Thomasson v. State , 22 Ga. 499 ( 1857 )

By the Court.

McDonald, J.

delivering the opinion.

There was a new trial moved for, in this case, on ten grounds. In the motion all the exceptions to the rulings and decisions of the Court during the progress of the trial, are embraced. The Court overruled the motion and this decision is excepted to, and our judgment on that exception will dispose of the several errors assigned.

[1.] After a jury was empannelled and sworn, and the first witness 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.” The record does not show a demurrer, but the general issue only, as the pleadings of the defendant In England, the defendant seldom demurs to a bill of indictment, because he may have the same advantage upon the plea of not guilty or upon motion in arrest of judgment, as well as for other reasons. Arch. Crim. P. 60. .He may move to quash the indictment in the English Courts, if the Court have no jurisdiction, or if the facts charged do not constitute an offence punishable at law. These are grounds of demurrer. Motions to quash are merely demurrers to the bill of indictment, and allowed in England for the reason, that they do not there generally demur to bills of indictments. In this State, if the prisoner on being arraigned, demur to the indictment, the demurrer must be made in writing. Paragraph 304 Penal Code. Cobb 834. If the demurrer be decided against him, he may plead and rely on the general issue. The cause had been submitted to the jury before the motion was made, and before plea pleaded, and it came too late. The object of the Legislature was intended to prevent the acquittal of parties indicted on mere technical grounds. In England, the Courts will seldom quash an indictment when the motion is made by the defendant. Arch. Cr. Pl. 40.

[2.] Joseph W. Varner had testified t.) certain facts. A witness was introduced, the object of whose testimony it was, amongst other things, to attack his credit, who testified that the plaintiff, Thomasson, had applied to aman in bed to loan him some money. He understood the man to say, “take it,” or something like it. He did not know whether it was Varner or not, it was the man in the bed. It had been proven that Varner slept in that room. Varner was called and asked the following questions:

1. Did Thomasson that evening ask you for the loan of money?

2. Did you give him any ?

3. Did he take money out of your pocket book by your consent?

An examination of this sort is sometimes admissible. 1. Greenleaf §435. Very great discretion must necessarily be left to the presiding Judge, in the examination of witnesses, and unless he use this discretion in violation of a principle of law, we cannot control him. 4. Wend, 247. The questions in this case were intended to contradict a.witness introduced for the purpose mentioned, and not to inculpate the prisoner. It was to re-affirm what the witness had already sworn, and in respect to which the witness Gibbons had given evidence in opposition to his statement. He had already testified that he had never loaned the prisoner money at any time. The presiding Judge committed no error in this.

[3.] It is insisted that the Court erred in charging the jury, as set forth in the 3d, 4th, and 5th grounds of the motion for a new trial. This charge does not come to us in a manner to enable us to decide upon it. The presiding Judge does not admit the existence of the grounds as taken, and says there is a difference of recollection as to the words used in the charge. We will remark, however, that, there was proof that the bank notes offered in evidence, were the bank notes of the Méchanics Bank, and of the value of their several denominations, and upon this they were tendered and received in evidence without further objection, which amounted to a waiver of further evidence of their genuineness.

[4.] The counsel for defendant requested the Court to charge the jury, that if nothing but bank bills were stolen, the defendant must be acquitted of the offence of larceny from the person, the offence being simple larceny. At common law, bank notes being mere evidences of debt, were held to be not such goods and chattels of which larceny might be committed. Cobb 793. Our statute however, declares, that the taking and carrying away a bank bill belonging to another, with intent to steal the same, shall be simple larceny. Bank notes, then, are, by statute, made such goods and chattels whereof larceny may be committed. Larceny from the person is a higher grade of offence than simple larceny, because more daring, and it might possibly lead to the commission of other crimes. If an hundred dollars be stolen from any place, other than from the person or a house, the offender may be punished as low as one year in the Penitentiary ; while if the same sum be stolen from the person or a house, he cannot be punished by less than two years imprisonment in the Penitentiary. We hold, therefore, that bank notes may be the subject of larceny from the person; that the charge as requested, ought not to have been given by the Court to the jury.

[5.] The finding of the jury we think was warranted by the evidence under the charge of the Court as stated in the seventh ground for a new trial. The money arose from the sale of cotton belonging to himself and brother; he advanced money to his brother, and he claimed the money as his own. His brother was a minor and he was his guardian. The property in bank notes was properly laid in the prosecutor. The title was in him if he was guardian.

[6.] The jury, in this State, are judges of both the law and the facts in criminal cases, and unless their finding be clearly contrary to law and evidence, which must be presumed to arise from mistake or a misapprehension of one or the other, the Court ought not to disturb it. We think, without recapitulating the evidence, however, that if the jury had found a different verdict, it would have been by a misapplication of the rules of law in regard to the evidence and its effect, given them in charge by the Court as set forth in the eighth and ninth grounds for a new trial.

We think that the law, the evidence and the preponderance of evidence sustain the verdict.

Judgment affirmed.