Price v. Commonwealth

• Decision Date: 17 January 1872
• Citation: 62 Va. 846
• Parties: PRICE v. THE COMMONWEALTH.
• Court: Virginia Supreme Court

62 Va. 846

PRICE v. THE COMMONWEALTH.

Supreme Court of Appeals of Virginia.

January 17, 1872

1. If a person be indicted for the simple larceny of a thing, and the proof be that it was stolen by some other person, and received by the accused knowing it to have been stolen, the proof will sustain the charge; the act making the receiving of a thing stolen knowing to be stolen, larceny. Code, edi of 1860, p. 789, § 20.

2. P is indicted for receiving a horse which had been stolen, knowing that it had been stolen. The indictment may charge specially the fact of receiving the horse, with tne knowledge that it had been stolen, or it may charge P with the larceny of the horse; and the latter would seem to be the better practice.

3. P having been indicted in February 1871, for receiving a horse knowing it to have been stolen, and also for the larceny of the horse, elects to be tried in the Circuit court. In the Circuit court he, in September 1871, moves the court to send him back to the County court for trial, on the ground that the Circuit court has no jurisdiction to try him. The act of February 12, 1866, which provides that horse stealing may be punished with death, or confinement in the penitentiary, at the discretion of the jury, has not been repealed, and the Circuit court has jurisdiction to try the prisoner.

4. The record of the indictment against P sent to the Circuit court shows that it was found at the February term of the court by a grand jury of eight members; but it does not show that the Februry term was not one of the four regular terms of the said court, to which twenty-four citizens were required to be summoned to constitute a grand jury. In the absence of evidence to the contrary, it must be presumed that the indictment was found at a term when a grand jury might consist of only eight members.

5. The record in the case does not show that the indictment was endorsed a " " true bill" by the grand jury and signed by the foreman. Such endorsement, though usual, is not necessary, and the record of the finding of the jury upon the order book of the court, is the proper evidence of that fact.

6. The venire facias having been issued on the 18th of August 1871, properly conformed to the provisions of the act of March 29, 1871, Sess. Acts 1870-71, ch. 262, p. 357, which went into operation on 1st of July 1871; though this act was not in force at the time the prisoner was arrested, committed and indicted.

7. If property be stolen, and recently thereafter be found in the exclusive possession of the prisoner, then such possession of itself affords sufficient grounds for a presumption of fact that he was the thief; and in order to repel the presumption makes it incumbent on him, on being called on for the purpose, to account for such possession consistently with his innocence. If he give a reasonable account of it, then it devolves on the Commonwealth to prove that such account is untrue. If he gives an unreasonable account of it, then it devolves on the prisoner to sustain such account by other evidence. What is such a recent possession as raises a presumption against a prisoner, in the meaning of the rule is a question for the jury, and depends upon the nature of the property and other circumstances of the particular case.

8. The facts certified in this case are insufficient to authorize a conviction.

At the February term 1871 of the County court of Cumberland county, the grand jury found an indictment against George W. Price for horse stealing. The indictment contained four counts. The first three counts charged that Price, on the 10th of February 1871, received the horse described, which had been lately before stolen, knowing it to have been feloniously stolen. The fourth charged him with having stolen the horse.

The prisoner was brought into court at the March term, when, being arraigned, he demanded to be tried in the Circuit court of the county. At the September term of the Circuit court, the prisoner demurred to the indictment; and stated two causes of demurrer: First, because the record certified by the clerk of the County court to the Circuit court, does not show whether the indictment was found at a regular or quarterly term of the County court, or not. Second, because the record does not show a sufficient finding of an indictment by the grand jury, in that there is no certificate to show that it was endorsed " a true bill," by the grand jury, and signed by the foreman.

The copy of the record of the County court certified by the clerk, says: Be it remembered, that at a County court held for Cumberland county, on Tuesday, the 28th of February 1871, came Thomas C. Brown, foreman, & c., naming seven other persons, a grand jury of inquest for the body of this county, sworn and adjourned until to-day, appeared in court according to their adjournment, withdrew, and after some time returned into court, and presented an indictment against George W. Price for horse stealing, " a true bill," which indictment is in the words and figures following, to wit: and then the indictment is set out at length. But it is not stated that the indictment was endorsed " a true bill," or that it was signed by the foreman.

The court overruled the demurrer; and the prisoner excepted. This is his second exception.

The prisoner then moved the court to remand the case to the County court for trial, on the ground that the Circuit court had no jurisdiction in the case of a larceny of a horse, the statute imposing the death penalty not being the law of the land. But the court overruled the motion; and the prisoner excepted. This is his third exception.

The prisoner then suggested a diminution of the record, in this, that the said record does not show that the foreman of the grand jury did endorse the said indictment " a true bill," and the name of the said foreman; and prayed the court to grant him a writ of certiorari to bring up the record. But the court refused to award the writ; and the prisoner again excepted. This is his fourth exception.

The prisoner then pleaded " not guilty" to the indictment; and moved the court to quash the venire facias, on the ground that it was not in accordance with the law of the land and the statute in force at the time the prisoner was arrested, committed and indicted. It appears that the venire was issued on the 18th of August 1871, directing the sheriff to summon jurors to the September court for the trial of the prisoner; and it seems to follow correctly the provisions of the act of March 29, 1871, Sess. Acts, 1870-71, p. 357, ch. 262. The court overruled the motion; and the prisoner again excepted. This is his fifth exception.

After the evidence was introduced, the prisoner moved the court to give five instructions to the jury; which were given. And the court further proceeded to instruct them as follows:

6th. If the jury shall believe from the evidence that the horse having been recently stolen, was found in the possession of the prisoner, they are justified in presuming his guilt, unless he shows that he came honestly by it; and his failure to do so, either by positive evidence of the manner in which he came by it, or of his own good character, to rebut that presumption of guilt, is a circumstance which the jury may consider in determining whether the prisoner stole the horse, or received him knowing him to be stolen. To this instruction the prisoner excepted. This is his sixth exception.

The jury found the prisoner guilty of receiving the stolen horse, as charged in the first count of the indictment, and ascertained the term of his imprisonment in the penitentiary to be ten years; and they found him not guilty on the other counts. And the prisoner moved the court for a new trial, on the ground that the verdict was contrary to the law and the evidence. But the court overruled the motion, and sentenced the prisoner in accordance with the verdict. The prisoner again excepted; and the court certified the facts proved upon the record. These are stated in the opinion of the court. Upon the application of the prisoner a writ of error was awarded.

Berkeley, for the prisoner.

The Attorney General, for the Commonwealth.

OPINION

MONCURE, P.

This is a writ of error to a judgment of the Circuit court of Cumberland county; whereby the plaintiff in error was convicted of receiving a stolen horse, knowing it to have been stolen. He was indicted for the offence in the County court of said county. The indictment contained four counts. The first three charged the offence specially, and in different forms, as receiving a stolen horse, knowing it to have been stolen. The fourth simply charged the larceny of a horse, in the common form. This last count would have been sufficient of itself, without the insertion of the others in the indictment. The law declares that " if any person buy or receive from another person, or aid in concealing, any stolen goods or other thing, knowing the same to have been stolen, he shall be deemed guilty of larceny thereof, and may be proceeded against, although the principal offender be not convicted." Code, p. 789, § 20. If a person be indicted for the simple larceny of a thing, and the proof be that it was stolen by some other person, and received by the accused knowing it to have been stolen, the proof will sustain the charge. Because, having received stolen property, knowing it to have been stolen, he is, by law, " " deemed guilty of larceny thereof," and may be prosecuted as if he had himself been the actual thief. Still the pleader may, if he choose, charge him specially as the receiver; and may insert several counts in the indictment charging the offence in both forms, as was done in this case. But as a count for simple larceny would be sustained by the...