132 Va. 746 | Va. | 1922
after making the foregoing statement, delivered the following opinion of the court.
“The court erred in failing and refusing to sustain objections to the admissibility of the evidence as shown by the exceptions in the record noted.”
There is no bill of exceptions or certificate of the judge in the record pointing out the rulings complained of in the assignment of error just referred to. The exceptions men
Therefore, the assignment of error just mentioned will not be considered.
The questions raised by the other assignments of error will be disposed of in their order as stated below.
1. Is the indictment sufficiently specific in its description of the property alleged to have been stolen?
This question must be answered in the affirmative.
This question must be answered in the negative.
The only portion of this instruction which is claimed to have been erroneous is italicized in the copy of it appearing above. The material portion of the instruction reads as follows:
“If you believe from the evidence beyond a reasonable doubt * * * that the defendants, or either of them, broke and entered the railroad car with intent to commit larceny therein, you should find them guilty, as charged in the indictment * *
It is obvious that if this language were to be understood as meaning literally and in the abstract what it says, the instruction would be erroneous. • But every instruction must be construed in the light of the evidence which has been introduced before the jury. In the case in judgment, the circumstance that both of the accused were seen together and were shown by the evidence to have acted in concert in the occurrences which most incriminated them, prom
This question must be answered in the negative.
It will be observed that it was not asked that the jury be told by this instruction that the mere evidence of the possession referred to was not of itself sufficient to establish the guilt of the accused of the crime of the car breaking. The instruction as asked would have told the jury, in substance, that the possession referred to was not a circumstance which they could consider at all as evidence of the guilt of the accused of the crime of the car breaking. Such an instruction, according to all of the authorities, would have been erroneous. 2 Bish. Cr. Proc. (4th ed.), sections 152, 739-747, and the authorities cited in the notes to these sections; Henderson’s Case, 98 Va. 800, 34 S. E. 881; Gravely’s Case, 86 Va. 396, 10 S. E. 431; Hall’s Case, 3 Gratt. (44 Va.) 593; Wright’s Case, 82 Va. 183; Branch’s Case, 100 Va. 837, 41 S. E. 862; Tyler’s Case, 120 Va. 868, 91 S. E. 171; Stallard’s Case, 130 Va. 769, 107 S. E. 722; Elmoe’s Case, ante, p. 529, 110 S. E. 257; State v. Brady, 121 Iowa 561, 97 N. W. 62, 12 L. R. A. (N. S.) 199, and note thereto, and authorities therein cited.
The indictment containing but one count, and the verdict, being a general one, was a verdict finding the accused guilty of the major offense of car breaking, charged in the indictment. Speers’ Case, supra (17 Gratt. [58 Va.] 574); Butler’s Case, supra (81 Va. 162).
The position is taken for the accused that, even if the evidence with respect to the possession of the stolen goods could have been properly considered by the jury, “there is not a syllable of evidence in the record to connect, (the accused) with the robbery of (the) car * * * and while the possession of recently stolen articles raises the presumption of a larceny of the articles, it has never been held that the possession of the stolen property, unaccompanied with any guilty conduct, could raise the presumption of house breaking.” Citing Henderson’s Case, Gravely’s Case and Branch’s Case, supra.
In Wright’s Case, supra (82 Va., a,t p. 188), indeed, this is said: “Though the mere possession of the stolen property might not be prima facie evidence of the burglary or house breaking charged, yet, in connection with other evidence of such burglary or house breaking, evidence of such possession of stolen goods is admissible, and upon proof of a larceny having been committed, and of the goods stolen having been found shortly afterwards in possession of the prisoner, the general rule will attach that * * * it is incumbent upon the prisoner to prove how he came by the property, otherwise the presumption is that he came by it feloniously. Russell on Crimes, Ed. 1887, p. 123; Davis’ Crim. Law, p. 193; 3 Greenleaf Ev., sec. 31; 3 Rob. Prac., old, p. 224.” This is a statement of the rule under consideration, as applicable to burglary and cases of that character, almost, if not precisely, in the very form in which the oldest authorities lay it down as applicable to oases of larceny. In Branch’s Case, supra (100 Va., at pp. 839-840, 41 S. E. 862), the modern doctrine on the subject, applicable alike to the former class of cases just mentioned and to larceny cases, is approved as in force in Virginia, by citing the
And in Stallard’s Case, supra, this is said: “The jury might have convicted of larceny only, upon the evidence of recent unexplained and exclusive possession of stolen goods, but when to the evidence of such possession was added the evidence that the goods were initially acquired by entry of Sivert’s barn in the nighttime, and a false account of how defendant came'by the goods, the jury were justified in convicting the prisoner of the higher offense.”
There can, indeed, be little doubt but that, in the particular under consideration, as in others, there has been a development and improvement in the condition of the law in modern times. Not that the law" itself has changed, but the statement of it has changed. As said in 2 Bish. New Cr. Proc., sec. 740 (3) : “* * * the doctrine in some of our States is not now the same as in earlier years.” - (Referring to numerous cases in thirty of the American States and in England.) “It will be comforting to the well-wishers of oür jurisprudence, who examine these cases, and who remember the condition of the law on this subject fifty years ago, to note that very little now remains in our
It would take us too far afield to here pursue the inquiry as to what is the precise rule, stated as aforesaid as applicable in larceny cases, to which reference is made in some of the cases of burglary and house breaking in Virginia. It is sufficient here to say that the rule, as stated in the last-named cases as applicable to burglary and the like character of cases, is, in substance, the same as laid down in the quotation we have made above from Gravely’s Case.
5. Does proof that the initial wrongful possession of the goods in question was obtained by means of the felonious breaking and entering, coupled with the further proof (a) of actual false swearing by the accused on the subject ojj the possession of the stolen goods (such as,- for example, on voluntarily taking the stand as a witness, his testifying that he never had any possession of any of the stolen goods, when there is ample evidence for the Commonwealth to the contrary), or (b) of his giving a false account of the possession of the stolen goods; or (c) that the offenses of the breaking and entering and of the larceny were committed at the same time and by the same person or persons, and the circumstance that the accused, although testifying as a witness in the ease, does not claim that he obtained the possession of the goods from any one or in any other way than by means of the felonious breaking and entering—furnish sufficient evidence of the “other inculpatory circumstances,” or other “guilty conduct, besides the bare possession of the stolen property,” which, according to the authorities, will support a verdict of the jury finding the accused guilty of the crime of the breaking and entering with the intent to commit larceny?
We are of opinion that in any one of the three situations
It should be said that in all of the Virginia cases which have been referred to. in argument, and which have been cited above, in which convictions of burglary or housebreaking have been sustained, there were some circumstances in evidence, such as tracks supposed to be those of the accused, or possession of tools supposed to> have been used in the breaking, or other like circumstances, to connect the accused with the breaking and entering; and in none of these oases did the conviction rest upon such situations as (a), (b). or (c), aforesaid,.alone;, but the court did not base its decisions, in these cases upon the existence of .such special circumstances; and, in reason and upon just principles, which are elaborated in the authorities above cited and need not be further set forth here, in such situations the possession of the stolen property cannot be said to be unaccompanied by evidence of guilty conduct, and the guilty conduct, which the evidence tends to prove, is, in such situations, so inextricably linked up and connected .with the felonious breaking and entering that it has convincing probative value as tending to establish the guilt of the accused of that offense; and, where a verdict of guilt of such offense is returned by the jury, must be considered as evidence supporting the verdict in its finding connecting the accused with such offense.
This question must be answered. in. the negative.
As said in 2 Bish. New Cr. Proc. (4th ed.), secs. 720, 721:
“2. Where there is both a general and special owner, the rule is nearly universal that the pleader may charge the goods as belonging to either, though often the convenience of making, proof will suggest practical grounds for choice. For example—
“3. Goods stolen from a common carrier—may be laid •as his or as the general owner’s. More fully—
“Sec. 721. 1. Special ownership.—The rule is general * * * that where chattels are taken feloniously from .any bailee or other special owner * * * the ownership may be laid either in such possessor or the real owner, at the election of the pleader.”
There is but one remaining question presented for our decision by the assignments of error, and that is this:
We have a statute (section 6003 of the Code) which expressly forbids such an instruction being given in civil cases. As held in Montgomery’s Case, 98 Va. 852, at page 856, 37 S. E. 1, it is not the practice in the courts of this State to give such an instruction in criminal cases. And, besides, since the Commonwealth has no appeal in' criminal cases such as that in judgment and, hence, has no means of correcting the error if such an instruction is erroneously given in such cases, it is manifest that the inauguration of the practice of giving such instructions as that in question cannot be approved by the courts, although not forbidden by statute.
The case will be affirmed.
Affirmed.