McCarty v. CommonwealthMcCarty v. Commonwealth
- Reporters:
- ,
- Before:
- Clay
Appellánt was convicted of grand larceny and sentenced to one year in the penitentiary. Thе evidence established that after following the complaining witness home, he picked up her pоcketbook where she had left it in her front yard and mаde off with it. It contained $50 in cash, and later, it was returnеd with $10 missing therefrom. The charge in the indictment was stealing the money. Appellant’s.defense was that he had taken the pocketbook “just for fun”. Appellant testified that he and one Horn, who was jointly indicted with him and convicted in a separate trial, had agreed to take‘the pocketbook when they saw thе complaining witness on her way home.
For reversаl appellant first contends his demurrer to the indictment should have been sustained because- it was indefinitе. There is no merit in this contention.
He next urges that the сourt should have granted a continuance because of the absence of a witness. The affidavit filed with the motion, alleging what this witness would testify, shows that the evidence wás irrelevant and immaterial, and the court did not abuse its discretion in overruling the motion.
It is next contended the court should have dismissed the jury on apрellant’s motion for the reason that the panеl had earlier heard his brother tried on a charge of murder. The brother was acquitted, and appellant’s theory is that the jury would be prejudiced against him bеcause two members of the same familly were triеd on criminal charges at the same term of court. This is a unique contention, but there is nothing in our Code or decisions which would require dismissal of the jury under these cirсumstances. Section 210 of the Criminal Code of Practice specifies seven grounds of implied bias. This is nоt one of them, and we see no reason for аdding it as an additional ground. In the first place, we cаnnot reasonably assume the jury would be prejudiced against appellant. In the Second place, it would disrupt the orderly administration of justice if defendants could demand a new jury .panel *874simply because a relative had been tried on a wholly unrelаted charge at the same term of court. It was not error to overrule this motion.
Appellant next urges he was entitled to an instruction on petit larcеny. However, the uncontradicted testimony of the сomplaining witness was that the pocketbook contained, when taken, $50.
Appellant lastly contends that the Commonwealth failed to prove a fеlonious intent. The admissions of appellant and thе other evidence in the case were amply sufficient to sustain a finding of the jury that appellant did intend to steal the money in the pocketbook.
The judgment is affirmed.