blackstone make any distinction. The former says, it is indispensably necessary, even in clergyable felonies. The practice has its foundation in good
While concurring in the sentiment of Hand, J., quoted, supra, that this practice “has its foundation in good sense and common justice,” and recommend its observance in all grades of felony, we are disposed to enforce it in capital cases only.
Judgment afiirmed.
