World v. State

Construction of the Act of 1864, ch. 38, for the Punishment of Common Thieves or Pichpochets — What Evidence admissible on an Indictment for being a Common Thief — Limitation to prosecutions under this Act. The Act of 1864, ch. 38, provides, that “any evidence of facts or reputation proving that” — a person indicted under that Act for being a common thief —“ is habitually and by practice a thief, shall be sufficient for Ms conviction, if satisfactorily establishing the fact.” To justify the conviction of a party of the offence created by the Act, there must be proof of either facts or reputation, sufficient to satisfy the jury that the party accused is by practice and habit a thief. The offence is a misdemeanor, and it must be prosecuted within one year from the time of its commission. It is necessary to justify a conviction that the proof should establish the fact, that the accused was a “common thief” within one year before the prosecution was begun. The record of the conviction of the accused of the larceny of a watch, within a year before the prosecution was begun, is a link in the chain of evidence admissible per sc, as tending to prove the issue; its legal effect is a question for the jury to determine. Evidence of the reputation of the accused commencing more than a year before the indictment was found, is admissible. Reputation is but a single fact, and the whole may be given in evidence; but such evidence would not of itself justify a conviction unless followed up with proof that such reputation continued, and was borne by the accused within a year before the indictment was found. Evidence of reputation and character is admissible, as character and reputation are synonymous terms. The record of the conviction of the accused for winning a watch by a fraudulent trick at .cards, is not legal and admissible evidence on an indictment for being a common thief, even if the conviction had taken place within the year. The Act of 1864, ch. 38, being a criminal law, must be strictly construed.

Appeal from the Criminal Court of Baltimore. The facts of the case are stated in the opinion of the Court. The Court below erred in allowing the larceny of a watch to be given in evidence. The point of inquiry under the indictment is, whether or not the appellant is a “common thief.” The evidence authorized by the statute creating the offence is, “any evidence of facts or reputation proving that such person is habitually and by practice a thief.” The fact that a person has stolen, affords no reasonable inference that he makes a habit and practice of stealing; a single act of larceny should not be admitted to prove a habit and practice of stealing. ' This offence, in the respect named, is analogous to the offence of being a “common barrator,” or the statutory offence, under the law of some States, of being a “common drunkard.” 2 Bish. Cr. L., (5th Ed.,) sec. 65; Bish. Stat. Cr., sec. 970. It is no answer to the foregoing proposition to say that, while an act of larceny does not tend to prove a habit and practice of stealing, it yet is joroper evidence to go to the jury as a relevant fact, to be considered in connection with other testimony in arriving at a verdict. There was error in admitting in evidence the fact of the conviction of the appellant on the charge of winning a watch by a fraudulent trick at gaming. The fact that a person has been guilty of a fraudulent trick at cards, is no evidence of his being a thief In the legal acceptation of the word, thief means “one who has been guilty larceny or theft.” (Bouv. L. D.) Whenever evidence of other criminal acts than that charged in the indictment is allowed hy the authorities, it is only in those cases where such evidence tends to prove the scienter; hut such evidence is never admissible to prove the quo animo. 3 Russ, on Cr., (9th Am. Ed.,) 278; Shaffner vs. Comm, 12 Pa. St., 65; Walker’s Case, 1 Leigh, (Va.,) 578. In allowing a conviction to be given in evidence which took place on 20th October, 1815; and in allowing a witness to speak as to the character and reputation borne hy the appellant at a time more than a year prior to the beginning of the prosecution in this case, the Court below allowed evidence inadmissible under the Statute of Limitations. Reputation, it is true, is a matter of evidence, which, from its nature, cannot well he limited to a particular period of time; and if a witness speaks as to the prisoner’s reputation during the period allowed hy the Statute of Limitations for the prosecution of the offence, and that reputation is one which had dated or originated from a period of time prior to that allowed hy law, the reputation during the whole period forms hut one fact, and the whole may well he given in evidence. Where a witness professes ignorance of the reputation during the period allowed for the prosecution, he cannot he allowed to testify to the reputation before that period, as an isolated fact. Reputation prior to the time within which the prosecution must he begun, can only he allowed in evidence in cases where it forms a part of certain entire evidence, of which reputation, subsequent to such period, constitutes another portion; and the two. are inseparable, constituting one and the same reputation extending over two (consecutive) periods of time. Reputation under this Act is a fact, constituting proof of the guilt of the prisoner. It must be treated like other facts constituting an element of guilt, and not like evidence of reputation, to impeach the credibility of a witness. The Statute of Limitations in criminal cases, is not a rule of pleading as in civil cases, hut a rule of evidence. “The statute is not a statute of process, to he scantily and grudgingly applied, hut an amnesty, declaring that after a certain time oblivion shall be cast over the offence.” Code, Art. 51, sec. 10; 1 Whart. Cr. L., (7th Ed.,) secs. 444-5; R. vs. Phillips, Russ. & R., 369 ; U. S. vs. Smith, 4 Day, 121; Comm. vs. Ruffner, 28 Pa. St., 259. The statute simply speaks of evidence of reputation. The Court below allowed evidence of reputation and character. Even where character is in issue, the question to be asked the witness is, what is the reputation, not what is the character of such a person? 1 Taylor Ev., sec. 49; 2 Ibid, sec. 1324. In a case like this, “where the offence consists of a series of acts, which, taken together, constitutes a criminal practice or occupation, time enters into the essence of the offence, fixes its identity, and is a material element in its description.” The proof, therefore, should have been confined to acts done within the time charged in the indictment, apart from the Statute of Limitations. Comm. vs. Foley, 99 Mass., 499; Comm. vs. Adams, 4 Gray, 28; Comm. vs. Elwell, 1 Gray, 463 ; Comm. vs. Briggs, 11 Met., 573. The record of the judgment of conviction of the appellant in the Criminal Court of Baltimore, on October 20th, 1875, for winning a watch by a fraudulent trick at gaming, though offered in evidence in the lower Court, is not set forth as it should have been in the record before this Court. In the absence of such record, it must be assumed that the Court below acted properly. Burtles vs. State, 4 Md., 278; McTavish vs. Carroll, 17 Md., 7; Scott vs. Scott, 17 Md., 90; Hollowell & Co. vs. Miller, 17 Md., 308. We must, therefore, conclude the owner of the watch was induced to part with its possession while still retaining the right of property in it; and that, therefore, the taking amounted to larceny. 2 Russell on Crimes, (9th Am. Ed.,) 200, 201. The record of the judgment of conviction of the appellant in the same Court, on March 8th, 1877, for the larceny •of a silver watch, is not set forth as it ought to have heen in this record. In the absence of such record, it must he assumed that the Court below acted properly. The judgment entered in any cause, though pronounced or awarded hy the Court, is not its determination or sentence, hut is the determination and sentence of the law. It is the conclusion which naturally and regularly follows from the premises of law and fact; and it rests upon every preceding part of the-record, which is a necessary premise of law or fact to the conclusion reached hy such judgment. The records of the judgments of the Criminal Court of Baltimore, in the cases referred to in the offer of evidence made hy the State, must, therefore, he assumed to have heen full and sufficient records of those premises of law and fact, without which such judgments had no existence. The testimony of the police officer was evidence of a reputation that the traverser was an habitual thief at a period covered hy the indictment; and was evidence upon which the jury could rest its verdict. The Act of 1864, oh. 38, does not make it necessary that evidence should he offered which ought to satisfy the general judgment. The Act simply provides that any evidence, either of facts or reputation, proving that a person is, habitually and hy practice, a thief or pickpocket, ■shall he sufficient for his conviction, if it satisfactorily establishes the fact to the Court or jury hy which such •accused person is tried. In this particular case, the proof satisfied the jury. There was no motion made for a new trial. The Court did not set aside the verdict, and was, it must he presumed, also satisfied that the evidence established the fact.