23 W. Va. 773 | W. Va. | 1883
The solemnity required bylaw in making a criminal accusation is thus stated by the court in The Commonwealth v. Cawood, 2 Va. Cas. 541: “The bill of indictment is sent or delivered to the grand jury, who alter hearing all the evidence adduced by the commonwealth decide whether it be a true bill or not. If they find it so, the foreman of the grand jury eudorses on it ‘atrae bill’ and signs his name as foreman; and then the bill is brought into court by the whole grand jury, and in open court it. is publicly delivered to the clerk, who records the fact. Tt is necessary that it should be presented publicly by the grand jury; that is the evidence required by law to prove that it is sanctioned by the accusing body, and until it is so presented by the grand jury with the endorsement aforesaid, the party charged by it is not indicted, nor is he required or bound to answer to any charge against him, which is not so presented.” There is no question but that this correctly describes the regular and proper mode of proceeding in the institution and presentation of criminal charges both ■ in England and in this State. It is true that in a case in Virginia decided in 1872 and therefore not binding as authority upon us it was held, that while this was the regular and proper mode of proceeding, yet it was not absolutely necessary that the indictment should be endorsed by the grand jury “a true bill,” or that this endorsement, if made, should be signed by the foreman of the grand jury. And in Burgess v. The Commonwealth, Va. Cas., Dade J., who delivered .the opinion, expressed views which countenance this decision rendered in 1872 in Price’s Case, 21 Graft. 858.
This case proceeds on the idea that the principal use of requiring the grand jury to endorse on the indictment “a true bill” and the foreman of the grand jury to sign this
I am not now prepared to say, that in this State the endorsing on an indictment the words “a true bill,” and the signing of such endorsement by the foreman of the grand jury, would under any circumstances be dispensed with. There is no decision binding on us, in which it has been so held. And certainly this long established and useful practice ought to be followed as the recognized and proper mode of avoiding difficulties, even if it were held not to bo absolutely necessary. As I understand the decisions, if to this endorsement on the indictment of the words “a true bill” there is added, as is frequently done, a brief description of the contents of the indictment, such addition to these words “a true bill” though signed by the foreman of the grand jury would constitute no part of their charge or action but would be considered as mere surplusage; andas such additions to these words “a true bill” can serve no useful purpose, they ought not to be made. If however such additions are made they will be regarded as surplusage; and if, therefore, they are incorrect or even inconsistent with the indictment, they will not vitiate it, as they will be regarded as no part of the finding of the grand jury. See Thomj>son’s Case, 20 Graft. 729, 730.
While it is absolutely necessary that an entry should be made on the record-book of the finding by a grand jury of an indictment, it being held to be just as essential as the
Applying this law to this case there is obviously nothing-in the first or fifth assignments of error made by the plaintiff in error in his petition. The indictment had entered upon it “a true bill” with the signature of the foreman of the grand jury. It is true, there were added to this endorsement the words “indictment for grand larceny.” This addition was unnecessary but certainty was not objectionable, as it was a correct description of the offence. "But even had there been instead of this correct description an incorrect description of the offence, it would have been a matter of no importance, as this description of the offence is not part of the finding or action of the grand jury but must he regarded as mere surplusage. The entry on the record-
The third assignment is equally without foundation. The instruction complained of lays down the law almost in the words of chapter 158 § 7 of our Code (see Code p. 714), and this provision of our statute-law is in the following words: “ In a prosecution for stealing it shall be sufficient to prove that when the offence was committed the actual or constructive possession, or a general or special property, in the whole or any part of the personal estate stolen was in the person alleged in the indictment to be the owner thereof.” Russell in his work on Crimes, volume 2 page 288, thus lays down the common-law: “ There is no doubt that there may be a sufficient ownership of the goods stolen in a person who has only a special property in them; and that they may be laid as the goods and chattels of such person in the indictment. A lessee for years, a bailee, a pawnee, a carrier and the like have such special property; and the indictment will be good, if it lay the property of the goods either in the real owners, or in the person having only such special property in them. See 2 East. P. C. ch. 16 § 90 p. 653.” On this law it is obvious that the court did not err in refusing the instruction asked by the prisoner; and therefore there is nothing in the plaintiff’s second assignment of error.
It only remains to enquire whether there is foundation for the fourth assignment of error, that is, whether the circuit court erred in the following instruction given at the instance of the State:
*782 “The jury is instructed that if property be stolen and recently thereafter be found in the exclusive possession of the prisoner, then such possession of itself affords sufficient grounds for presumption of fact that he was the thief, and in order to repel the presumption makes it incumbent on him on being called on for the purpose to account for such possession consistently with his innocence. If he give a reasonable account of it, then it devolves upon the State to prove that such account is untrue. If he give an unreasonable aecouiit of it, then it devolves upon the prisoner to sustain such account by evidence.”
Before determining whether this instruction should have been given it is important for us to have a clear conception of what is meant by a presumption and by different characters of presumption as recognized in our law. Starkie in his work on Evidence has stated this perhaps as distinctly, as it will be found anywhere else. In the tenth edition p. 742 a 'presumption is thus defined: “A presumption may be defined to be an inference as to the existence of one fact from the existence of some other fact, founded upon a previous experience of their connection. * * * * The inference may be certain or not certain but merely probable and therefore capable of being rebutted by proof to the contrary. Presumptions thus defined are either legal and artificial or natural. They are artificial or presumptions of laxo whenever they derive from the law any technical or artificial operation and effect beyond their mere natural tendency to produce belief, and operate uniformly without applying the process of reasoning on which they are founded to the circumstances of the particular case. They are on the other hand natural when they act merely by virtue of their own natural efficacy. For instance whenever a particular presumption arises from the lapse of a defined space of time it is always in its nature artificial. Thus at the expiration of twenty years, without payment of interest on a bond, or other acknowledgment of its existence satisfaction was to be presumed; but if a single day less than twenty years had elapsed the presumption of satisfaction from mere lapse of time did not arise. This is obviously an artificial and arbitrary distinction. No man’s mind is so constituted that the mere lapse of the single day which completes
These artificial presumptions here defined arc generally spoken of in the law-books as presumptions of laxo; andón the other hand the natural presumptions here spoken oí are usually spoken of in the law-books as presumptions of fact. Presumptions of law may be divided into two distinct classes. One is called by Starkie a presumption of mere law, and the-other a mixed presumption, or a presumption of law and fact. The one is drawn by the court and the other by the jury under the instructions of the court. This second class are, however, no less artificial than mere legal presumptions. They differ from the mere legal presumption, as they must be made by ajiurg and not by the court. As an instance of such a mixed presumption or a presumption of law and fact, a grant of an incorporeal hereditament will be presumed after an adverse possession of twenty years. This is obviously a legal presumption, as it is obviously artifi.cial, yet it is called a mixed presumption or a presumption of law and fact,merely because it is drawn by a jury under the instructions of the court. So an unqualified refusal to deliver up goods on demand made by the owner is presumed to be a conversion in an action of trover, and is called a mixed presumption of law and fact, because it is drawn by a jury under the instructions of the court. It is, however, obviously a legal presumption, because it is artificial; for it is obvious that we cannot naturally infer that a man has converted goods to his own use simply because he refuses to deliver them to the owner on his demand. But as this detention is just as mischievous as a conversion, the law presumes from it a conversion ; and it is a presumption of law and feet merely because the jury
Erom these legal presumptions whether of law or of law and tact, presumptions of fact, or as they are sometimes called of mere fact, differ entirely, as Starkie says, page 751: “They depend upon their own natural force and efficiency in generating belief or conviction in the mind, as derived from those connections which are pointed out by experience; they arc wholly independent of any artificial legal • relations and connections, and differ from presumptions of law in this essential respect, that those depend upon, or rather are, a branch of the particular system of jurisprudence.to which they belong; but a mere natural presumption (a presumption of fact) is derived wholly by means of the common experience of mankind, from the course of nature and the ordinary habits of society. Such presumptions are, therefore, wholly independent of the system of laws to be applied to the facts when established; they remain the same in their nature and operation whether the law of England or Code of Justician is to decide upon the legal effect and quality of facts when found.”
Many of these natural presumptions or presumptions of mere fact, which most frequently arise, have been spoken of and recognized by courts and judges in their decisions of cases and by text-writers; and often they are thus recognized without anything being said as to whether these presumptions thus recognized were legal or artificial presumptions or presumptions of fact, or natural presumptions. But being thus recognized by law these natural presumptions may be termed in an improper sense legal presumptions-; for if no technical force is given them they are, properly speaking, presumptions of fact 'and not presumptions of law. Thus from the improper use of the expression, presumption of law, there has been unfortunately much confusion introduced into the opinions of the courts in some cases and in text-writers. Eor, as wo shall presently see, it is all-important that presumptions of law and presumptions fact should not he confounded. Upon this subject Starkie in his work on Evidence, pp. 751, 752,says:
“Manypresumptions of mere fact are recognized by the law,*785 and therefore in one sense, may be termed legal presumptions, which still, unless some degree oí technical force and weight be given them beyond their natural operation ■ are properly to be ranked as presumptions of mere fact. The recent possession of stolen goods, on a trial for larceny, is recognized by the law as affording a presumption of guilt; and therefore in one sense is a presumption of law but it is still in effect a mere natural presumption (a presumption of mere tact); for although the circumstances may weigh greatly with a jury, it is to operate solely by its natural force, for a jury is not to convict on this or any other charge, unless they be actually- convinced in their consciences of the truth of the fact. Such a presumption is therefore essentially different from the presumption in lato where a jury were to infer that a bond had or had not been satisfied as a few days or even hours more or less had elapsed.”
And in some instances, where this presumption of fact or natural presumption is such as to make the inference drawn clear beyond all doubt, the courts have treated this presumption, as though it a were presumption of-law. See Rex v. Luffe, 8 East 193. On this subject Starkie says, p. 752.
“Although it be the peculiar province of a jury to deal with natural presumptions or presumptions of fact, and to make such inferences as their experience warrants, yet in some instances, where peculiar facts are inseparably connected according to the usual course and order of nature, and the interposition of a jury would be nugatory, the.courts themselves will draw the inference. Thus on a question of bastardy, where the child has been born a few weeks after the access of the husband, the bastardy of the child will be inferred without the aid of a jury. Rex v. Luffe, 8 East 193.”
The instruction given by the circuit court in this case assumes that the presumption that one found in the possession of stolen goods recently after they are stolen is the thief is a presumption of fact and not of law. There can be in my-judgment no question but that the circuit court was right in this. In the case of the State v. Smith, 2 Ired. L. 406, Gaston, says: “From necessity, the law- must admit, in criminal as well as civil cases, presumptive evidence; but in criminal cases, it never allows to such evidence airy technical or arti-
As then the law attaches no technical or artificial operation beyond its natural tendency.to produce the belief under all the circumstances of the case to the recent possession of stolen goods, it is obvious from the definitions, we have given above, that the presumption arising therefrom is nothing but a mere presumption of fact and it is a misuse of language to call it a legal presumption, a misuse of language, it is true, into which the courts and text-writers have frequently fallen for reasons assigned by Starkie and Judge Gaston. The Horth Carolina courts decided in 2 Ired. L. 406, that such presumption arises “only when the possession is of a kind which manifests that the stolen goods have come to the possessor by his owv act or at all events with his undoubted concurrence.”
Tn the case of State v. Hodge, 50 N. H. 510, after a very thorough and exhaustive examination of the whole subject and of many authorities the court decided : “There is no legal presumption of guilt from the exclusive possession of property recently stolen.” The judges in that case say that the first practical difficulty in the way of making it a presumption of law is the impossibility of inventing a rule, by which to determine, whether the possession is recent or not. And as showing this they refer to Cochin’s Case, 2 Lew. C. C. 235; Rex v. Partridge, 7 C. & P. 551; Rex v. Adams, 3 C. & P. 600; Reg. v. Hewlett, 2 Russ. on Cr. 728, note v; Rex v. Dewhirst, 2 Stark. Ev. 449, n. z.; Rex v. Evans, 2 Cox C. C. 270; State v. Williams, 9 Ired. L. R. 140, 143, 148; State v. Shaw, 4 Jones N. C. 440; State v. Kinman, 7 Rich. 497,
Bailey, judge, in the Dew Hampshire case, 50 D. H. 510, says: “But even if the point were not settled by authority-we should come by a simple process of reasoning to the conclusion that there can be no absolute rule for drawing from recent possession of stolen property, a presumption of guilt without reference to the nature of the property. The possession of a metalic or paper piece of money of the smallest denomination five days after it was stolen might have less weight as evidence, than the possession. of the library of Howard University, or of. Powers’Greek slave or an elephant five years after the larceny of such property. It would ordinarily he more probable that the possessor could prove (by other evidence than his own testimony) how he obtained possession in the latter case than in the former. It is equally clear from reason and authority, that the presumption from, recent possession of stolen property depends upon the nature of the property'. * * * * * * Is it the duty of the court or the duty of the jury to determine whether in view of the nature of the property the possession is recent enough to raise the presumption? The duty has frequently been performed by the court. Courts governed by precedent can easily find precedent enough to put that duty upon them. But whenever a judge in the discharge of that duty, undertakes to charge a jury, he practically demonstrates and virtually admits, that there is no rules of law on the subject, lie does not say to the jury ‘there is a general rule of law or a legal presumption applicable to all kinds of property,’ ho must say in substance ‘there is a general rule of law which finds guilt from the recent possession of stolen property;’ but whether the possession is recent or not depends upon the nature of the property. There is no rule of law which divides the infinite varieties of property into three hundred and sixty-five or any other number of kinds and requires yon or me to draw the presumption of one kind one day after the theft, from the possession of another kind two days after, and so on to the end of the list; that allotment of time and variety is left to my judgment; and in my judgment the time and variety in these
The judge then proceeds to refer to and review 2 Bush. Cr. Pr. § 702; Reg. v. Crowhurst, 1 C. & K. 370; Rex v. Evans, 2 Cox C. C. 270; S. C. 1 Ben. & H. L. 66, 363 (1st ed.); and on these cases remarks: “ When courts thus undertake to decide what is a satisfactory explanation or a reasonable account of the defendant’s possession, they manifestly express an opinion on the facts and the weight of the evidence and not on any question of 'law. When Barron A. Colman told the jury in Rex v. Evans that if the statement of the prisoner accounting for his possession of the beetle wa,s false, he must be presumed to have stolen it, the presumption intended was one of fact and not of law. There are more instances and illustrations of the general pi’actice of the judge giving to the j ary his opinion on the facts; and this general practice is the chief origin of the supposed legal presumption drawn from the possession of stolen goods.” When judges, following the common practice of giving the jury their opinion of the facts and the weight of evidence, had charged juries year after year, for a great length of time, that the possession of stolen property was presumptive evidence of guilt, this form of judicial instruction finally came to be considered as the law of the land. Whether it was a matter of fact or a matter of law was practically immaterial, the influence of the court upon the jury being then generally overwhelming in cases,
The judge subsequently on page 520 adds: “It was not the practice to inform the jury that they were bound by the opinion of the judge in matters of law but not in matters of fact. The line between law and fact was not drawn as it is now being drawn in this State. The attention of the bar, the court and jury was seldom called to the distinction.” On page 521 he quotes from Best on Presumption, section 37, this language: “The resemblance between inconclusive presumptions of law and strong presumptions of fact cannot have escaped notice. The effect of each being to assume something as true until rebutted and indorsed in the Roman law and other systems when the decision of both law and fact are entrusted to a single judge, the distinction between them becomes in practice almost imperceptible; but it must never be lost sight of in the common law, when the franchises of judge and jury should always be kept distinct. Unfortunately the line of demarcation between the different species of presumption has not always been observed with the requisite precision. We find the same presumption spoken of by judges sometimes as a presumption of law, sometimes as a presumption of fact, sometimes as a presumption juries should be advised to make, sometimes as one which it was obligatory on them to make.”
As his conclusion from the exhaustive review he says, on page 522: “The law is burdened and obscured by a great mass of common opinion, general understanding, practice, precedent, and authority (including the presumption from-
I have quoted thus largely from this opinion because the views therein expressed, so far as I have quoted them, express the views which I entertain deduced from an examination of the various decisions on this question; and to express my views in clear and emphatic language, I will add to these views however some other reasons, which have led me to the same conclusions. The statement that this “is a presumption established by no legal rule, ascertained by no legal test, defined by no legal terms, measured by no legal standard, bounded by no legal limits,” is shown and illustrated by the great variety of language in which it has been stated by different courts. Thus in People v. Turrell, 1 Wheeler’s Reports 34,it is thus stated: “ Possession of stolen property is not sufficient proof to convict on a charge of larceny where the circumstances are doubtful and good character is shown.” In People v. Preston, 1 Wheeler’s Reports p. 41, the rule is laid down: “On a trial for larceny, proof of the possession of the stolen goods is evidence of the larceny charged when good character is not, shovm.” In these cases the rule is laid down, that the possession of stolen goods is presumption, that the possessor is the thief, unless he proves his good character. So far as these cases state, the qualification of the rule is the proof of good character by the prisoner, and not either the possession being recently after the theft or being exclusive. In State v. Smith, 2 Ired. L. 402, the rule is thus laid down: “The presumption is, that- he who is found in possession oí the stolen goods recently after the theft was committed is himself the thief applies only when the possession is of a kind, which manifest that the stolen goods come to the possessor by his own act or at all events with his unquestionable concurrence.” The rule
Many other cases might be cited, where the rule has been differently laid down but these will suffice tó show that in determining, whether any presumption of guilt arises in any given case from the recent possession of the stolen property, the following among innumerable other circumstances are to be considered: first, the nature of the property; secondly, in close connection therewith and dependent thereon the length of time since the property was stolen; thirdly, whether the possession of the property by the prisoner was exclusive; fourthly, whether his possession was of such a character that the inference could be. dr&wu therefrom that he came into
In Smith v. The State, 58 Ind. 341, it is held: “The presumption arising from the possession of stolen goods is one wholly of fact and not of law.” In this the court of appeals of Virginia concurs. (Wash’s Case, 16 Gratt. 530; Price v. Commonwealth, 21 Gratt. 846.) If this wore a presumption of law, of course it would he proper for the court to instruct the jury to draw the legal inference; for, if it were a presumption of Jaw, the law would give to the possession of property stolen an artificial weight and would not leave it to have only its natural weight with the jury in determining
It is 'obvious, from what we have said, that this recent exclusive possession must depend upon surrounding circumstances for its quality and effect, as upon the nature of the goods, the character of the possession, oven though it bo exclusive, the character of the prisoner and his standing in the community, and a great variety of other circumstances; and therefore it would be clearly improper in such a case for a court to interfere with a jury by endeavoring to aid them in drawing a conclusion of fact from a great variety of facts and circumstances. In the case of Washington v. B. & O. R. R. Co. 17 W. Va. 215, in speaking of a matter somewhat resembling this, we said even in a civil case: “It is not proper for a court to separate a lew facts from their connection with others, and make them the basis of an instruction of this character. Such a course would tend to mislead the jury. While the court has the power to set aside the verdict of á jury and grant a now trial in a proper case, still it is not proper for the court to derogate from the proper province of the jury, as it would do it it should separate a particular fact from its connection with others on which it is dependent for its quality, and instruct the jury that such fact constitutes negligence.” How it seems to me much more improper, that in a criminal prosecution, if the court separate the possession of stolen goods by the prisoner from its connection with the nature of the goods, and as connected then with the length of time since they were stolen, the good character of the prisoner, theylmractcr of the possession which might evince that the property might not have been taken by him, though it was in his possession and many other facts and circumstances, as for instance, his behavior when arrested, and then on this possession, though recent and exclusive, base an instruction that it gives rise to a presumption of guilt. And it seems to me that it does not make this any the less objectionable, that the court tells the jury, that this is a presumption of fact. Such an instruction derogates from the proper province of a jury and ought not to be given. I will not say
But this is not a case ot this character. The instruction in this case is taken from tlie one approved by the Virginia court of appeals in Price’s Case, 21 Gratt. 846, though it is more objectionable than that instruction. But had it been in the words of the instruction in that case, we would equally have condemned it as in derogation of the province of the jury. The instruction in the case which is now under consideration we regard as much in derogation of the province of the jury as were a number of the instructions asked by the prisoner in the case of the State v. Thompson, 21 W. Va. 741, 742, syl. 3, which this Court declared ought not to be given. Of this character in that case wore instructions Ho. 3 p. 744, No. 6 p. 744, No. 8 p. 745, No. 9 p. 745. One of these instructions thus rejected by this Court as improper to be given was in effect, that if the jury was satisfied that certain witnesses have each of them wilfully and knowingly sworn falsely as to any part or matter material to the issue involved in this ease, the jury are to disregard each and every other material fact sworn to on this trial by such witness, except 'so far as they may be satisfied from the evidence, that the other material facts so sworn to by such witnesses has been corroborated by other credible evidence in the case. This amounted to an instruction that if the witness wilfully and knowingly swore falsely to any material fact, he was presumed to be unworthy of belief, and no part of his testimony should be
We are therefore of opinion that because of the error of the circuit court in giving at the instance ot the State this instruction set out in the third bill of exceptions, the judgment of the circuit court rendered on June 13, 1883, so far as it ascertained the term of imprisonment of the said Wm. G. Heaton in the penitentiary of this State at three years, and so far as it adjudged that he be imprisoned in the penitentiary of this State for the term of three years, the period fixed by said court; and so far as it ordered that the sheriff of Gilmer county do, as soon as possible after the adjournment of said court, convey said Wm. G. Heaton from the jail of said county to said penitentiary of this State, there to be kept and imprisoned and treated in the manner directed by law, be and the same is hereby set aside, reversed and annulled, and that the residue ot the said judgment of June 13, 1883, be affirmed. And this Court proceeding to render such judgment as the said circuit court ought to have rendered, doth set aside the verdict of the jury rendered in said canse, and doth award a new trial of the issue in said case. And this case is remanded to the circuit court of Gilmer county to he further proceeded with according to the principles laid down in this opinion, and further according to law.
REVERSED IN PART. RliMANDED.