State v. Pratt

Wright, J.

i pkac inafiaw'on appear No assignment of error or joinder therein is necessary in a criminal case, under our statute. And, though the defendant does not appear, or may foilto file the transcript, the State may file the samej anq ^ js our <juty to examine the record, and disregarding technical errors and defects, which do not affect the substantial rights of the parties, render such judgment as the law demands. In pursuance of these requirements, we have carefully examined this record, and proceed to state our views of the points made and saved in the court below.

As the testimony is not shown to be all before us, we have no means of knowing whether it did or not warrant the verdict. We can only présume that it did.

2. cbiminai, ceny„‘ It seems that the property stolen consisted of United States currency or “greenbacks” and postal currency, belonging to one Dunn; that Dunn had it in his pocket-book in a side pocket, and that it was either taken therefrom or dropped out and was picked up, as' the State claims, by the defendant. If the defendant picked it up, and with an unlawful intent converted it to his own use, without the knowledge of the owner, it would be as much larceny or a felonious taking as though he had *269 taken it from the pocket./ And these facts, if shown, would sustain an indictment for the general offense of larceny. It is sufficient to jtharge the taking generally, for the statute makes such unlawful appropriation larceny, and punishes the offender accordingly.

The indictment in this case does not charge that the money was taken from the person of Dunn (Rev., § 4240), and as a consequence the State was not required to make any such proof.

3. —proof: genuineness. After the State had proved the loss of the money corresponding with that charged and its value (equivalent to the denominations of the several bills), the pris J1 x oner c0lq¿ 110t ask an acquittal upon the ground that there was no proof of the genuineness of said bills. There was no suggestion or proof, so far as shown by the record, tending to show that the bills were counterfeited. Their amount and value being shown, it will not be presumed that they were not genuine. Whart. Cr. L., 645.

4 pbacTICtjon°toec" evidence. c. eviversation. It seems that there was testimony tending to show that the prisoner, when arrested, was charged with the theft and m&de no reply. To this proof there was no objection at the time; but an instruction was ask.e¿ tpe e-¡yeüt guck testimony “could not be used against him. This was refused, and veiy pr0periy. The objection could not regularly nor properly be raised in this manner nor at this stage of the proceedings. Then, again, while this character of proof is often entitled to but little weight, there is no rule justifying its entire exclusion. Its value is to be determined by all the circumstances, of which the jury are the peculiar judges. One person may be so confused or embarrassed, so completely taken by surprise by the unexpected and sudden arrest and charge, as, though ever so innocent, to act in a manner strongly indicative of guilt. And yet, another man, cool and self-possessed, may be able *270 at once to command the entire situation, and though the most hardened villain, disarm suspicion and impress those around with his innocence. All these and other circumstances are to be considered. But the fact that he was charged and made no reply or denial, may properly be shown, the effect thereof being left to the jury. Wharton, 345, note 6; 1 Greenl. Ev., § 215; State v. Perkins, 3 Hawks, 377 ; 10 Georgia, 511.

6. criminal law: case l-oiiowea. The third instruction given at the request of the State (the exception to which raises the last question meriting our attention) is, in substance, the same as the . . . - . 0ne discussed m the fourth division or the opinion in the case of The State v. Collins, ante. The law as thus stated, was held to have a dangerous tendency, being calculated without explanation to mislead the jury. It was however, expressly announced in that case, that the giving of such instruction would not justify a reversal, if the guilt of the prisoner had been fully and undeniably established. And the reversal of that case was not based upon this misleading instruction, but upon other and more vital errors, as the opinion will most abundantly demonstrate. And in this case, where all of the instructions seem to have fairly presented the law; where the prisoner has apparently had a careful examination of his case upon its merits, and where the testimony, as he presents it in the bill of exceptions, prepared at his own instance, fully warranted the verdict, we cannot consistently, with our duty to look at the substantial rights of the parties, and order such judgment on the record as the law demands, do otherwise than refuse, for this error, to reverse the case. To grant a retrial under such circumstances, is not in our opinion, demanded by the law.

Affirmed.