Haynes v. Commonwealth

• Decision Date: 02 May 1877
• Citation: 69 Va. 942
• Parties: HAYNES v. THE COMMONWEALTH.
• Court: Virginia Supreme Court

69 Va. 942

HAYNES v. THE COMMONWEALTH.

Supreme Court of Appeals of Virginia.

May 2, 1877

Absent, Moncure, P., and Anderson, J.

1. On a prosecution for larceny, the prosecutor gave evidence tending to show when and how the larceny was committed on him. On reexamination he was asked by the attorney for the commonwealth if he did not immediately after the alleged larceny go to the house of another person, who lived a few doors off, and tell him that he had been robbed, and the circumstances? On objection to the question by the counsel for the prisoner, the court below sustained the objection to so much of the question as referred to the details of the statement, but allowed the witness to state that he had told the other person at the time named " that he had been robbed," and then allowed this person, to whom the statement was made, to testify that the prosecutor had come to him and told him that he had been robbed; to which the counsel for the prisoner excepted.--HELD:

1. The statements were inadmissible. They were inadmissible as part of the res gestæ . " Facts which constitute the res gestæ must be such as are so connected with the very transaction or fact under investigation as to constitute a part of it," and the above statements do not come within the definition.

2. They were inadmissible, as a complaint made by the prosecutor recently after the outrage was committed. The only exception to the general rule, excluding the statements or declarations of parties as hearsay evidence as a complaint, is that in cases of rape, and in this case the complaint must be made at once.

3. They were inadmissible, for the purpose of rebutting the imputation that the prosecutor was drunk at the time the statements were made. If the credibility of a witness is assailed because he was drunk, the only way to meet the assault is by proving by others his actual condition at the time of the transaction of which he speaks, and not by statements and declarations of his own and others, which might prejudice the prisoner while given in evidence under the pretence of showing that they were such as a sober man would make under the presumed circumstances of the case.

John S Haynes was indicted in the hustings court of the city of Richmond for grand larceny; and on his trial he was found guilty, and the term of his imprisonment in the penitentiary was fixed at five years; and the court sentenced him accordingly.

On his trial the prisoner took two exceptions to rulings of the court; and applied to a judge of this court for a writ of error; which was awarded.

The bills of exception are set out in the opinion of Judge Christian.

Crump and Witt, for the prisoner.

The Attorney General and George D. Wise, for the commonwealth.

OPINION

CHRISTIAN, J.

This case is before us upon a writ of error to a judgment of the hustings court of the city of Richmond. The prisoner was indicted for the larceny of twenty dollars from the person of McDonough, the prosecutor.

Neither the facts proved on the trial, nor the evidence, are certified in the record.

The single question we have to decide is as to the admissibility of certain testimony offered by the commonwealth's attorney, as shewn by the following bills of exceptions:

FIRST BILL OF EXCEPTIONS.

Be it remembered, that on the trial of this cause, the commonwealth introduced as its first witness, Dominick McDonough, the prosecutor, who gave evidence on examination in chief, tending to show that the accused had, on the night stated in the indictment, stolen from his person his pocket book, containing the money named in the indictment, and on cross-examination he was asked whether he had not been drinking liquor on that night, to which he replied, yes, but that he was sober and in his perfect senses. Whereupon, on reë xamination, he was asked by the attorney for the commonwealth, if he did not, immediately after the alleged larceny, go to the house of one William Disney, who lived a few doors from the place where the alleged larceny occurred, and tell him that he had been robbed, and the circumstances of the robbery as he had detailed them on his examination in chief; to which question the prisoner, by counsel, objected, and the court sustained the objection to so much of the question as referred to the details of the statement, but permitted so much of it as stated to Disney that he had been robbed; to which question, as modified, the accused excepted; and thereupon the witness stated that he had gone to Disney's, who lived three or four doors from the place of the alleged larceny, and told him he had been robbed; to the admission of which evidence the accused also excepted, and asked that the same be excluded; but the court overruled said objection, and admitted and refused to rule out the said evidence; to which two opinions, in permitting said question, as modified, to be put, and in permitting the same to be answered, the accused, by counsel, excepts, and prays that this, his first bill of exceptions, may be signed, sealed and reserved to him, which is accordingly done.

SECOND BILL OF EXCEPTIONS.

Be it remembered, that after the testimony stated in the first bill of exceptions (which is herein referred to and made part hereof) had been given, the commonwealth called William Disney, who was asked by the attorney for the commonwealth on his examination in chief, whether Dominick McDonough, the prosecutor and witness who had just testified, as stated in the first bill of exceptions, had not come to his house on the night of the alleged larceny, as stated in the indictment, and informed him that he had been robbed; to which question the accused, by counsel, objected; but the court allowed the said question to be put; to which the witness answered, yes, he had come to his house...