Gravely v. Commonwealth , 86 Va. 396 ( 1889 )

Lewis, P.,

delivered the opinion of the court.

The single question we have to determine is, whether there was error in overruling the prisoner’s motion for a new trial. And in determining this question we must be governed by the rule, so often announced by this court, that where the evidence consists of circumstances or presumptions, a new trial, on the ground that the verdict is contrary to the evidence, ought to be granted only in a ease of a plain deviation, since to do otherwise would be to assume the province oí the jury. It ought not to be granted merely because the court, if on the jury, would have given a different verdict, but the verdict must be plainly wrong to justify the court in setting it aside; and this restriction, it is needless to say, applies a fortiori to an appellate court. Read’s case, 22 Gratt., 924; Finchim’s case, 83 Va., 689.

Viewed in this light, the verdict must stand.

It is a general rule of the common law, with regard to the evidence in eases of larceny, that the possession of goods recently stolen is prima facie evidence of guilt, and throws upon the accused the burden of accounting for that possession. This rule, it is true, has never been held by this court to apply with the same effect in eases of burglary or house-breaking, and the decided -weight of authority is that it does not. Still, where goods have been obtained by means of a burglary or housebreaking, the fact of such possession is a most material circumstance to be considered by the jury, and where, in addition to such possession, other inculpatory circumstances are proved, such, for example, as the refusal of the accused to give any account, or his giving a false account, of how he came by the goods, such proof will warrant a conviction. In other words, to use the language of the books, there should be some evidence of guilty conduct, besides the bare possession of the stolen property, before the presumption of burglary or housebreaking is superadded to that of the larceny, but extrinsic mechanical indications may constitute sucli additional evidence. 1 Whart. Crim. Law (9th ed.), sec. 813; Davis v. People, 1 Park. Cr. Cas., 447; State v. Reid, 20 Iowa, 413; People v. Beaver, 49 Cal., 57; People v. Gordon, 40 Mich., 716; Stuart v. People, 42 Id., 255; Neubrandt v. State, 53 Wis., 89; Walker’s case, 28 Gratt., 969; Taliaferro’s case, 77 Va., 411.

In Commonwealth v. McGorty, 114 Mass., 299, Avhieh was a prosecution for burglary, an instruction to the jury was approved, which was in these words :

“ Possession of stolen property immediately after it has been stolen, if an unsatisfactory account is given as to its possession, affords presumptive evidence of guilt. The presumption is not conclusive, but is to be dealt with by the jury alone as a mere inference of fact. If the larceny was effected by a breaking and entering, and immediately after the breaking and entering, the property stolen is found in the possession of persons who give improbable and unsatisfactory accounts of how they come in possession of it, the possession affords presumptive evidence of their guilt. The circumstances under which they are found in possession of the property—the time, the place, their conduct, their account of it, are all matters for the consideration of the jury.”

Applying this rule to the present case, we are of opinion that although there was not strict proof of the identity of the stolen flour, yet that in view of the nature of the article, the recency of the possession, and all the surrounding circumstances, the evidence was sufficient. At all events, it was not plainly insufficient. “ Unless the possession be recent,” says Starkie, “ it is necessary to give strict proof of the identity of the goods, which is not so requisite where the possession is very recent.” 2 Stark. Ev., 841.

And in 2 Russ, on Crimes, at p. 178, the learned author, after laying down the rule that where all that can be proved concerning property found in the possession of a supposed thief, is that it is of the same kind as that which has been lost, this will not in general be deemed sufficient evidence of a larceny, and that some proof of identity will be required, says : “ But where the fact is very recent, and the property consists of articles, the identity of which is not capable of strict proof, from the nature of them, the conclusion may be drawn that the property is the same, unless the prisoner can prove the contrary.”

Thus, he says, if a man be found coming out of another’s barn, and upon his being searched, corn be found upon him, of the same kind as that in the barn, the evidence of guilt will be pregnant; and cases have frequently occurred where persons employed in carrying sugar and other articles from ships and wharves have, been convicted of larceny, upon evidence that they were detected with property of the same kind upon them, recently upon coming from such places, although the identity of the property, as belonging to such and such persons, could no otherwise be proved. See, also, 2 East, P. C., 657.

Another writer of acknowledged authority, in treating of the same subject, uses this language: “ It is not necessary that the identity of stolen property should be invariably established by positive evidence. In many such cases identification is impracticable, and-yet the circumstances may render it impossible to doubt the identity of the property, or to account for the possession of it by the accused upon any reasonable hypothesis consistent with his innocence.” Wills, Circum. Ev., 1-30.

This principle, without any undue extension, we think, may be properly applied to the present case; for, obviously, what is sufficient evidence of identity of stolen goods is, like what is recent possession, a question to be determined upon the circumstances of each particular case. 3 Greenl. Ev., sec. 32; Steph. Big., C. L., Art. 308. If the mere finding of an article upon a person, when coming from a place where property of the same kind is stored, is, unexplained, sufficient evidence of guilt, there is no reason why a conviction may not be sustained where property, the identity of which, from its nature, is not capable of strict proof, has been stolen, and articles of the same kind are shortly thereafter found in the possession of the accused, who had the opportunity to commit the larceny, and who was probably present when it was committed, and where all the circumstances are such as render it morally certain that he came by the goods feloniously. In such a case, why may not the identity of the property be inferred as well as in the class of cases above mentioned ? Of course, before the jury can rightly convict in any case, they must be satisfied, beyond a reasonable doubt, of the identity of the property, and if this fundamental rule be attended to, a wrong conclusion will probably seldom, if ever, be reached.

We think, therefore, that the evidence of the identity of a part, at least, of the stolen property in the present case is sufficient. And the presumption arising from the prisoner’s recent possession of that part is strengthened by the attendant circumstances; that is to say, his false account of how he came by the flour; the probability that he was present when the felony was committed; and his conduct afterwards, when the search for the stolen property was being made; all these are circumstances, accompanying the recent possession of the fruits of the crime, from which the jury were warranted in drawing the conclusion that he not only stole the flour, but that he made use of the means by which access to it was obtained.

The evidence, moreover, of his principal witness at the trial, which was contradictory of his own previous account of the way in which the flour came into his possession, was of itself sufficient to create a presumption against him. The statement of the witness that thirty or forty pounds of good flour were tendered in return for the use of the prisoner’s boots for a night, is, to say the least, improbable. Indeed, the evidence of the witness was so improbable throughout, that the jury were warranted in disbelieving it, as they evidently did.

The judgment is affirmed.

Judgment aeeirmed.