| Va. | Jun 20, 1895
delivered the opinion of the court.
The first assignment of error in this case is, that the court failed to charge the grand jury after they were sworn in and before they were sent to their room, as is pi ovided by section 3982 of the Code.
The record shows that the grand jury weie sworn, and were sent to their room, and afterwards brought in the indictment upon which the plaintiff in error was tried and convicted. There is no pretense that the grand jury was not properly organized, or that the indictment is not good, but the contention is that the failure of the record to show that the grand jury were charged by the court as to their duties vitiates the whole proceeding. The failure of the court to charge the grand jury, as provided by the statute, did not cause any advantage to be lost, right destroyed, or benefit sacrificed, to which the accused was entitled! Where no piejudice can result from the failure of the officers of the law to comply strictly with the provision of the statute, such provision is usually held tobe directory. Cooley’s Cons. Lim., p. 88, etc. Section 3984 of the Code provides that the names of the witness upon whose evidence the grand jury make their indictment shall be written at the foot of the indictment or presentment. Section 3991 provides that in misdemeanors
Another assignment of error is that the charge given to the jury which tried the accused was improper, because partly given by the clerk, partly by the court and partly by the Commonwealth’s attorney. The proceeding complained of was irregular and contrary to the usual practice. The court should see that its clerk, under its direction, informs the jury plainly what offenses are charged and embraced in the indictment, and the punishment that may be inflicted for each offense. "While the charge complained of was contrary to the usual practice, the jury were fully informed-as to their duties, and no prejudice resulted to the accused from such irregularity. This assignment of error must be overruled.
The refusal of the court to give instruction Ho. 1 asked for by the accused is assigned as error. The instruction asked for is as follows:
“The court instructs the jury that, unless they believe from the evidence that the portion of the knife blade found in the storeroom has been identified beyond all reasonable doubt as the same blade which was in the possession of the prisoner previous to the offense, they cannot consider it or treat it as a circumstance against the accused.”
The accused was indicted for feloniously entering a bar-room with intent to commit grand larceny, and with the commission of that offense. The evidence introduced by the Commonwealth is wholly circumstantial. One of the circum
It is elementary that the guilt of the accused must be shown beyond a reasonable doubt, whether the evidence relied upon be direct or circumstantial.
In order to warrant a conviction for crime on circumstantial evidence every essential fact or circumstance upon which conviction depends must be proved by competent evidence beyond a reasonable doubt. Chief Justice Shaw, in Webster’s Case, laid down the rule on the subject as follows: “The several circumstances upon which the conclusion depends must be fully established by proof. They are facts from which the main fact is to be inferred, and they are to be proved by competent evidence, and by the same weight and force of evidence as if each were itself the main act.” 5 Cush. 295; 52 Amer. Dec. 711. Starkie, in his work on Evidence, page 856 (9 Am. Ed.), says: “The party upon whom the burden of proof rests is bound to prove every single circumstance which is essential to the conclusion, in the same manner and to the same extent as if the whole issue had rested upon the proof of each individual and essential circumstance. 3 Dice on Ev., sec. 316. This rule must, from the very nature of the case, be correct. For how is it possible to reach a conclusion that the main fact is true beyond a reasonable doubt, when the material and essential facts from which it is to be inferred are not shown to be true with, a like degree of certainty ? The evidence introduced by the Commonwealth as to the knife
The court gave two instructions to the jury on motion of the Commonwealth, to which the accused objected. The first was as follows: ‘‘The court instructs the jury that the exclusive possession of money recently stolen, unaccompanied by a reasonable account of how the possession was acquired, creates a presumption that the possessor is the thief; but such possession is not prima faeie evidence of housebreaking.”
It is well settled in this State, that if property be stolen, and recently thereafter be found in' the exclusive possession of the accused, such possession of itself affords sufficient ground for a presumption of fact that he was the thief, and in
By the other instruction, to which the accused objected, the jury were informed that whilst the possession of stolen goods was not f rima facie evidence of the housebreaking charged in the indictment, it was a circumstance which they might consider in connection with other facts in determining whether he was guilty of that offense. This instruction was not to the prejudice of the accused, and is fully sustained by the decisions of this court in the case of Walker v. Commonwealth, 28 Gratt. 969" court="Va." date_filed="1877-08-09" href="https://app.midpage.ai/document/walker-v-commonwealth-6806386?utm_source=webapp" opinion_id="6806386">28 Gratt. 969; and Granby v. Commonwealth, 86 Va. 393.
The jury brought in their verdict in the following words: “Ye, the jury,.find the defendant, A. F. Porterfield, guilty of grand larceny, as charged in the indictment, and fix his punishment at confinement in the Stale penitentiary for the period of two years and six months.” This verdict was amended by the Commonwealth’s attorney so as to read as follows: “Ye, the jury, find the defendant, A. F. Porter-field, guilty as charged in the within indictment, and fix his punishment at confinement in the State penitentiary for the period of two years and six-months,” and, as amended and assented to by each member of the jury, was received by the court over the objection of the accused.
The practice of allowing the verdict of a jury to be put in form in open court is a proper, and in many cases, a necessary practice; but the amendment made in this verdict was not as to a matter of form, but of substance. By the verdict returned by the jury the accused was acquitted of feloniously entering the bar-room, and found guilty of grand larceny. By the amended verdict he is found guilty, as charged in the
Other errors are assigned, but they are not of sufficient im- . portance to require special notice.
The judgment of the Corporation Court of the city of Rad-ford must be reversed, the verdict set aside, and a new trial awarded, to be had in accordance with the views expressed in this opinion.
Reversed.