Thomasson v. State

[1.] A motion to quasli an indictment, is a demurrer to the indictment, and must be in writing on the arraignment and before plea pleaded. [2.] A witness who has testified in a cause and his evidence is impeached by testimony in contradiction of his statement, may be recalled, and leading questions may be asked him affirmatory of what he has already testified. [3.] This Court will not pass its judgment on an exception that the presiding Judge in the Court below does not admit to be correctly stated. [4.] Bank notes are the subject of larceny from the person. [5.] Money in the hands of a guardian and stolen from him, may be laid in the indictment to be property of the guardian. He has a special properly in it. [6.] The jury are judges of law and fact, in this State, and their verdict will not be disturbed as being contrary to law and evidence, unless it appear so palpably as to raise the presumption that their finding was the effect of a mistake or misapprehension of one or the other.

Indictment for larceny from the person, in Richmond Superior Court. Tried before Judge Holt, at April Term, 1857 The defendant, Hensley J. Thomasson was indicted for stealing from the person of Joseph W. Varner a large amount of the Bills of the Mechanics Bank of Augusta. The of-fence was charged to have been committed in a room occupied by Varner at the United States Hotel in the city of Augusta, on the night of the 2Oth February, 1856. After a jury were impannelled and sworn, and the first witness on the part of the State called to the stand, the defendant’s counsel moved to quash the indictment, because the bills alleged to have been stolen were not therein sufficiently described, and because there was no such bank as the Mechanics Bank of Augusta, the corporate name being “ The Mechanics Bank.” In the further progress of the cause, after the testimony on the part of the State had been dosed, and the witness Thomas Gibbins, had testified on the part of the prisoner, the following questions were put to the witness’ Joseph W. Varner, by the State’s counsel, the said Joseph W. Varner, having been recalled by the Attorney General as a witness on the part of the State, which questions were objected to at the time, as leading by prisoner’s counsel, to. wit: “ Did Thomasson ask you that eveningfor the loan of money ?” “ Did you give him any ?” “ Did he take any money out of your pocket book by your consent ?” After the testimony on both sides had closed, and the argument of counsel concluded, the prisoner’s counsel requested the Court in writing to charge the jury as follows: “ That there must be proof of the genuineness of the bank bills, or the defendant must be acquitted,” which charge the Court failed and refused to give in the language requested. Prisoner’s counsel further requested the Court in writing to charge the jury as follows: “That the defendant must be acquitted of the offence charged in the indictment (larceny from the person,) if the jury find that nothing but bank bills were stolen, that being simple larceny, a- different offence — the first punishable by imprisonment in the penitentiary from two to five years, the second from one to four years,” which charge the Court declined and refused to give. The Court modified the first aforesaid request to charge^ and used language in said modification in substance as follows; “That defendant’s counsel had raised no question as to the genuineness of these bills : that the fact was proven that these were the bills of the Mechanics Bank, and that they were of the value which their denominations called for, and that, if the defendant’s counsel had made any proof that these bills were not genuine, it would then have become necessary that the State’s counsel should have met it with counter proof.” To all which refusals to charge, modification of charge as requested, and charge as given, the prisoner then excepted and now excepts. The. Court did charge the jury as requested by prisoner’s -counsel, in substance as follows, that “unless they found Joseph W. Varner was the owner of the bank bills, alleged to have been stolen, they must acquit, and such must be their verdict, if they found that the bills were owned by Varner jointly with another: and that, in cases of circumstantial evidence, the hypothesis of the defendant’s guilt must be the only rational mode of accounting for all the facts, and that every other hypothesis must be excluded from their minds before they could convict the accused. The jury returned a verdict of guilty, whereupon the prisoner moved the Court for a new trial upon the following grounds: 1st. Because the Court overruled the motion of defendant’s counsel, to quash the bill of indictment, because the bills, alleged to have been stolen, were not therein sufficiently described, and because there was no such bank as “The Mechanics Bank of Augusta,” the coporate name being “The Mechanics Bank.” 2d. Because the Court permitted the following questions to be put to the witness, Joseph W. Varner, by the State’s counsel upon direct examination, defendant’s counsel at the time objecting to each and all of them as leading, to. wit: “Did Thomasson ask you that evening for the loan of money ?” “Did you give him any ?” “ Did he take any money out of your pocket book by your consent?” 3rd. Because, when defendant’s counsel requested the Court, in writing, to charge as follows: “ That there must be proof of the genuineness of the bank bills or the defendant' must be acquitted.” ******* 4th. Because the Court modified said request to charge, in substance as follows; “ that defendant’s counsel had raised no question as to the genuineness of these bills; that the fact was proven that these were the bills of the Mechanics Bank, and that'they were of the value, which their denominations called for: and that if defendant’s counsel had made any proof that these bills were not genuine, it would then have been necessary that the State’s counsel should have met it with counter proof.” 5th. Because the Court stated in his charge to the jury, that the fact was proven, that these were the bills of the Mechanics Bank and that they were of value. 6th. Because the Court declined to charge the jury, as requested in writing by defendant’s counsel, as follows: “That the defendant must be acquitted of the offence charged in the indictment, (larceny from the person,) if the jury find that nothing but bank bills were stolen, that being simple larceny, a different offence, the first, punishable by imprisonment in the Penitentiary, from two to five years; the second, from one to four years. 7th. Because the jury found a verdict of conviction contrary to the law and the charge of the Court, in this, that the Court charged the jury that, unless they found Joseph W. Varner was the owner of the bank bills alleged to have been stolen, they must acquit, and such must be their verdict, if they found lhat the bills were owned by Varner jointly with another, the evidence showing that the ownership was jointly in Joseph W. Varner and Felix Varner. 8th. Because the jury failed to make a proper application of that principle’ of law, given them in charge by the Court, that, in cases of circumstantial evidence, the hypothesis of the defendant’s guilt must be the only rational mode of accounting for all the facts, and that every other hypothesis must be excluded from their minds before they could convict the accused. 9th. Because the jury disregarded the law, which was given them in charge by the Court, that, in all criminal cases, the verdict must be the result of moral certainty, and not a balance of probabilities. 10th. Because the verdict was contrary to law, evidence and the preponderance of evidence. After hearing argument, the Court refused a new trial. Whereupon the prisoner excepted, and now excepts to the said ruling and decision, and alleges error, upon all the grounds taken in the motion. Thereupon, the Court passed judgment upon the prisoner, sentencing him to hard labor in the Penitentiary for the term of five years. To which judgment and sentence the prisoner excepts and alleges error therein.