Johnson v. Commonwealth

• Decision Date: 10 December 1873
• Citation: 65 Va. 555
• Parties: JOHNSON v. COMMONWEALTH.
• Court: Virginia Supreme Court

65 Va. 555

JOHNSON v. COMMONWEALTH.

Supreme Court of Appeals of Virginia.

December 10, 1873

1. A was standing in a street in R, holding six dollars in his open hand, which he was counting, and J passing by took the money out of his hand and walked off; no force being used beyond what was necessary to withdraw the money. A asked J for it several times as she walked off, but she would not return it. This is grand larceny under the statute if done animo furandi. Sess. Acts 1866-'67, ch. 283, § 14.

2. The indictment against J is for stealing six dollars of " United States treasury notes." Upon an exception to the refusal of the court to grant J a new trial, the certificate of facts states that A was holding " some money," & c. The facts certified do not sustain the verdict.

The case is stated by Judge Moncure in his opinion.

Cabell & Meredith, for the prisoner.

The Attorney-General, for the Commonwealth.

OPINION

MONCURE P.

This is a writ of error to a judgment of the Hustings court of the city of Richmond, convicting the plaintiff in error, Mahala Johnson, of grand larceny, and sentencing her to confinement in the penitentiary for five years. The offence for which she was prosecuted is declared by the Code, chapter 192, section 14, as amended and reenacted, first by the act passed February 20, 1866, Acts of 1865-6, p. 89, chap. 23, and again by the act passed March 1, 1867, acts of 1866-67, p. 709 chap. 283, which is in these words:

" § 14. If any person steal from the person of another money or other thing, of the value of five dollars or more, he shall be guilty of grand larceny, and be confined in the penitentiary for a period not less than five nor more than ten years."

The indictment strictly pursued the terms of the statute, and was good in form and substance. It charged the larceny of divers notes of the national currency of the United States, the same being United States treasury notes, the number and denomination of which were to the grand jurors unknown, for the payment of divers sums of money, in the whole amounting to the sum of six dollars, and of the value of six dollars; and divers other notes, & c. (describing them differently), the property and notes of one Alfred Jasper, the said sum of six dollars, & c., being then and there due and unsatisfied to the said Alfred Jasper, from the person and against the will of the said Alfred Jasper.

The jury found the accused guilty, and ascertained the term of her confinement in the penitentiary at five years. She moved the court to set aside the verdict and grant her a new trial, upon the ground that the verdict was contrary to the law and the evidence; which motion the court overruled; and she excepted to the opinion of the court.

The facts proved on the trial are certified in the bill of exceptions, and are as follows: " That Alfred Jasper was standing upon Cary street, in the city of Richmond, and was holding some money, six dollars, in his open hand, and was counting it, and that Mahala Johnson, the prisoner, came by and took the money out of his hand and walked off; he asked her for it and several times begged her to return it to him as she walked off; that no force beyond what was necessary to withdraw the money was used; and that finding she would not return the money, and wishing to keep the peace, he went immediately to the station-house near by and got a warrant for her arrest, which was shortly afterwards executed upon the prisoner."

The only error in the judgment assigned in the petition for a writ of error is, that, by the laws of Virginia, the offence of which the prisoner stands convicted cannot be considered larceny from the person. " For in this State" (she proceeds to say in her petition) " that offence is divided into two classes, viz: ‘ privately stealing,’ and ‘ open and violent assault, commonly called robbery.’ And your petitioner is advised that the statute under which she was indicted was not designed for such cases as the one of which she was convicted, but for the cases of those commonly known as ‘ pickpockets,’ who properly come under the first class mentioned, i. e., ‘ privately stealing.’ "

There is no such offence known to the law of Virginia as " private" stealing, from the person of another or otherwise. The law makes no distinction between private and public stealing, except that robbery must, of necessity, be committed publicly. But it is not pretended that the offence in this case was robbery, and therefore nothing further need be said here as to the nature of that crime. There is nothing in our law on the subject of " pickpockets." The law on which this prosecution is founded uses plain language: " If any person steal from the person of another money or other thing," & c. The charge here is in the very words of the statute, of stealing " from the person of another," and the proof corresponds literally with this charge in regard to stealing from the person of another. It is, that money to the amount and value of six dollars, belonging to the prosecutor, and in his hands, was, by the prisoner, taken therefrom and carried away. Whether she did it animo furandi or not was a question which belonged to the jury, and they decided it against the prisoner, and the court below refused to set aside their verdict.

There is a similar statute to ours in Massachusetts against "...