Henderson v. Commonwealth

1. Burglary—Housebrealdng—Possession of Goods Recently Stolen— Presumption.—The presumption of burglary or housebreaking does not arise from the mere possession of goods recently theretofore stolen from a house that was broken and entered for that purpose. Such possession, however, is a most material circumstance to be considered in connection with other inculpatory circumstances. 2. Housebreaking—Indictment—Ownership of House—Evidence.—Upon an indictment charging the prisoner with breaking and entering the storehouse of A and B, composing the firm of A B, proof of the breaking and entering the storehouse of A B is sufficient to sustain a verdict of guilty, without showing the names of the individuals who composed the firm, or other particulars as to the ownership of the storehouse. 3. Criminal Procedure—Verdict—Certainty.—A verdict in a criminal case is always to be read in connection with the indictment, and if, upon such reading, the meaning of the verdict is certain that is sufficient.

Error to a judgment of the Circuit Court of Rockingham county, rendered Hovember 1, 3899, affirming the judgment of the County Court of said county on a prosecution of the plaintiff in error for housebreaking. The plaintiff in error was indicted for breaking and entering, in the nighttime, “a certain storehouse, the property of P. F. Spitzer and Gr. W. Hess, partners doing business under the firm name of Spitzer & Hess,” with intent to commit larceny. The evidence of P. F. Spitzer, a witness for the Commonwealth, is: “ I am engaged in the stationery business, in the firm of Spitzer & Hess, on south Main street, in the town of Harrison-burg, Ya. My place of business was broken open on the night of the 10th of March; the window light in the transom over the door in the rear' of the building was cut out, and entrance was made by crawling through the sash, froin which the light was taken.” This is all the evidence with reference to the ownership of the building. It was shown that Spitzer & Hess lost about $75 in money, and several checks; that there were about six five-dollar bills, three tens, and one two-dollar bill, and about two hundred pennies taken; that plaintiff in error was seen near the storehouse about twelve o’clock that night; that he undertook to “ beat his way” to Staunton on a freight train next morning, but was put off; that he stated to the train men that he was from Winchester; that the officers sent to arrest him did not find him on their way to Staunton, but, returning by a freight train, saw him on the side of the track, and when the train was stopped he ran, and was pursued and arrested; that when arrested he had on his person, amongst other things, a piece of candle which had been lighted, a pocket-knife, “with the point broken off the long blade,” and a pocket-book containing a five-dollar bill and some silver, and that there were some slight scratches or punctures on several of his fingers. There was found “on a ledge above the door, just below the broken glass,” the point of a knife blade which had the appearance of having been recently broken off. A witness for the Commonwealth testified that the knife blade had been recently ground; that, upon examination under a microscope, “the grain on the broken point corresponded to the grain of the metal in the knife blade. Tbe bevel on the back of tbe knife fits exactly to tbe bevel here on this broken point found by me. This point is the point of this knife.” He further stated: “ There is only one knife that this point can fit * * * .• If you were to break twenty thousand knife points no two would be alike.” While in jail, the plaintiff in error attempted, along with other prisoners, to effect his escape. It further appeared that the plaintiff in error gave to an officer voluntarily the following account of the money he had in his possession when arrested: “ He said he met Turner Green in front of Taliaferro’s store on Thursday night (the night the store was broken open), at eleven o’clock, and Turner said, ' I made a good haul to-night,’ and the prisoner said, ' Whereabouts?’ and Turner Green said, 'At Spitzer & Hess’ store.’ The prisoner said, ' How much did you get?’ Turner Green said, About $80.’ Jim said, 'If you don’t give me some I’ll tell on you.’ Jim said he gave him $7.50. That was all he said on the subject.” After the evidence was all in, the plaintiff in error asked the court to instruct the jury as follows: “(1.) The court instructs the jury that the prisoner is presumed to be innocent until he is proven to be guilty, beyond every reasonable doubt, by the Oommonwealth, and that the burden of proving the guilt of the accused rests upon the Oommonwealth; and that to warrant a conviction of any offence, every fact necessary to establish his guilt, must be proven beyond every reasonable doubt by the Oommonwealth, and especially is this true where, as in this case, a conviction is sought upon circumstantial evidence alone, which is always to be acted on with the xxtmost caxxtion. Prather's Case, 85 Va. 125-6. “(2.) The coxxrt further instructs the jury that circumstances of suspicion, no matter how grave or strong, are not proof or evidence of guilt, and that the accused must be found not guilty unless the fact of his guilt is proven beyond every reasonable doubt to the actual exclusion of every reasonable hypothesis of innocence. “(3.) The court further instructs the jury that any fact sought to be proven by the prisoner needs only to be established by proof that would be satisfactory to establish such a fact in a civil trial, and the prisoner is not bound to prove the same beyond a reasonable doubt, but only by a preponderance of evidence. “(4.) The court further instructs the jury that the possession of money, by the prisoner, when arrested, cannot be considered by the jury in this case as proof, or tending to prove, that he stole the same from the firm of Spitzer & Hess on the night of March 10, 1899. “(5.) The court further instructs the jury that in the absence of proof, beyond every reasonable doubt, by the Commonwealth that the money found in the possession of the prisoner, when arrested, was the same money stolen from the firm of Spitzer & Hess, on the 10th of March, 1899, such possession is no proof against the accused that he committed the crime charged in the indictment. “(6.) The court further instructs the jury that although they may believe, from the evidence, that the money found in the possession of the prisoner is the same money stolen from the storeroom of Spitzer & Hess on March 10, 1899, yet such possession alone, is not to be considered as any proof, or tending to prove the accused guilty of the offence charged in the indictment.” “ To the granting of the third, fourth and sixth of which instructions the Commonwealth’s attorney objected, and the court sustained said objection, and refused to give said third, fourth and sixth instructions, or any of them, but gave the first instruction prayed for by the prisoner; and the court then, upon its own motion, refused to give the second and fifth instructions prayed for by the prisoner, and in lieu of said second, third, fourth, fifth and sixth instructions prayed for by the prisoner, upon its own motion, gave .the following instructions: “Instruction Given by the Court in Lieu of Second Instruction Prayed for by the Prisoner. “ The court further instructs the jury that circumstances of suspicion, no matter how grave or strong, are not proof of guilt, and that the accused must be found not guilty unless the fact of his guilt is proven beyond every reasonable doubt to the actual exclusion of every reasonable hypothesis of his innocence consistent with the fact proven. “Instruction Given by the Court in Lieu of Instruction No. S, Offered by Prisoner, and Not Given. “ The court further instructs the jury that any fact or facts sufficient to produce a reasonable doubt as to the guilt of the prisoner need only to be established by proof that would be satisfactory to establish such fact or facts in a civil trial, and the prisoner is not bound to prove the same beyond a reasonable doubt, but only by a preponderance of evidence. “Instruction Given by the Court in Lieu of Instructions Nos. 4, 5 and 6, Offered by Prisoner, and Not Given. “ The court further instructs the jury that the possession of money by the prisoner, when arrested, cannot be considered as sufficient proof that he stole the same from the firm of Spitzer & Hess, or that he committed the crime charged in the indictment, but if the jury believe from the evidence that the prisoner did have money on his.person when arrested, that is a fact which the jury have a right to consider in connection with all the other evidence adduced before them, and it is for the jury, upon consideration of the whole .of the evidence introduced by the Commonwealth and for the prisoner, to say whether or not the prisoner is guilty of the crime with which he is charged beyond any reasonable doubt. “ To which action of the court in sustaining the objection of the Commonwealth’s attorney to the third, fourth and sixth instructions, and refusing to give the same or any of them, and to the action of the court in refusing, upon its own motion, to give the second and fifth instruction or either of them, as prayed for by the prisoner, and to the court’s action, upon its own motion, in giving the aforesaid instructions in lieu of the second, third, fourth, fifth and sixth instructions prayed for by the prisoner, the prisoner, by counsel, excepts, and prays that this, his third bill of exception, may be signed, sealed and enrolled, and made part of the record in this cause, which is accordingly done.”