Grant v. The State

Grant v. The State. Indictment for Larceny. 1. Sufficiency of indictment; clerical and grammatical mistakes. — The omission of the last letter of the word gold, in describing the money alleged to have been stolen, is a mere,clerical or grammatical misprision, which does not vitiate the indictment. 2. Same ; averment of value of stolen articles. — In an indictment for the larceny of several distinct articles, an averment of their aggregate value is sufficient on demurrer, though the better practice is to aver the separate value of each. 3. Same; description of money. — “Ten twenty-dollar gold pieces of American coinage, ninety dollars in silver coin, the description of which is to the grand jury unknown, three hundred and twenty dollars in national currency of the United States, the description and denomination of which is to the grand jury unknown, of the value of six hundred dollars, the personal property of G. X. W. ” — held a sufficient description of each kind of money, in an indictment for the larceny. 4. Admissibility of confessions. — Where the sheriff, on arresting the defendant, said to him, “I am sorry to inform you that you are my prisoner,” and, being asked “what for,” replied, “For stealing George Waite’s money;” whereupon the prisoner said, “I am sorry I stole itand the officer testified that no threats or promises were used to induce the confession, — held, that the confession was voluntary, and properly admitted. 5. Possession of other stolen articles, not named in indictment. — The fact that a bank-note belonging to the prosecutor, which is not described in the indictment as one of the stolen articles, but which was stolen at the same time and place with them, is found in the prisoner’s possession at the time of his arrest, is relevant and admissible evidence against him. 6. Proof of value of stolen money. — The value of American gold and silver coin, and of “national currency” notgs, being fixed by law, no proof of their value is necessary to sustain a conviction for their larceny. V. Gliarge as to identifying stolen money, and explaining possession. — Where there is evidence tending to show that the prisoner had exchanged a part of the stolen money for other money, which was found in his possession when arrested, a charge requested, which asserts that, unless it is shown that tho money found in his possession ‘ ‘was the identical money alleged to have been stolen, it is not incumbent on him to explain his possession,” is properly refused. Ebom the Circuit Court of Coosa. Tried before the Hon. JoHN HendebsoN. Tlie indictment in tbis case contained only a single count, which charged that the defendant “ feloniously took and carried away ten twenty-dollar gol pieces of American coinage, ninety dollars in silver coin, the description of which is to the grand jury unknown, three hundred and twenty dollars in national currency of the United States, the description of which (?) the denomination of which is to the grand jury unknown, of the value of six hundred dollars, the personal property of George P. Waite; against the peace,” &c. The defendant demurred to the indictment, on the ground that it did not describe the stolen articles with sufficient definiteness -and precision, and did not contain a sufficient averment of their value. The court overruled the demurrer, and the defendant then pleaded not guilty; and on his trial he reserved the following bill of exceptions to other rulings of the court: “ The State introduced George P. Waite as a witness, who testified, in answer to questions by the prosecuting attorney, that he lives in said county of Coosa, in a double log-house, he and his wife occupying one end of the house, and his father and mother the other end; that he kept his money and valuable papers in a small trunk, which was kept under the bed in which his father and mother slept in their room, and was kept locked; that this trunk was taken out of the house, some time between the middle of the afternoon on Friday, December 31, 1875, and eight o’clock at night on Saturday, January 1, 1876, but he could not tell at what precise time; that the defendant knew he kept his money in said trunk, and that the defendant and two others stayed all night at his house on said Friday night. The witness was then asked by the prosecuting attorney, if he had any money in his trunk at the time it was taken, to state what kind of money, and how much; to which he replied — 1st, that there was ‘ two hundred dollars in American gold coin, ten twenty-dollar gold pieces.’ The defendant objected to this evidence, on the ground that it was irrelevant, incompetent, and variant from the charge in the indictment. The court overruled the objection, and the defendant excepted. The witness stated, also, that he had in the trunk seventy-five or eighty dollars in silver coin, six^ or seven dollars of which were Mexican dollars, and tbe balance American coin, mostly half-dollars. The defendant objected to this evidence, on the ground that it was illegal and incompetent; the court overruled his objection, and he excepted. The witness further stated, that he had in said trunk about three hundred and thirty-five or forty dollars in paper currency of the United States, commonly called ‘greenbacks;’ to which evidence, also, the defendant objected, on the same grounds as above stated; but the court overruled his objection, and he excepted. “ The witness was then asked by the prosecuting attorney, if he had any other money in said trunk at the time it was taken, than that already déscribed by him; to which question the defendant objected, as illegal and irrelevant. The solicitor then stated to the court, that he would make it legal; that he expected and proposed to prove, by said witness, that a bank-bill of a particular description, not described in the indictment, was in the trunk with his other money, and that this identical bill was found in the defendant’s possession when he was arrested. The court thereupon overruled the defendant’s said objection, and he excepted. The witness then stated, that he had in said trunk an old five-dollar note or bill on the Farmers’ Exchange Bank of South Carolina ; that the defendant was arrested at his own house, late at night, and was kept and guarded there the remainder of the night, being hand-cuffed; that on the next morning witness saw him lie down across the bed, and pull the cover over him, and noticed that he had his pocket-book out, and seemed to be handling some papers, or something taken out of the pocket-book; that he called the attention of the sheriff to him, and the sheriff went up to him, and took something out of his hand, which proved to be a bill of money wadded up, and opened it, and handed it to him (witness), and he recognized it as the said bill that was in his trunk when it was taken.” (The bill was then produced, and identified by the witness.) “The defendant renewed his motion to exclude said bill from the jury, because there was no such bill or money described in, the indictment, and it was illegal and irrelevant; but the court overruled his objection and motion, and he excepted. When the sheriff took said bill from the defendant, and opened it, he handed it to witness, and remarked to him, ‘ George, here is a bill I suppose you can swear to;’ to which witness answered, ‘Yes.’ The defendant objected to this conversation going to the jury, and excepted to the ruling of the court allowing it against his objection. “ The witness was asked by the prosecuting attorney, if he ever heard the defendant make any confessions about having stolen said money, or any statements about it; to which question the defendant objected, because, if any confessions or statements about the matter were made, it was not shown that they were voluntary. Being then interrogated by the defendant’s counsel, the witness stated, that the defendant was arrested near midnight, at his house in St. Clair county, and was hand-cuffed by the sheriff not long after his arrest; that he (witness) and two other persons were with the sheriff at the tipie of the arrest; that they started the next morning to Coosa county, by way of Talladega; that he remarked to the defendant, some time during the day, that if he was guilty of stealing his (witness’) money, he (witness) thought it would be best for him to confess it, and throw himself on the mercy of the court; that he did not know of any inducements held out to the defendant to induce him to confess, and did not know of any threats made by any one to induce him to confess ; and that he was with the defendant from the time he was arrested. The court thereupon overruled the defendant’s objections, and he excepted. The witness then stated, that the sheriff, when he arrested the defendant, said to him, I am sorry to inform you that you are my prisonerthat the prisoner asked, ‘What for, Joethat the sheriff replied, ‘Eor stealing George Waite’s moneyand that the defendant then said, ‘I am sorry I stole it.’ In conversation with the defendant the next day, on their way to Talladega, the defendant stated, as said witness further testified, that he had sold two hundred dollars in gold in Talladega; that it might have been witness’ coney, but, if it was, he did not know it; that he got it from two negroes, named-and-; that he never saw the negroes before, and did not know them. Witness further stated, that.on the night of the defendant’s arrest, and not long after his arrest, he got out of a box in his house about one hundred and twenty-six dollars in American silver coin; that he could not identify it, or any of it, as the money he had lost; but that the lost money corresponded with the description of the money so found, though there' was more of it than the silver he had lost. The defendant admitted, that he had paid out several sums of money, as follows, after he had moved from Coosa, in January, 1876, and before his arrest, sixty dollars for corn, fifty dollars for land, and other sums for pro>isions, household and kitchen furniture. “Joseph E. Pond, a witness for the State, testified that he, as the sheriff of Coosa county, arrested the defendant in St. Clair county, in February or March last; that the arrest was made in the night, at the defendant’s home; that he (witness) got out of a box in the house, soon after the arrest, one hundred and twenty-six dollars in American silver coin, mostly half-dollars, which he took charge of, and brought it hack to Coosa county. The witness was then asked, if the defendant made any confessions or statements about stealing Waite’s money, to state what he said; to which question the defendant objected, because, if any confessions or statements were made, it was not shown that they were voluntary. The witness was then asked, if any threats, promises, or inducements were held out to the defendant, to influence him to make the confessions or statements; and replied, that he did not know of any. Thereupon, the court overruled the defendant’s objection, and he excepted. The witness then testified, that he. said' to the defendant, when he arrested him, ‘ I am sorry to inform you that you are my prisoner;' that the defendant asked, What for;’ that he replied, ‘ For stealing George Waite’s money;’ and that the defendant then said, ‘I am sorry I did it.’ Not long after his arrest,'in his own house, he got a sack of silver out of a box, containing one hundred and twenty-six dollars of American silver coin and said that he exchanged gold for it, and that Waite might have it if he would swear to it. On the way from St. Clair to Coosa county, defendant stated to witness, that he had sold or exchanged two hundred dollars in gold in Talladega for silver; that it might have been Waite’s money, but, if it was, he did not take it; that he got it from two negroes, named-. Witness identified the five-dollar note on the Farmers’ Exchange Bank, as the one which he had taken out of the defendant’s hand, when he was lying across the bed, on the morning after his arrest; and on this evidence said bill was offered in evidence, and was admitted by the court, against the defendant; to which he excepted. Another witness for the State testified, that about the 6th January, 1876, the defendant showed him two sacks of silver and a sack of gold, and stated that there was about seventy-five or eighty dollars of the silver, and two hundred and twenty dollars in gold. There was evidence, also, tending to show that the defendant \Vas a poor man, and had lately been engaged in teaching a public school in Coosa county; that he had been lately married, and moved to St. Clair county soon after the 6th January, 1876. The defendant proved a good character up to the time this charge was brought against him; and thére was evidence tending to show that, before it was alleged the larceny was committed, he had in his possession a five-dollar note of the Farmers’ Exchange Bank of Charleston, South Carolina. “ The defendant requested the following charges to the jury, which were in writing : 1. ‘ That it is the duty of the State to prove to tbe satisfaction of tbe jury, beyond all reasonable doubt, tbe value of tbe money alleged to bave been stolen; and if tbe State bas failed in making such proof, tbe defendant must be acquitted.’ 2. ‘ Tbat unless tbe evidence in tbe case shows, beyond a reasonable doubt, tbat tbe money said to bave been found in tbe defendant’s possession, soon after tbe larceny is said to bave been committed, was tbe identical money said to bave been in tbe trunk of George B. Waite, then it is not incumbent on tbe defendant to explain bis possession of tbe money wbicb be bad.’ Tbe court refused these charges, and tbe defendant excepted to their refusal.” S. J. Dabby, for tbe defendant. — 1. Tbe demurrer to tbe indictment ought to bave been sustained, for tbe reasons specifically assigned. Tbe omission of tbe letter d from tbe word gold is a fatal mistake, and brings tbe case within tbe principle decided in tbe case of Wood v. The State, 50 Ala. 144. Tbe articles alleged to bave been stolen are not described with tbat degree of definiteness and precision wbicb tbe law requires in such indictments, and there is no sufficient averment of their respective values. — The State v. Lea, 3 Stew. 123; 1 Porter, 116; 8 Porter, 447 ; Sheppard v. The State, 42 Ala. 531; Wharton’s Amer. Crim. Law, 130-32; 1 Bishop’s Grim. Pro. § 294; 2 Ib.% 676. 2. The evidence in reference to tbe note on tbe South Carolina bank was wholly irrelevant, and should not bave been allowed to go to tbe jury. — 1 Greenl. Ev. §§ 51, 51 a, 52 ; Blunlcei v. The State, 2 Stewart, 11. 3. Tbe confessions were not affirmatively shown to be voluntary. — 1 Greenl. Ev. §§ 219, 220; Newman v. The State, 49 Ala. 9; Mose v. The State, 36 Ala. 211. 4. Tbe conversation between the sheriff and Waite, as to tbe bank-note, was not competent evidence against tbe defendant. He bad no connection with it, and was not required to answer it. — 1 Greenl. Ev. § 199; Fuller v. Dean, 31 Ala. 654; Lawson v. The Slate, 20 Ala. 65 ; Boh v. The State, 32 Ala. 560. 5. Tbe first charge asked ought to bave been given.— 3 Greenl. Ev. _§ 153 ; Wharton’s Amer. Grim. Law, 571. 6. A man is never called on to explain bis possession of property, until it is shown to be stolen property. Tbe second charge asked ought, therefore, to bave been given. Jno. W. A. Sakfobd, Attorney-General, for tbe State.— 1. Clerical errors and grammatical mistakes do not vitiate an indictment. If gol cannot be understood to mean gold, it may be rejected as surplusage, and tbe indictment still remain good and sufficient.— Wood v. The State, 50 Ala. 145; Reeves v. The State, 20 Ala. 33. Tbe other averments, descriptive of tbe money, and as to its value, are clearly sufficient.— Oliver v. The State, 37 Ala. 134; 1 Bishop’s Cr. Pro. §§ 268 et seq. 2. Tbe confessions were proved to be entirely voluntary, within tbe rule established by repeated decisions of this court. — Mose v. The State, 36 Ala. 211. 3. Tbe defendant’s possession of tbe South Carolina bank bill was one fact in tbe train of circumstances adduced against him, tending to show bis guilt. Its weight as evidence was a question for tbe jury. 4. Tbe charges asked were properly refused. No proof of tbe value of tbe stolen notes was necessary, since their value is fixed by law, and it must be judicially known to tbe court. Tbe second charge asserted an incorrect legal proposition, and ignored a material part of tbe evidence. [MAJORITY — BRICKELL, C. J. —] BRICKELL, C. J. — Neither clerical nor grammatical errors vitiate an indictment, unless they change tbe words, or obscure tbe sense. It is simply impossible to read this indictment, and be in doubt .as to tbe words intended, or their import. Tbe omission of tbe letter d from tbe word gold,' converting it into gol, is a mere clerical error, or bad spelling, on tbe part of tbe pleader. Tbe sense is not obscured — it is tbe same as if tbe letter bad been inserted; and in reading, many persons would not observe tbe omission, and those who did would involuntarily cure it in pronunciation. The defendant, on an inspection of tbe indictment, or on bearing it read, would know that it was intended to charge him with larceny of ten twenty-dollar gold pieces of American coinage, and tbe court would with certainty understand that such was tbe accusation. Tbe case of Wood v. The State, 50 Ala. 144, is of doubtful propriety; but, conceding its correctness, it is distinguishable from this case. The omission of tbe letter l from tbe word malice, in that ease, converted it into a word incapable of a like sound. Tbe difference in tbe sound of the word gol, as written in tbe indictment, and tbe true word gold, is too imperceptible to be made tbe ground of objection.— Edmundson v. State, 17 Ala. 179. Before an objection because of false grammar, incorrect spelling, or mere clerical errors, is entertained, tbe court should be satisfied of tbe tendency of tbe error to mislead, or to leave in doubt as to tbe meaning a person of common understanding, reading, not for tbe purpose of finding defects, but to ascertain what is intended to be charged. — 1 Bish. Cr. Pro. §§ 354, 357. Tbe indictment for larceny must aver the value of the thing stolen. — Wilson v. State, 1 Porter, 118; Sheppard v. State, 42 Ala. 531. When, as in the present case, the larceny charged is of several distinct things, an averment of the collective value is sufficient, without a separate averment of the value of each. It is obviously, however, the safer and better practice to aver the value of each thing; for, if the jury do not find a general verdict of the entire charge, but a verdict of guilty of stealing one or more of the things, not specially assessing the value, difficulties in pronouncing judgment would arise. — 2 Bish. Cr. Pr. § 714. The indictment must, also, state the kind and descrip-_ tion of the goods stolen. If the larceny is of coin, the number and denomination must be stated. — Murphy v. State, 6 Ala. 845; State v. Longbottoms, ■ 11 Humph. 39. The usual mode of averment is to state the species of coin by its appropriate name, and that it is “ of the current gold or silver coin of the realm.” The purpose of the averment is to identify the things stolen; and the averment of the denomination of the coin, and that it is of the American coinage, is sufficient for purposes of identification. That it is the current coin of the realm, is then matter of judicial inference, which no averment is necessary to support. The indictment describes sufficiently the gold coin. When the species and denomination of the coin are unknown to the grand jufy, the fact may be averred, and a general description, as so many dollars in gold, or in silver coin, will be sufficient. — People v. Bozart, 36 Cal. 244; Commonwealth v. Sawtelle, 11 Cush. 142; Chisolm v. State, 45 Ala. 66; DuBois v. State, 50 Ala. 139. As to the silver coin, the indictment is, therefore, sufficient. If the larceny charged is of bills, or bank-notes, intended to circulate as money, such bills or notes may be described in a general manner, and it is not necessary to set them out verbatim. — 2 East, § 159. It is sufficient to describe them by their number, denomination, and value.' — State v. William's, 19 Ala. 15. In Sallie v. State, 39 Ala. 691, an indictment describing the things stolen, as “ one ten-dollar treasury-note of the United States, usually called a greenback, and one ten dollar national-bank-bill, usually called a greenback,” was sustained. In each of these cases, the averment was, that the thing stolen was a bill or note, and the particular species of property was stated. In DuBois v. State, 50 Ala. 139, the description was, “one pocket-book,-containing fifty dollars in national currency of the United States, the exact denomination of which is to the grand jury unknown;” and it was declared sufficient. The court say: “ It ” (tbe indictment) “ describes witb sufficient certainty and precision tbe felonious taking of tbe property stolen from tbe person of tbe owner, and tbe articles themselves, and tbeir value.” Tbe attention of tbe court does not seem to have been drawn to tbe fact that tbe particular kind of currency, wbetber of coin, or of paper, was not averred. In Crocker v. State, 47 Ala. 53, tbe description was, “ ten dollars in money of tbe United States currency,” and it was pronounced insufficient. Tbe court say, “ Tbe pleader might just as web have said ten dolíais in personal property, without setting out tbe particular bind of personal property meant.” This case is distinguishable from that'of DuBois, only by tbe fact that, in tbe latter case, there was tbe additional designation, national currency. Do these words import a particular species of money, or of currency circulating as money ? We incline to tbe opinion that such is their import. Tbe acts of congress indicate that tbe issue of tbe National Banks is to be designated as “national currency.” Tbe office of comptroller of tbe currency is established, and charged witb the execution of all laws passed by congress relating to tbe issue and regulation of a national currency secured by United States bonds. — R. S. 53, § 324. Tbe form of tbe notes of National Banks, tbe statements they must bear, are prescribed; and it is further provided, they may bear such devices, and other statements, as tbe secretary of tbe treasury shall by regulation direct. — R. S. 1007, § 5172. Tbe notes of these banks bear on tbeir face tbe designation, “ national currency.” In popular acceptation, probably, tbe “national currency” embraces alike treasury-notes, and tbe issue of national banks. Wbetber we adopt tbe popular acceptation, or tbe meaning of tbe term as it is to be extracted from tbe acts of congress, it designates notes or bills circulating by authority of the general government as money; and the description in tbe indictment, “ three hundred and twenty dollars in national currency,” describes tbe kind or species of currency, and is sufficient. Tbe averment that tbe particular denomination was unknown to tbe grand jury, dispensed witb tbe necessity of a statement of tbe number or denomination of tbe notes.— Commonwealth v. Grimes, 10 Gray, 470. Informal and inartificial as tbe indictment may be, for which there is neither apology nor excuse, we can not pronounce it insufficient. Tbe facts and circumstances, under which tbe accused made tbe declarations or confessions introduced in evidence against him, were before tbe court, indicating clearly that they were voluntary — made without the appbance of hope or fear by any other person; and of their admissibility there can be no doubt.- Mose v. State, 36 Ala. 211; King v. State, 40 Ala. 314. When goods are stolen, and the whole or a part of them are found concealed on a person, or in his possession, it is certainly a fact to be submitted to the jury. The bank-note was taken at the same time, from the same place, with the things described in the indictment as stolen. True, it is not mentioned in the indictment as one of the things stolen; but that does not affect the admissibility of the evidence. It was one of the fruits of a single crime, and the evidence was refer-rible to the issue the jury were to try. The court correctly refused the instructions requested by the defendant. They are so framed, that, if given, they could have had no other tendency than to mislead and confuse the jury. It certainly was not necessary for the State to prove the value of ten twenty-dollar pieces of American gold coin, or of ninety dollars in silver coin, the value of which is fixed by law, as is the value of three hundred and twenty dollars of national currency. There was evidence tending to show that the defendant had exchanged parts of the money stolen, for some of the money found in his possession. This evidence the second charge requested ignores ; and if it had been given, would have had a tendency to divert from this evidence entirely the attention of the jury. Beside, the charge would have relieved the defendant from offering any explanation of his possession of the Farmer’s Exchange Bank note, which was identified, because the other money found in his possession was not identified as part of the money stolen. We find no error in the record, and the judgment must be affirmed.