[Syllabus Material]
[Syllabus Material]
[Syllabus Material]
[Syllabus Material]
This
was an application for a Writ of Error to a judgment of the
Superior Court of Law for Henrico county, whereby the
petitioner was sentenced to one year's imprisonment in
the Penitentiary.
The
Indictment contained five Counts. The first Count charged
that the prisoner was an officer of the Farmers' Bank of
Virginia, a bank chartered by this Commonwealth, and being
such officer, did feloniously embezzle, and convert to his
own use, a certain security and facility, viz: a paid check
for the amount of $ 700, of the value of $ 700, of the
property and effects of the President, Directors and Company
of the said Farmers' Bank, against the Statute, & c. The
second Count charged that he was such officer, and being
such, a certain paid check, then lately drawn, for the
payment of $ 700, and of the value of $ 700, being a security
and facility, belonging to the said President, Directors and
Company, was placed under his care and management, by virtue
of his office aforesaid, and having it so placed, & c. did
feloniously embezzle and convert to his own use, the said
paid check, against the form of the Statute, & c. The third
Count charged that he was an officer of the Farmers' Bank
of Virginia, and being such, had under his care and
management $ 700, in monies numbered, of the value, & c. and
one paid check for $ 700, of the value, & c. and twenty bank
notes for the payment of $ 700, of the value, & c. of the
property, & c. and placed under his care and management, by
virtue of his place and office aforesaid, and so having the
same placed under his care and management, he embezzled, & c.
the same, against the Statute. The fourth Count charged that
he was an officer, & c. and exercising the office and place
of first accountant in said bank, and being such officer, had
under his care and management a sum of money in gold and
silver coin, viz: the sum of $ 700, also divers bank notes, &
c. and one paid check, drawn by Robert Abbatt, Jr. & Co. on
the 9th October, 1820, payable to Hughes & Armistead, or
bearer, and directed to the Cashier of the bank, & c. for the
payment of $ 700, and of the value of $ 700, & c. of the
monies, property and effects, & c. placed under his care and
management, by virtue of his place and office aforesaid, and
having the same so placed, & c. he embezzled, & c. the same,
against the Statute, & c.
These
four Counts were framed on the Act of Assembly passed on the
24th day of February, 1820, intituled, " An Act to amend
the Act, intituled, 'An Act against embezzling of
records.'" [a]
The
fifth Count charged him with the larceny of sundry bank
notes, and dollars. This Count is set forth in full in the
opinion of the Court, and therefore need not be here set out.
(Post. p. 304.)
The
prisoner having pleaded, two several Bills of Exception were
signed by the Court, which it is necessary to set forth, in
haec verba: " Memorandum: When the venire in this Case
was called, Christopher Irvine, one of them, and the first
one called, was challenged by the prisoner, for cause, and
being sworn on the voir dire, said that he had formed a
decided opinion that the prisoner was guilty, and had
frequently expressed that opinion; that he did not know that
that opinion applied particularly to the very charges alleged
in the Indictment, nor had he ever heard the evidence in
Court in support of the said charges, except as hereinafter
stated: but that he lived in Richmond, and had had a great
deal of conversation on the subject of the various charges of
the embezzlement of checks, and the larceny of money from the
Farmers' Bank of Virginia, with which the prisoner had
been charged, and that he the said Irvine had formed a
decided opinion that the prisoner had been guilty of
embezzling various checks, and stealing sundry sums of money
from the Farmers' Bank of Virginia, without being able to
distinguish between the particular sums of money, and the
particular checks, which form the subject of the several
Indictments now depending against him. The said Irvine
moreover said, that at the last Term of this Court, when the
subject of the check of Abbatt & Co. charged in this
Indictment, was investigated before the jury, he was casually
in Court at different times, and heard part of the evidence,
but does not recollect then to have heard any part of the
evidence in relation to Abbatt & Co.'s check. That the
said Irvine had often heard that said check was one of those
which the prisoner was charged with embezzling, and that his
opinion of the prisoner's guilt related as much to that
check, as to any other, but that the opinion was a general
one, that the prisoner had got the money out of the bank by
the use of checks in the manner which had been alleged,
without applying definitely to any particular check, or sum
of money. It was moreover shewn to the Court, in support of
the challenge, that in relation to the embezzlement and
larceny charged in the Indictment, there had been an
examination before an Examining Court in the City of
Richmond, in the month of August, 1821: that the subject of
the same embezzlement and larceny had been examined before a
jury in this Court, at the last Term, though no verdict had
been rendered in relation thereto, and that again the same
charge of larceny and embezzlement had been examined before
an Examining Court in the City of Richmond, in the month of
December, in the year 1821, in connexion with other charges
of embezzlement and larceny, of the same character; that he
did not attend either of the Examining Courts aforesaid, and
has not heard any of the evidence, except as before
mentioned. The said Irvine was further asked on oath,
whether, if he were impanelled in this Cause, he would go
into the trial with an opinion that the prisoner was guilty?
He said he certainly should with an opinion generally that he
was guilty of the charges that he had heard imputed to him,
of which the charge in relation to Abbatt & Co.'s check
was one, but that, as above stated, he had not heard the
evidence particularly, in relation to this check: that he
believes he would be guided by the evidence, if he were on
the jury, but that he should be unwilling to trust himself.
This challenge for cause was overruled by the Court, and the
prisoner put upon his election, to which opinion the prisoner
excepts." [Note. Immediately thereupon the prisoner
challenged the venireman peremptorily.]
The
second Bill of Exceptions was in the following words: "
Memorandum: In inpanelling a jury for the trial of this
Cause, Daniel S. Mosby was called, and challenged by the
prisoner for favor. Whereupon the said Mosby being sworn on
the voir dire, was asked by the Court whether he had formed
an opinion of the guilt or innocence of the prisoner, upon
the charges alleged against him in the Indictment? The said
Mosby answered, that he had not: that he had never heard of
the check of Abbatt & Co. in the Indictment mentioned, till
this day. The prisoner, by his Counsel, then asked the said
Mosby whether he had formed an opinion as to the guilt or
innocence of the prisoner upon sundry transactions of a
similar nature, which had been alleged against the prisoner;
avowing a two-fold object in this enquiry; first, by asking
this and other questions upon a cross examination, to
ascertain certainly whether the said Mosby had not formed and
expressed an opinion upon the charges in this Indictment; and
secondly, to enable the prisoner, by ascertaining the state
of the said Mosby's mind, to exercise advisedly his right
of peremptory challenge, which had not yet been used to the
extent allowed by Law. And with the same views, the prisoner,
by his Counsel, asked the said Mosby this other question,
whether he had never heard of other checks than that of
Abbatt & Co. alleged to have been embezzled by the prisoner
from the Farmers' Bank of Virginia. To these questions
the Attorney General objected, and the Court refused to
permit the said Mosby to answer them, and denied to the
prisoner the right of asking any questions of the said Mosby,
with the view of enabling the prisoner prudently to exercise
his right of peremptory challenge, and denied the prisoner
the right of cross examining the said Mosby, with the view
above explained, inasmuch as he had answered the question
propounded by the Court, in a manner which left no doubt that
the said Mosby had formed no opinion in relation to the guilt
or innocence of the prisoner, as it regarded the check of
Abbatt & Co. in the Indictment mentioned. To which opinion
the prisoner excepted." [Note. The said Mosby was then
elected by the prisoner.]
The
arraignment of the prisoner on this Indictment, occurred on
the 29th March, when he pleaded to issue, and of the venire
summoned for his trial, only one person was elected by the
prisoner, and two of the bystanders; whereupon a new Venire
Facias was awarded by the Court, returnable to Monday, the 2d
April, to summon sixty freeholders to attend for the trial.
On that day, eight other jurors were elected from those
returned, and from the by-standers, and a jury not yet being
formed, another Venire Facias was awarded, returnable the
next day, to summon twenty-four freeholders. On the 3d April
a jury was formed. It may not be improper to observe, that
the great difficulty of forming a jury in this Case, arose
from the number of prosecutions against the prisoner, (there
being eighteen in all,) from the frequency with which they
had been before the public, there having been two Examining
Courts, and this Case having been before both of them, and
also under trial once before in the Superior Court, and from
the...
