Jordan v. Commonwealth

• Decision Date: 18 December 1874
• Citation: 66 Va. 943
• Parties: JORDAN v. COMMONWEALTH.
• Court: Virginia Supreme Court

66 Va. 943

JORDAN v. COMMONWEALTH.

Supreme Court of Appeals of Virginia.

December 18, 1874

1. On a prosecution for a robbery, a witness gives a description of the robbers received from the wife of the prosecutor a few minutes after the occurrence, and he states that he pursued after the parties and found the prisoner and another, at a place he describes. The commonwealth's attorney may then properly ask him whether the prisoner and the other person corresponded on that night, in dress and appearance, with two of the men described by the wife of the prosecutor. And his answer that they did, was proper evidence.

2. The prisoner is prosecuted for the robbery of a pistol. If he snatched the pistol from the hands of the prosecutor simply to prevent the prosecutor from using it against his assailants, without at the time intending to appropriate it though he afterwards takes it away and sells it, this is not robbery of the pistol; though he and others went together to the house of the prosecutor for the purpose of committing a robbery.

3. But in such case, if the prisoner, when he snatched the pistol had the intention to deprive the prosecutor of it, though he may have also had the purpose to prevent the use of it by the prosecutor, this is robbery.

4. To constitute a robbery it is not necessary that the prisoner should intend to appropriate the property to his own use. If he intended to deprive the prosecutor of his property, that is sufficient.

5. The criminal jurisdiction of the Hustings court of the city of Richmond extends one mile beyond the city limits, on the north side of James river.

This was an indictment in the Hustings court of the city of Richmond, against Henry Jordan for the robbery of Elijah Priddy of a pistol. Priddy lived in the county of Henrico beyond the limits of the city, but within one mile of the corporation line, and the robbery was charged to have been committed at his house. On the second trial of the prisoner he was found guilty by the jury, and the term of his imprisonment in the penitentiary was fixed at five years; and there was a judgment according to the verdict.

On the trial the prisoner took two bills of exceptions to rulings of the court; and applied to a judge of this court for a writ of error to the judgment; which was awarded. The questions are sufficiently stated in the opinion of the court, delivered by Judge Staples.

Young, for the prisoner.

The Attorney General, for the commonwealth.

OPINION

STAPLES, J.

The first assignment of error arises upon a question asked a witness, and set out in the first bill of exceptions. This witness had testified that he went to the prosecutor's house within a few minutes after the robbery was attempted; that the persons implicated in the robbery were described to him by Mrs. Priddy, the wife of the prosecutor; that he went immediately in pursuit of these persons, and found the prisoner and a man named Thos. Oakley, who is also under indictment for the same offence, and several other persons, in a bar-room about a mile distant from the prosecutor's house; and after the witness had described the dress and general appearance of the prisoner, he was asked by the commonwealth's attorney " Whether the prisoner and the said Oakley corresponded on that night, in dress and appearance, with two of the men described by Mrs. Priddy?" The witness answered " that they did." The counsel for the prisoner insists that this was error; that the witness ought to have been asked to describe the appearance and dress of the prisoner and his companion, so that the jury might judge whether they answered to the description given by the prosecutor's wife in her testimony.

Now, as a matter of fact, that precise course was pursued. The wife of the prosecutor did describe to the jury the appearance and dress of the persons engaged in the attempted robbery; and the other witness described the persons he saw in the bar-room. The jury were thus enabled to judge whether there were any material discrepancies in the description given by these witnesses respectively. But the commonwealth was not necessarily restricted to this mode of examination. The description of the prisoners given a few minutes after the occurrence, was more likely to be correct than any given on a subsequent occasion. On the trial the wife of the prosecutor might fail to remember many particulars or details observed and remembered at the time of the robbery. Her description given to the witness a few minutes afterwards was a part of the res gestæ . And it was entirely competent to the commonwealth to prove before the jury the particulars of that description, as was done by the witness without objection by the prisoner. This proof being adduced, there could be no valid objection to an equiry of the witness whether the appearance and dress of the prisoner and his companion, as seen at the bar-room, corresponded with the description thus given. If it be conceded that the witness was thus requested to express an opinion, it is sufficient to say that upon questions of identity it is competent to the witness to give his opinion; the grounds upon which it rests being always open to the investigation of the adverse party. When the witness states that the prisoner at the bar is the same person seen on a particular occasion, he is giving his opinion; and when he undertakes to describe the dress and appearance of the prisoner, it is still an opinion. The weight to which it is entitled depends upon his integrity his intelligence, his accuracy and means of observation. In the present case the question asked the witness was...