Allen v. Commonwealth

• Decision Date: 24 January 1918
• Citation: 94 S.E. 783,122 Va. 834
• Court: Virginia Supreme Court
• Parties: ALLEN . v. COMMONWEALTH.

94 S.E. 783

(122 Va. 834)

ALLEN .

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Jan. 24, 1918.

Error to Hustings Court of Petersburg. R. R. Allen was convicted of grand larceny, and he brings error. Affirmed.

L. O. Wendenburg, of Richmond, for plaintiff in error.

The Attorney General, for the Commonwealth.

PRENTIS, J. The plaintiff in error was convicted of grand larceny under an indictment, the first count of which charges him with the larceny of a check for $76.70, al leged to be the property of Emma Vaughan;

who was the payee of such check; the second count charges the larceny of that amount of money belonging to the said Emma Vaughan; and the last two counts were identical with the first two, except that the check, which was drawn by the Metropolitan Life Insurance Company, as well as the money, were alleged to be the property of that company.

The accused filed 14 bills of exceptions', but, as several of them cover substantially the same propositions of law, presented at different stages of the trial, it will not be necessary to discuss each of them in detail.

The first exception is that there is a variance between the check and its description in the first and third counts of the' indictment. This variance consists of the omission of the last figure in the number of the policy of insurance, in settlement of which the check was given; the true number being 46600371, whereas the number stated was 4660037. After having craved oyer of the check, the accused moved to quash the counts, because of this variance. We think the court properly overruled this motion, and that the variance was immaterial. The material parts of a check are the names-of the drawer and drawee, the amount thereof, its date, and the bank upon which it is drawn. In this indictment all of these material parts of the check fully appear, as well as certain other marks upon it, clearly identifying it as the check drawn by the insurance company, the larceny of which was charged. The number of the policy appearing on the face of the check added nothing to its legal effect as a check, and was only useful to the company as a receipt for claims or demands under that particular policy. The accused could not have been surprised, prejudiced, or put to any disadvantage whatever in his defense by this clerical error in drawing the indictment.

The accused also moved to quash the entire indictment because of a misjoinder, alleging.that there were several distinct felonies charged in the various counts of the indictment. Even if this had been true, the motion should have been-overruled, because distinct felonies may be charged in different counts. In this case, however, it was perfectly apparent that only one larceny was being charged; that the four counts referred to the same transaction, and were drawn in order to meet varying phases of the proof or differences of opinion as to whether the money and check belonged to the insurance company or to Emma Vaughan, the payee. It is conceded by counsel for the plaintiff in error that the ownership of the alleged stolen property may be averred to be in different persons in different counts of the indictment, and the motion to quash was properly overruled.

In Mitchell v. Commonwealth, 93 Va. 777, 20 S. E. 892, this is said:

"In cases of felony, where several offenses are charged in sundry counts of the same indictment, if the court sees that the charges are so distinct that to try them together would confound the prisoner, or distract the attention of the jury, it will require the commonwealth's attorney to select which count he will try first."

It is well settled that a felony may be charged in different ways in several counts, so as to conform to the evidence as it may develop at the trial. Dowdy's Case, 9 Grat. (50 Va.) 727, 60 Am. Dec. 314; Hausenfluck's Case, 85 Va. 709, 8 S. E.₍ 683; Anthony v. Commonwealth, 88 Va. 847, 14 S. E. 834.

The accused also moved the court to require the commonwealth's attorney to give a bill of particulars, stating whether he proposed to try the accused for larceny at common law, or for larceny of the check under the statute (Code, § 3708). The court properly overruled this motion. Each count of the indictment charged the accused with grand larceny, and with sufficient particularity. No bill of particulars could have been properly required which would have given him any more specific information of the crime with which he was charged.

Another error alleged grows out of this question and answer: The witness C. E. Hayes, who was the section head in the claim department of the Metropolitan Life Insurance Company, had identified the life insurance policy on the life of Indiana Cates, as well as certain other documentary evidence connected therewith, and was asked this question by the commonwealth's attorney:

"From the papers in this case, Mr. Hayes, is there anything there to show that the company made any requirements about funeral expenses?"

The answer was:

"No, sir; not in the papers I have here."

The defendant objected to this answer because the policy had this clause in it:

"In case of such prior death of the insured, the company may pay the amount due under this policy to either the beneficiary named below, or to the executor or administrator, husband or wife, or any relative by blood, or connection by marriage of the insured, or to any other person appearing to said company to be equitably entitled to the same by reason of having incurred expense on behalf of the insured, or for his or her burial, and the production of a receipt signed by either of said persons shall be conclusive evidence that all claims under this policy have been satisfied."

The court overruled the objection, and allowed the question and answer to go before the jury.

It is difficult to appreciate the force of this exception. It clearly appeared in the testimony that the company had never made any requirement as to funeral expenses of Indiana Cates, and the clause in the policy above quoted was before the jury as a part of the evidence in the case. The court also gave instructions 12 and 12a, telling the jury that, if they believed that the accused had in good faith paid to the undertaker, Epps, the amount which he claimed to have paid him out of the insurance money collected for the burial of the assured, then the accused was not guilty of the larceny of either the property of the insurance company or the property of Emma Vaughan. We find no error in this ruling.

Another error alleged is that after J. M. L. Epps, the undertaker who had buried the assured, Indiana Cates, and who had testified that, although the cost of burial charged to the Metropolitan Life Insurance Company or to the accused was only $23.50, nevertheless, at the request of the accused, he had made out and receipted a bill to him for $71.50, for such burial, then for the purpose of attacking the credibility of the witness, on cross-examination, the attorney for the accused asked him this question:

"Isn't it a fact that you had your buggy injured by a gentleman on the outside, and that you had it repaired at J. A. Lewis', and that he handed you a bill for $6, and you asked him to raise it to $12, so that you could get the entire $12, and that you did collect the $12, although the repairs were only $6?"

The commonwealth's attorney objected to this question, and his objection was sustained.

This is a question about which there has been great contrariety of decision in the English and American courts. The doctrine most generally accepted now is that such a question on cross-examination as to irrelevant collateral matters tending to show immoral character, affecting the credibility of the witness under cross-examination, should be left to the discretion of the court in the particular case. It is everywhere settled that the cross-examiner who asks such a question is bound by the witness' answer, and cannot introduce evidence to contradict him.

In 40 Cyc. 2569, 2570, the modern author ities are collected. Among other things, it is there said:

"Neither should the door be thrown open so wide for impeaching evidence as to allow questions to be asked upon the pretense that the object is impeachment when there is no reasonable ground to expect favorable answers, or to be able to prove by direct evidence that the unfavorable ones are false, and the sale tendency, if not the purpose, is to create suspicion in the minds of the jury."

In this state it may be regarded as settled that such questions cannot be asked. In Uhl's Case, 6 Grat. (47 Va.) 706, it was held that the record of conviction of a witness of petty larceny, in another state, is not admissible to impeach the veracity of the witness. In Langhorne's Case, 76 Va. 1021, the court says:

" 'It is competent in order to discredit a witness, to offer evidence attacking his character for truth and veracity. Particular independent facts, though bearing on the question of veracity, cannot, however, be put in evidence for this purpose.' 1 Whart. Law of Ev. § 562. 'Noquestion respecting any fact irrelevant to the issue can be put to a witness on...