D. 1877. *Receipt for a Registered Letter. No. 337. Postoffice D—, received of H. Burton, -326 E. 14- - a letter addressed to T. Van Horn, New Orleans, La. to No. 17, I saw Nelson asleep in the bath- | office and given to the person who presents room; Matilda has a room next to the baththe letter for registration. room, but I do not know whether she was 809 in her room on that night or not; there was a boy named Richard, floor servant, on the floor above; any servant in the house could have gone through and returned from the passage as I did; the room has been occupied since the arrest of the prisoner; I saw an excursion ticket from Washington to Richmond and return, among the articles found on the prisoner; the doors to the hotel were all locked except the door to the office in which I sat. John T. Hall, police officer, another witness for the Commonwealth, after being sworn, testified: 808 a On the 30th day of October last, about half-past five o'clock A. M., I was sent to for to the St. Claire hotel; I went there and was informed by Mr. Weatherford that a robbery had been committed. I went up to the room of these two men, and Weatherford knocked two or three times on the door, when Carter opened it, Johnson being still in bed; I told him to get up and dress himself; Weatherford entered the room first and spoke to Carter; asked him who is your friend in bed, and he said Davis; he then said, oh, Johnson! I searched them while they were dressing by searching each piece of clothes before they put them on; I searched their *baggage, but did not make a thorough search of that until we got to the station-house; I found this file in Johnson's valise, and found in Johnson's pocket-book one hundred and eightyfour dollars in money, and in Carter's pocketbook ten dollars, five of which was counterfeit five dollar bill, the balance in ones and a two; I searched the bed, the bureau, and in fact everything in the room; I found nothing in the bureau; I pulled the drawers of the bureau out so as to see in them good, but found nothing in them; I did not see the nippers now shown me in the bureau; I then took the prisoners to the station-house, then searched them again, separated them and questioned them; I asked Johnson how long he had known Carter, and he told me he never saw him until the day before he met him in Washington. I then searched their baggage carefully and found two skeleton keys in the lining of the hat, a black slouch hat in the valise; the keys were wrapped up in a piece of brown paper; these were in Johnson's valise; also found a piece of wax and two keys; the keys are called skeleton keys; I also found two small wooden keys; they are called pattern keys from which keys are moulded; they were in Carter's pocketbook; I saw them last in the police court, but have not seen them since; the book shown me I took from Carter, and it has "J. D. Cannon's book" written in it; this book has been in Carter's possession since the hearing at the police court, and the name does not look as plain as it did down there; the tickets I saw were in this book, and are in the words and figures following, to-wit: This blank is to be filled up at the mailing T. Miley, Jr., P. M. Endorsed on face: Registered October 10, 1877, branch D, New York postoffice. Return Registered Letter Receipt. Note. This return receipt, after being signed by the party to whom the letter or package which accompanies it is delivered, must be immediately enclosed to the postmaster at the office where it originated. Should the registered letter not be delivered, this receipt must be forwarded with it in due course, to the dead-letter office. No. 2220. 1877 by Charles T. Burton, 139 a letter addressed to Charles 303 Washington street, postoffice. There was one pass for L. Lewis and another for Lewis Lewis; they are not now in the book; I have gotten such articles as this file, nippers and skeleton keys from burglars. On cross-examination he said: I did not take out the bureau drawers, and set them on the floor; I am pretty certain they were not taken out by any one. I made a more careful search of the room than usual; I wanted to find that money. The town was flooded with thieves and burglars during the late visit of the President; the money I found on Johnson consisted of three fifty dollar bills, three tens and two twos. The first thing I said when I went into the room was to tell Johnson to get up; I have no recollection of telling him I wanted that fifty dollars; the keys might have worked themselves inside the hat where I found them. Dr. E. S. Pendleton, another witness for the Commonwealth, after being sworn, testified: I am one of the proprietors of the St. Clair hotel. Since the arrest of the prisoners two ladies, one Miss Booten and the other Miss Stansbury, two ladies of excellent standing, have been the only occupants of room No. 11 until the day before yesterday; the nippers were in the hands of the attorney for the Commonwealth before that. On cross-examination he said: I cannot say no one else has been in the room since the arrest of the prisoners, and don't know 811 *Matilda Otey, another witness for the Commonwealth, after being sworn, testified: I am a waiter at the St. Claire hotel, and heard of the robbery next day. I was asleep in my room at the time it occurred, and had not been upon that floor since about ten o'clock that night. I found this instrument (the nippers) in No. 11; it was inside of the top drawer of bureau. I found it one day this week in taking out the drawers of the bureau to dust in behind them; as the ladies always like to have everything clean about the bureau I always take the drawers out to dust them. how many people have occupied that room | suspicion against the accused, however since. The bureau has been in it now about strong that suspicion may be. It falls short eighteen months; don't know where the of proof of his guilt beyond all rational bureau came from; think it came from ground of doubt to the contrary. The eviWatson's factory; nearly all our furniture dence tending to connect the accused with came from there. the offence charged, if there can be said to be any such evidence, is inconclusive, and is consistent with an hypothesis which assumes the innocence of the accused of the offence charged in the indictment. That burglars' instruments were found in possession of the accused, if such was the fact, was a suspicious circumstance, and tended strongly to show that the accused had come to Richmond on the occasion of the crowd which at that time assembled in the city, with a purpose on his part to avail himself of any opportunity he might have on that occasion to commit such an offence. But surely that evidence was wholly insufficient, in itself, to connect the accused with the particular offence charged against him in the indictment. And there was little other evidence in the case *to strengthen and support that evidence; certainly not enough, in my opinion, in connection with that evidence, to establish his guilt of the offence charged beyond a rational doubt to the contrary. That the accused, at the time of the commission of the offence, occupied a room in the same hotel with the room which was broken and entered, and that the two rooms were on the same passage, though on opposite sides, and but fifteen feet apart, are also suspicious J. B. Angle, a policeman, and witness for the Commonwealth, after being sworn, testified: I searched the valise at the station-house. The hat (a black slouch hat) lay in the one side of it. The hat was mashed flat, and the keys, wrapped in brown valise on 813 paper, were inside of it. The valise was pretty full. The keys lay inside the hat, and there was no lining inside of the hat. Don't think the keys ould have worked themselves in the hat, but they might have done so. The valise was pretty full, but more could have been gotten into it. I certify that the foregoing is the sub-circumstances, when taken in connection stance of the evidence introduced for the Commonwealth in this case, there being no evidence for the defence. Witness my signature and seal. A. B. Guigon. [Seal.] But was there sufficient proof that the accused committed the offence to warrant his conviction thereof by the jury? To warrant such conviction, the evidence should be such as, if true, to exclude all rational doubt of the guilt of the accused. I do not think it was such in this case. The evidence introduced, and not the facts proved on the trial, is certified in the bill of exceptions. No evidence was introduced in behalf of the accused; and in considering this question we must regard as true all the evidence of the witnesses introduced in behalf of the Commonwealth. So regarding the evidence, did it warrant the verdict of the jury? Did it legally show that the accused committed the burglary charged against him? Again I say, I think It makes out no more than ground for not. with the tools found in possession of the that the accused was near enough to commit accused as aforesaid. They at least show the offence. The same may be said of the circumstance that when Crenshaw, whose room was opened and entered, awoke, "he heard the door creek and four or five steps; he could not tell, and would not say, in which direction they were going, though his belief at the time was, they were going in a room; he heard some other little noise, but could not say what it was; the sound created the impression on his mind that some one had touched a door, or was at a door; the steps were distinct." And the same may be said of the tircumstance stated by the witness Weatherford, the night clerk at the St. Claire hotel: "About 5 o'clock A. M., which was but a few moments before the alleged burglary was committed, he went up to the room of another Mr. Crenshaw (No. 17), to wake him; No. 17 is on the floor above 11 (occupied by the accused), and 14 (occupied by the Crenshaw whose money was alleged to have been stolen, and immediately over No. 9); the steps from that floor came down at the end of the passage, on the floor below, just opposite the door of No. 9, which is next to No. 11; a few minutes before 5 o'clock, witness came down these stairs, having waked Mr. Crenshaw up stairs before he came down; as witness came down he 814 examined the hall; as he reached *the floor, nearly opposite no. 9, he heard something that caused him to stop; that noise continued until the latch | his companion, Carter, were undressed and fell; he knew it was the latch of No. 11; when he heard the latch he passed the doors of No. 11 and No. 14; No. 14 was closed; two lights were burning in the passage; witness expected to be called, but hearing nothing, turned back and went to the office; he was satisfied the noise was in No. 11, before he heard the latch catch; he then heard the latch catch, and was positive it was No. 11; the first sound was as if some one was pushing the door gently to, and then the distinct click of the latch. It was 5 o'clock when he got back, and about six minutes to 5 when he left the office to go up to No. 17, to wake the other Mr. Crenshaw up. In twenty to twenty-five minutes, Mr. Julien B. Crenshaw, who was robbed, came down and told witness he had been robbed." These circumstances, taken singly or all together, while they create a suspicion of guilt, are yet inconclusive and wholly insufficient to prove such guilt. They are consistent with the fact of guilt, but are also consistent with the fact of innocence. If they be not at least as consistent with the fact of innocence as with the fact of guilt, they certainly do not amount to such degree of proof as to connect the accused with the offence and to warrant his cɔnviction thereof. 815 But the other evidence in the case, so far from strengthening the suspicion of guilt, rather tends to weaken if not disprove it. There were two obvious modes of connecting the accused with the offence, either of which would have been probably sufficient for the purpose if it had been sustained by evidence. One was, by identifying the accused as the person who entered the room of J. B. Crenshaw; and the other was, by identifying some of the money found in possession of the accused as the money, or some of it, which had been stolen from Crenshaw. *But so far from identifying the accused as the person who entered the room of Crenshaw, the latter did not see the person who entered his room, either while such person was in the room or before or after he entered it. While Crenshaw heard distinctly steps on the threshold and passing along the hall, he did not see the person whose steps he heard. And so far from identifying some of the money found in possession of the accused as the money, or some of it, which had been stolen from Crenshaw, not a dollar of the latter was identified; but on the contrary, it was proved that a twenty-dollar bank note was a part of the money taken from Crenshaw, and yet no such note was found in the possession or room of the accused. It is difficult to believe that the money of Crenshaw could have been stolen by the accused without being found in his room on the search which was made therein by Crenshaw, the owner of the money, Weatherford, the night clerk at the St. Claire hotel, and Hall, the police officer, almost immediately after the offence was committed. When they went to the room of the accused to make the search they found the door closed, and the accused and in bed. They denied their guilt, manifested no alarm, and invited a search of themselves and their room and of everything in it; which search was accordingly made, and though $184 in money were found in the pocketbook of Johnson, the accused, and $10 in the pocket-book of Carter, five of which was a five dollar counterfeit bill, not a dollar of either parcel was identified as a part of the money which had been stolen from Crenshaw; and the twenty-dollar note which was stolen from him could not possibly have been a part of the money found as aforesaid It was argued that the search was not complete, and some of the evidence tends to show that such was the case. But cer816 tainly the three *persons who made the search had the strongest motives to make it complete, so far as it could reasonably be expected to lead to the discovery of the money, supposing it to be in the possession or room of the accused. Each of them testified as to the manner and extent of the search, and it is difficult to conceive how it could have been more complete than it was. Reference can be had to their testimony to see how complete the search was. While certain tools, which were called in the argument burglars' tools, were found in the possession and room of the accused and his companion, Carter, in making the search, not one of them could have been used in breaking and entering the room of Crenshaw, the door of which was not even locked, and was opened and entered merely by turning the knob on the outside. Another material circumstance of the case in connection with the one last stated, is, that when the alleged offence was committed all of the rooms near the one occupied by Crenshaw, and no doubt most of those in other parts of the hotel, were occupied by guests, and there were two servants, one a male and the other a female, who attended to his room and had a pass key to it, and who slept on the same floor with the said room on the night on which it was broken and entered. Now, without meaning to say, what certainly does not appear, that the evidence in this case creates the slightest suspicion that any one of these guests and servants, other than the accused, was guilty of the offence charged against him, certainly the circumstance just stated is material to be considered in deciding the question whether the conviction of the accused was warranted by the evidence in the case. I will now notice such of the cases referred to in the argument of the case as I deem material to be noticed, from which it will 817 cused. appear that the evidence, supposing it *all to be true, was wholly insufficient to warrant the conviction of the ac In Algheri v. The State of Mississippi, 25 Miss. R. 584, referred to by the counsel of the plaintiff in error, it was held by the high court of errors and appeals of that state: 1st. That in the application of cir apply more to the questions arising on the cumstantial evidence to the determination flict with those above referred to. They of a case, the utmost caution and vigilance should be used. 2d. That it is always insufficient, where, assuming all to be proved which the evidence tends to prove, some other hypothesis may still be true; for it is the actual exclusion of every other hypothesis which invests mere circumstances with the force of truth; and 3d. That where the evidence leaves it indifferent which of several hypothesis is true, or establishes only some finite probability in favor of one hypothesis, such evidence cannot amount to proof, however great the probability may be. The second and third of these propositions were literally taken from 1 Stark. on Ev. 572, and correctly expound the law. I will cite only two other of the cases referred to by the counsel for the plaintiff in error, but they are cases of the highest authority, being the unanimous decisions of our late general court when it was our court of appeal in criminal cases, and when it was composed of judges of the greatest ability and experience, especially in regard to the criminal law. I mean Grayson's case, 6 Gratt. 712, and same case, 9 Id. 613. Grayson was twice convicted of murder and sentenced to be hung therefor. Judge Field, who presided at each trial, refused in each case to grant a new trial on the ground that the verdict was contrary to the evidence. And the general court, in each case, reversed the judgment and remanded the cause for a new trial to be had therein. Judge Scott, who delivered the opinion of the court in the former case, concluded it by saying: "In the case at bar my opinion is, that there is no evidence which connects the accused with the homicide of which he has been convicted; that at most it amounts only to a suspicion that he had some hand in it, and that the evidence is plainly insufficient to warrant the verdict." Judge Leigh, who delivered the opinion of the court in the latter case said: "The court is fully aware of the weight which ought to be given to the two concurring verdicts approved by the judge who presided at the trials, and if, in our opinion, the evidence made even a probable case of guilt, we would be unwilling to disturb the judgment. But at the last term this court was of opinion, unanimously, that the evidence introduced on the first trial was plainly insufficient to connect the accused with the murder. The evidence on the second trial is somewhat different from the evidence on the first trial, but this difference is favorable to the accused, and 820 after examining the testimony anew, we are again unanimously of opinion that it is wholly insufficient to sustain the verdict and judgment." 818 The principle of these two cases is directly applicable to this; and according to the principle the judgment in this case ought to be reversed on the ground that the evidence in the case was insufficient to support the verdict. I do not think there is anything in the cases cited by the attorney-general in con Besides the two cases of Grayson, cited by the counsel for the plaintiff in error from the decisions of the highest court of appeal in criminal cases in this state, there are two cases recently decided by this court which have an important bearing upon this case. In each of them the opinion of the court was delivered by my brother Christian, In one of and the court was unanimous. them, Smith's case, 21 Gratt, 809, the question was to the *corpus delicti, on a charge of murder of a bastard The court held that on a trial for child. murder, the death of a person charged to have been murdered must be proved by the most cogent and irresistible evidence, either by witnesses who were present when the murderous act was done, or by proof of the body having been seen dead, or by proof of criminal violence adequate to produce death, and which accounts for the disappearance of the body. Every one who reads the evide..e in the case must be morally convinced that a murder had been committed, and that the accused was guilty of the offence, but there was not sufficient evidence of the corpus delicti for his conviction, and this court, therefore, reversed the judgment against him. In concluding his opinion, Judge Christian said, that "tutius semper est errare in acquietando, quan in puniendo, &c., is the wise and humane maxim of the criminal law." The same sentiment has often been expressed by another maxim of the same law, that "it is better that ninety-nine (that is, an indefinite number of) guilty persons should escape punishment, than that one innocent person should be punished." In the other of the two cases referred to, Pryor's case, 27 Gratt. 1009, the rules in relation to new trials, stated in Grayson's case, 6 Gratt. 712, and Blosser v. Harshbarger, 21 Id. 214, were approved and reaffirmed; and in that case (Pryor's) the evidence being wholly circumstantial, it was held in the appellate court to be plainly insufficient to warrant the finding of the prisoner guilty of the offence charged in the indictment. I am therefore of opinion, that the court of hustings erred in overruling the motion of the plaintiff in error to set aside the ver dict. In regard to the questions presented by the 1st, 2d, 3d and 4th bills of exceptions, very little need be said. The 5th bill of exceptions being made a part of each 821 of the other bills of exceptions, and the evidence set out in the 5th bill of exceptions being plainly insufficient to convict the accused of the burglary charged against him in the indictment, the evidence set out in the other bills of exceptions was at least inadmissible in connection with the other evidence set out in the 5th bill of exceptions, and the hustings court therefore erred in overruling the motions to exclude the evidence mentioned in the 1st, 2d, 3d and 4th bills respectively, made after all the evidence set out in the 5th bill of exceptions had been introduced. It is very common and sometimes proper to admit evidence when first offered which may by evidence subsequently introduced be rendered admissible, and afterwards to exclude it when not made admissible by evidence subsequently introduced. In this case all the evidence set out in the 5th bill of exceptions being wholly insufficient to connect the accused with the offence, those parts of the said evidence which are set out in the other bills of exceptions thus became inadmissible, and the hustings court erred in overruling the motions of the plaintiff in error to exclude them. I am therefore of opinion, that the judgment of the hustings court ought to be reversed, the verdict of the jury set aside, and the cause remanded to the said hustings court for a new trial to be had therein, in conformity with the foregoing opinion. Christian, J., concurred in the opinion of Moncure, P. The other judges concurred in the opinion of Moncure, P., on the fifth exception. There was a diversity of opinion on the questions involved in the other exceptions. The judgment was as follows: For reasons stated in writing and 822 filed with the record, *the court is of opinion, that in regard to the first that "the said hustings court erred in disassignment of error in this case, to-wit: charging the jury regularly empanelled and ber, 1877, to try the issue joined between sworn on Saturday, the 10th day of Novemthe Commonwealth and the petitioner," &c., it is sufficient to say that no objection was taken in the court below to the action of the court in this respect; and no further notice will be taken of that subject. But the court is further of opinion, in regard to the fifth bill of exceptions, which is to the action of the said hustings court in overruling the motion of the plaintiff in "because the same is contrary to law and error to set aside the verdict of the jury, the evidence," that the evidence set out in the said bill of exceptions, which was all the evidence introduced on the trial of the case, was wholly insufficient, even conceding it all to be true, to connect the plaintiff in error with the offence charged against him in the indictment and to warrant his conviction thereof by the jury; and that the said hustings court, therefore, erred in overruling the said motion to set aside the said verdict. In regard to the other bills of exceptions, to-wit: the first, second, third and fourth, the court is not unanimous; a majority of the judges being of opinion that the said hustings court did not err in overruling any of the motions to exclude any of the evidence mentioned in the first and fourth of said bills; but did err in overruling the motions to exclude the evidence mentioned in the second and third of said bills. In regard to the second bill of exceptions, however, the said majority consisted of but three judges, one of whom is of opinion that the said hustings court would not have erred in admitting as evidence the conversation therein mentioned upon condition that the jury 823 believed that the said conversation *was heard by the accused; and the said judge is of opinion that evidence of the said conversation ought to have been admitted upon that condition. Therefore it is considered, ordered and adjudged by the court, that for the errors aforesaid, the said judgment of the said the said verdict of the jury be set aside, hustings court be reversed and annulled, and a new trial be awarded to the plaintiff in error for the said offence; and the cause is remanded to the safd hustings court for a new trial and further proceedings to be had therein in conformity with the foregoing opinion; which is ordered to be certified to the said hustings court of the city of Richmond. Judgment reversed. |