Oliver v. The State
Source: Howard, Volney E. "Reports of Cases Argued and Determined in the High Court of Errors and Appeals of the State of Mississippi" Vol. V, Containing the Cases for December Term, 1840, and January Term, 1841. Cincinatti: E. Morgan & Company, 1841; pages 14 - 19
The time of the commission of an offence laid in the indictment is not material, and does not confine the proof within the limits of that period; the indictment will be satisfied by proof of the offence at any anterior day.
The act of 1839, for the punishment of crimes, declares that it is not to affect any offences subject to punishment under the act of 1822, or any former law.
The evidence if to be reviewed by the appellate court, must be certified by the judge below.
When reference is made to a paper by a particular mark, as being a part of the bill of exceptions, the reference must clearly appear, or the court will not presume the paper in the record to be the one referred to by the bill.
Testimony taken before the committing magistrate, is not evidence on the trial of the prisoner.
Where the prisoner was found guilty on a charge of larceny, and the court below pronounced a wrong sentence, the appellate court reversed the sentence and pronounced judgment in conformity with the statute.
IN error from the Circuit Court of the county of Marshall.
G. W. Oliver was indicted and tried for larceny at the September term of the Circuit Court for Marshall county, 1840: Hon. F. W. Huling, presiding.
The indictment contained four counts. The first count charged that the prisoner did steal, &c. "one promissory note on McEwen, King, & Company, for the payment of fifty dollars." The second was for stealing "five promissory notes on the Mississippi and Alabama Rail Road Company; one of said promissory notes for the payment of twenty-five dollars and of the value of twenty-five dollars, one of said promissory notes for the payment of twenty dollars," &c. The other counts, in like matter, charged the stealing of promissory notes, but did not state that they were promissory notes for the payment of money. All the notes were charged to be the property of Gideon Blithe and Benjamin Blithe. The entry, with respect to the finding of the indictment was, "The grand jury came into court under the care of their officer and returned a bill of indictment against George W. Oliver for larceny, endorsed by their foreman, "a true bill."
The offence was charged in the indictment to have been committed 1st September, 1839.
On the trial, the prisoner by his counsel moved the court to exclude the evidence given on the part of the prosecution, because it appeared from the bill of indictment filed in this cause against the prisoner, was one for an offence against an act entitled "an act to amend the acts of this state concerning crimes and punishments and the penitentiary, approved Feb. 15, 1839." Whereas the evidence went to prove if any offence was committed, it was one against an act of the legislature of the state of Mississippi, passed the 14th day of June, 1822, entitled "an act for the punishment of crimes and misdemeanors." This motion was overruled by the court, "because it appeared from record in the case, that this prosecution was pending by warrant and commitment at the time of the passage and going into effect of the act of 1839."
After verdict of guilty, a new trial was moved for.
1st. Because the charge in the indictment was of an offence a1ledged to have been committed against the act of 1839, and the evidence was of an offence, if any, against the act of 1822.
2nd. That the act of 1839, changing the punishment of larceny of promissory notes, operated as a statute pardon of offences against the act of 1822.
3rd. The finding of the jury was against law and evidence. This motion was overruled.
It was then moved in arrest of judgment that there was no law then in force which authorized a judgment against the prisoner, from the facts set forth in the record. Motion overruled, and judgment that prisoner be whipped and confined in the pillory, &c. A bill of exceptions stated that the evidence in the cause is made part thereof, marked B. The record contained no evidence shown to be thus marked; but contained the evidence of many witnesses, said in the record to be "evidence taken before magistrate." It was argued, that to save trouble of again writing it out, this paper was probably agreed to be copied as containing the evidence given on the trial, and that the court should regard it as the evidence referred to in the bill of exceptions. It was contended that the evidence did not support the case charged in the indictment, but tended to prove a larceny in October, 1838, of notes, the property of Gideon Blithe, and not of Gideon Blythe, and Benjamin Blythe.
Mayes for plaintiff in error.
Upon the motion to exclude the evidence and for a new trial, it is insisted that the indictment being under the act of 1839, (for the offence is charged to have been committed when that act was in force, and the indictment concludes against the form of the statute in such case made and provided,) no evidence should have been received of an offence committed under a former act, and before that then in force, passed. The inadmissibility of this is apparent from the fact that upon examining the facts charged and found, and applying the law to the record, the judgment would be for the penitentiary. Yet the judge, governing himself by the evidence, and traveling out of the finding, has pronounced judgment of whipping and pillory.
It is fatal to the verdict, and it should have been set aside as against evidence, that the indictment charges that the notes were the property of Gideon Blithe and Benjamin Blithe, and the evidence is, that they were notes of Gideon, and not that they belonged to Gideon and Benjamin. The point as to statute pardon, will be submitted with argument.
Clifton on the same side.
Collins, Attorney General, contra.
1st. If it appears from the record, that the grand jury was sworn, it will be presumed they were "then and there" sworn, the words then and there need not appear. 2 Howard's Rep. 455. Woodsides v. The State, 1 Yerger--
2nd. It us sufficient to describe the notes stolen, as promissory notes for the payment of money, or so many dollars, on the bank which issued them, Rev. Code, 299, sec. 20. 1 Howard, 265. 2 Virg. Laws, 153.
3rd. When the indictment is returned into court by the authority of the whole grand jury, a "true bill," it is sufficient though it should not be properly endorsed by the foreman. Friar v. The State. 3 Howard, 422.
4th. The punishment of grand larceny, changed by act of 1839, page 140, sec. 63.
Mr. Justice Trotter delivered the opinion of the court.
The plaintiff in error was indicted in the circuit court of the county of Marshall for larceny. The indictment contains four counts. The first charges the stealing, &c. of one promissory note on McEwen, King & Co. for the payment of fifty dollars. The second is for stealing five promissory notes on the Mississippi and Alabama Rail Road Company, going on to describe their denominations and value. The other counts, in like manner, charge the stealing of promissory notes, but do not state that they were promissory notes for the payment of money. All the notes are alledged to be the property of Gideon Blythe and Benjamin Blythe. The jury found a verdict of guilty against the prisoner and assessed the value of the property at sixty dollars. The offence is laid in each count of the indictment to have been committed on the 1st day of September, 1839. Two bills of exceptions were taken, and appear upon the record. One of these bills recites that the prisoner moved the court to exclude from the jury all the evidence on the part of the prosecution, on the ground which is recited, that it appeared from this evidence that the offence was committed anterior to the time when the act of 1839, upon the subject of crimes and punishments and the penitentiary went into operation. The court refused to allow the motion. The prisoner then moved for a new trial and in arrest of judgment on the grounds contained in the first bill of exceptions, and also because it was alledged the act of 1839 which changed the law of 1822, operated as a pardon of the offence. The court overruled both motions.
Several errors have been assigned, but it is not deemed necessary to notice any except the following, the others having been disposed of in the opinion given by this court during the present term in the case of Greeson v. The State.
1st. The court erred it is said in refusing to exclude the evidence on the ground stated in the bill of exceptions. 2d. The court erred in overruling the motion in arrest of judgment; and, 3d. In not deciding that the act of 1839 operates as a statutory pardon.
1st. It is said the court should have rejected the evidence. Taking it for granted as assumed by the prisoner, that the evidence objected to established the commission of the offence before the time at which the act of 1839 went into operation, it yet by no means fo11ows, that the evidence should have been excluded. The time laid in the indictment is not material and does not confine the proof within the limits of that period. The indictment was satisfied by proof of the offence at any anterior day. This is well settled, and it is not necessary to refer to authorities to. sustain it. The court had nothing to do with the act of 1822 or that of 1839, in deciding upon this motion. The proof was equally competent whether the act of 1839 or the act of 1822 was the law under which the defendant was to be punished, if found guilty. It is true that if the act of 1839 had repealed that of 1822, the defendant might have claimed the benefit of the statutory pardon. But the act of 1839 expressly guards against that consequence by providing that it shall not affect any cases subject to punishment under the act of 1822, or any former law. The only question then for the count was whether the proof tended to establish the guilt of the prisoner as stated in the bill of indictment, and if so, it could not be excluded. The effect of a verdict guilty was another question. But we cannot notice the objection, for the reason that the evidence which went to the jury is not stated in the record. It is true that the bill of exceptions refers to some extrinsic paper or document, which is said to be marked B, and to be considered as a part of the bill of exceptions. But what that document is, we do not know; for in looking through the record we find no document which has such a mark, or is otherwise identified. It is true there is in the subsequent history of the cause, a document which appears to be an exemplification of the warrant of arrest, and of the depositions taken before the justice of the peace. But this document has no mark of identity with the one referred to by the judge in the bill of exceptions. And we cannot presume that this was the paper or document referred to, because it was not competent evidence before the jury. The depositions taken before the magistrate are not evidence on the trial in the circuit court. We cannot, therefore, presume that it was the instrument of evidence indicated in the bill by the letter B. This case fully illustrates the policy of the rule which excludes from the consideration of the court matter of exception so loosely presented. The bill of exceptions must contain the matter of exception, and this court has so repeatedly held, Berry v. Hale, 1 Howard, 318. See Cox’s Dig. 104. The judge has not certified to this court what the evidence was-—and it is by his certificate alone that we can learn it. There is a certain method of communication between an appellate and an inferior tribunal. The evidence which formed the subject of the motion now under consideration has not been made known to us in any of the modes recognized by law--we cannot, therefore, notice it. 2. This view of the subject is a sufficient answer to the other assignments of error. Because it leaves us with no criterion by which to determine, save the bill of indictment and the verdict of the jury. The law requires us to presume that the verdict was fully sustained by the proof. How does the question then stand? The verdict finds the defendant guilty of the larcenies charged in the indictment, which are there charged to have been committed on the 1st day of September, 1839, and finds the value of the property stolen to be sixty dollars. What is the judgment of the law on these facts? This question is easily answered. The 63rd section of the act of 1839, "to amend the acts of this state concerning crimes and punishments and the penitentiary," provides that any person who shall be convicted of the feloniously taking and carrying away the personal property of another of the value of more than twenty-five dollars, shall be adjudged guilty of grand larceny, and shall be imprisoned in the penitentiary for a term not exceeding five years. The judgment of the court below must therefore be reversed, and rendered here in pursuance of this opinion, that the prisoner be confined in the penitentiary of this state for the term of one year as the law directs.
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