Belote v. State , 36 Miss. 96 ( 1858 )

HANDY, J.,

delivered the opinion of the court.

The plaintiff in error was indicted and convicted for stealing certain bank bills of the denomination of five dollars, the property of one Ephraim Strout.

The grounds of error relied upon are:

1. The admission, as evidence in behalf of the prosecution, of certain acts of the accused in showing where a part of the stolen property was placed; which acts were done after, and in consequence of, his having made a confession of his guilt under such circumstances as to render that confession inadmissible.

2. The giving of the second instruction to the jury in behalf of the prosecution.

In relation to the first ground of error, it appears that two witnesses were introduced and testified in behalf of the State on the trial. The first of these was Strout, the owner of the stolen property, who testified that he lost one hundred and sixty dollars in bank notes, of the Empire Bank of the State of Georgia; that the accused had been to his house on Saturday, the day before he missed the money; that the witness kept his money in a pocketbook, which he laid up behind the clock on the mantelpiece, and that the money was all in five-dollar bills; that witness at first thought the money was taken by some persons who were working about his house, but he afterwards suspected the accused of stealing it, and charged him with it. He further testified, that when he so charged him, which was about three weeks after the money was lost, he told the accused that if he would confess all about it, and tell where the money was, and give it up and leave the country, he would not prosecute him; and thereupon, that the accused told where the money was, and confessed having taken it. Upon motion of the accused, this testimony as to his statements and confessions, under the circumstances, was held by the court to be incompetent, and was excluded from the jury.

The witness was then asked by the district attorney to state what the accused did in regard to showing the money; and he testified that the accused went to the corn-crib and got ninety dollars of the money out of the crib and gave it to witness; that witness saw him get the money, and that it was all of the same kind that witness had lost, all in five-dollar bills, and that witness believed them to be his. The accused objected to this testimony as inadmissible; but it was permitted to go to the jury, and exception was taken thereto. And this is the first point to be considered.

It will be observed that none of the declarations or confessions made by the accused to this witness were permitted to go in evidence to the jury, and consequently no question arises as to the competency of such declarations, under the circumstances of the case. The testimony admitted went solely to the acts and conduct of the accused, in showing where the money was, and in producing and delivering it to the witness, and to the identification of the money shown and produced.

Whatever diversity of opinion may exist upon the question, whether confessions improperly obtained, and which are verified and corroborated by facts and circumstances afterwards found to be in accordance with the statement of facts made in the confession, are admissible in evidence on account of the corroboration, there can be no doubt but that acts of the accused done in consequence of the inadmissible confession, and tending to show his guilt, should be received in evidence. This was held in WariekshalVs case, 1 Leach, 298 ; Mosey’s case, lb. 301; and it is stated by all the text-writers upon the subject as the correct rule. 2 Russ, on Or. 863 (7th Amer. edit.); 1 Phill. Evid. 116 (4th Amer. edit.). And it is also laid down, that it is competent to show that the witness was directed by the accused where to find the goods, and that they were found there accordingly, but not the acknowledgment of the accused that he stole them or put them there. 2 East PI. Or. 658; 2 Russ. Or. 862.

In such cases it is not the confession of the party that is received in evidence against him, but the facts which are brought to light by his acts, and in consequence of his confessions. It will not do to say that the acts having been brought about by improper means, are of the same character as confessions produced by the same means; that the influence which produced groundless confessions, might also produce groundless conduct; for when the acts of the accused point out and produce the stolen property in its place of concealment, that fact speaks for itself, and is inconsistent alike with the idea of falsehood and of innocence. Property so concealed must be considered as in the custody of the accused, and his production of it is equivalent to its being found upon his person, or in his private keeping at his house; and in such cases, the finding or production of the property is evidence of guilt. The testimony permitted by the court to go to the jury, was simply, in substance, that the witness charged the accused with stealing the money, and thereupon the accused showed the place where it was concealed, and produced and delivered it to the witness. If the money produced was the same which was stolen from the witness, there cannot be a doubt as to the competency of the testimony.

Was the money, then, sufficiently identified? The witness testified that the bills were all of the same bank, and of the same denomination as those lost by him, and that he believed them to be bis. This correspondence, taken in connection with the number of them of so small a denomination, and the fact that the witness believed them to be his, would go far to cast a suspicion upon the possession by the accused. But the fact that, upon being charged with stealing them, as the money of the witness, be produced them from the place of concealment and delivered them to the witness, is conclusive of their identity.

We think, therefore, that this testimony was properly admitted.

The second witness introduced was one Denny, who testified in substance that, in consequence of promises of protection made by him, the accused acknowledged his guilt. This was ruled out upon the objection of the accused, and the witness was then requested to state what the accused did • in regard to the money. He testified that the accused, and witness, and one Matthis, went to the house of the accused, and that presently the accused went out of doors to get some fuel, and that witness remarked that he stayed a good while, and requested Matthis to go and see where he was; that Matthis went out, and presently there was a rap at the door, and Matthis told witness to come out there, and witness did so and went around the chimney where they were; that thereupon Matthis handed witness some money, and requested him to count it, which he did, and found there were fifty-five dollars in bank bills of five dollars, but witness did not know and could not state what banks they were on.

This testimony was objected to by the accused, but was permitted to go to the jury, and exception taken.

The facts here shown are quite different from those stated by the preceding witness. The bank notes referred to are not shown to have been in the possession of the accused, or that he had any connection with them. It simply appears that they were produced by Matthis, who handed them to the witness, requesting him to count them. Nothing is shown to explain why or how Matthis had possession of them, or why he handed them to the witness to count; nor is there anything to identify them with the notes stolen from the witness Strout. Giving to the facts stated by this witness all the force which they properly could have, they showed nothing tending to fix upon the accused the charge for which he was indicted; nor was there any other evidence to supply the vagueness and irrelevancy of the testimony. To give it any force against the accused, the jury would have had to indulge in unwarrantable conjectures to his prejudice.

It was, therefore, improperly admitted, and the objection to it should have been sustained.

The second instruction given in behalf of the State is as follows: “ If the evidence satisfy the jury that Ephraim Strout lost bank bills, and that they, or a part of them, had been found in defendant’s possession shortly after, in the absence of other evidence proving how defendant came into possession, they will find him guilty.”

The first objection taken to this instruction is, that it dispenses with the necessity of proving that the bank bills were stolen from the owner, in consequence of which the accused might have been convicted under the indictment, from the mere fact of possession of the bills unaccounted for, though they had been casually lost by the owner, and had not been stolen.”

It is true the word lost is employed in the instruction, but that is a general word, which embraces a loss by stealing, or by any act of another, as well as by the act of the owner himself, or by casualty. The evidence tended strongly to show that the money was lost by stealing, and there was nothing tending to show that it was casually lost. The general term used in the instruction must be taken with reference to the charge against the accused, and the evidence offered in support of it, and must be understood with reference to such loss as the evidence tended to establish, which was by stealing. We do not consider the instruction erroneous in this respect, though it is true that the word stolen is more precise, and the better term to be employed. The phraseology could not have reasonably misled the jury, under the circumstances of the case.

It is further objected, that the instruction renders the possession of the bank bills by the accused, shortly after they were lost by the owner, conclusive evidence of guilt, whereas it merely creates a presumption of guilt. The general rule is undoubtedly well settled, that the possession by a party of stolen goods, shortly after their loss by the owner, is presumptive evidence of guilt, which, however, may be explained; and if the party in whose possession they are found, fails satisfactorily to account for his possession, the presumption of guilt, arising from the recent loss by taking and the possession, will stand and warrant a conviction. What will be sufficient to account for the possession, or to remove the presumption which may arise therefrom, will depend much upon the length of time which intervened between the loss by the owner and the discovery of possession in the party charged, the nature and character of the goods, and all the circumstances of the case; and this, for the most part, is to be determined by the jury. These points might have been made the subject of instruction at the instance of the accused, and the attention of the jury might have been thereby directed to the shortness of the time, as shown by the evidence, in connection with the nature of the articles. But as the instruction stands, it does not take these considerations from the jury, but leaves it open for the jury to determine the question whether the time shown was short, under the circumstances; and under it, that question might have been fully argued to the jury. If they were of opinion, from the circumstances — as it must be presumed they were — that the time of production of the money by the accused was sufficiently short to raise the presumption of his guilt, and there was no explanation of his possession, the presumption of fact was not removed; and they were properly instructed that, in such case, they should find a verdict of conviction. This was the substance of the instruction, and we consider the general proposition contained in it correct.

For the error in admitting the testimony of the witness Denny, the judgment must be reversed, and the cause remanded for a new trial.