
    *Trogdon v. Commonwealth.
    November Term, 1878,
    Richmond.
    1. Criminal Law — False Pretences — Admissibility in Evidence of Otber Similar Acts. — Upon the prosecution of T for obtaining goods from M & Co. upon false pretences, evidence that the accused, in the same city and at or about the same time, purchased goods from other parties, B and 0, upon the same false pretences, is admissible to show the intent of the accused iiv making the representations to M & Co., but not as proof that the accused had committed other offences not charged in the indictment. And this, though the statute has made the obtaining goods on false pretences larceny.
    2. Same — Same—Evidence—Statements.—A statement is made by T of his partners, and the condition of the partnership, to one of the firm of M. & Co., who encloses it in a letter to another member of his firm then in New York, and asks if he shall send the goods; and he receives a reply by telegraph to send them. The statement is admissible evidence.
    3. Same — Same—Representations to Third Parties. — On the 15th of March, 1878, L, having received an order to send some goods to T. & Co., obtained from B a copy of the representations made to him by T on the 28th February, 1878, which were the same representations made to M. He mailed a copy to T. & Co., asking if that statement represented the true condition of their affairs? and* received, by due course of mail, a letter signed T. & Co., saying that it did, and that the business was still prospering — Held: The testimony of L, his letter to T. & Co. containing the statement, and the answer received by him, are admissible as evidence in this case to show the intent of the accused.
    4. Same — Same—Guilty Knowledge — General Rnle. — Whenever the intent or guilty knowledge of a party charged with crime is a material ingredient in the issue of the case, other acts and declarations of a similar character tending to establish such intent or knowledge are proper evidence to be admitted, provided they are not too remotely connected with the offence charged; and what are the limits as to the time and circumstances is for the court, in its discretion, to determine.
    Same — False Pretences — Statute.— Although under the statute of Virginia the obtaining goods by false pretences is made larceny, and an indictment under the same for larceny is sufficient; yet every ingredient entering into the offence of obtaining goods by false pretences must be shown as fully as if the statute had not thus passed.
    6. Same — Review of Evidence — Exceptions Must Be Specific. — On the 1st of April, 1878, T., the accused, filed his petition in the bankrupt court to have the concern of T. & Co., composed of himself, C. Iv. T. and J. W. A., adjudicated bankrupts, and they were so adjudicated on the 26th April, 1878. In the petitions and schedules filed by T. in this bankrupt record, different representations were made as to the affairs of the concern of T. & Co. on the 28th February, 1878, when the offence was alleged to have been committed, from those stated by him in some of the representations made to M. & Co. The whole record of the bankrupt court was offered in evidence by tlxe Commonwealth, to which the accused, by counsel, objected generally, without pointing out any part of the record as objectionable. The court below admitted the whole record — Held: It was not error under the circumstances to do so. The statements contained in the petition and schedules in that record, made by the accused, were admissible as admissions or declarations of the facts therein stated, and while the schedules and statements made by the other paitne.rs are not evidence against the accused, he cannot by a general objection to the whole record impose upon the trying court the duty of examining every part of it to see whether, perchance, there is not something in it not admissible in evidence. It is his duty to point out to the court such portions of the record as come within the scope of his objection, and this rule applies as well in civil as in criminal cases.
    7. A paper purporting to be the assessment of the property of A, one of the partners of T. & Co., and whose unincumbered real estate T had represented as worth $3,000, in H. county, North Carolina, is certified by the register of the county as a correct transcript of the taxable property of A, as copied from the list returned by the assessor. The certificate and assessment are without date, and do not state what year the statement refers to — Held:
    1. Records of Other States — Admissibility in Rvidence. — In the absence of evidence that by the law of North Carolina the assessment is a record, and a copy of the record is evidence, the paper is not competent evidence against T.
    2. Same — Refects Making Incompetent.- — The certificate and assessment being without date, and it being uncertain what year the assessment refers to, for these defects the paper is not competent evidence.
    3. Evidence — Inti’Odmction of Irrelevant Documents. — The original paper to which the certificate refers, referring to the property of A, and T having no connection with or interest in it, it would not be competent evidence against him.
    4. Same — Same—When Reversal Justified. —As it is impossible for this appellate court to say that the introduction of this paper in evidence was not prejudicial to the accused, its introduction was error, for which the judgment is reversed.
    8. False Vretenees — Instructions.—The court instructs the jury ‘That they must believe from the evidence, beyond all reasonable doubt, that the alleged false pretences were believed by M. & Co.; that but for them they would not have parted with their goods — -that is, that they had the prevailing and controlling influence of maxing M. & Co. part with their property.” The instruction is correct.
    At the June term, 1878, of the hustings court of the city of Richmond, the grand jury indicted Willard F. Trogdon for the larceny of the goods and chattels of M. Millhiser & Co., of the value of $496.47. Though the indictment was for larceny, the offence charged was in fact for obtaining goods on false pretences. Willard F. Trog-don was the sole managing partner of the firm of Trogdon & Co., doing business as merchants in Greensboro, North Carolina, which was composed of said Willard F. Trogdon, Cicero L. Trogdon, and I. W. Allred. On the 28th of February, 1878. Willard F. Trogdon. in the city of Richmond, purl-chased of M. Millhiser & Co. a parcel of goods, all of which, with the prices of the different articles, are set out in the indictment.
    The trial of the prisoner took place at the same term of the court, and the jury found him guilty, and fixed the term of his imprisonment in the penitentiary at three years; and the court sentenced him in accordance with the verdict. The prisoner thereupon applied *to a judge of this court for a writ of error; which was allowed, to operate as a supersedeas.
    
    On the trial of the case the prisoner took nine bills of exceptions to rulings of the court. The first three exceptions refer to the admissibility of evidence of the purchase of goods by the prisoner, about the same time, of other merchants in Richmond, and the facts are the same in the first two cases, and nearly the same in the third. The facts and the questions are stated by Judge Staples in his opinion.
    After the evidence referred to in the first three bills of exception had been introduced the Commonwealth offered in evidence the record of a case in bankruptcy. This was a case in the district court of the United States for the western district of North Carolina. The petition was filed on the 1st of April, 1878. It was in the name of Willard F. Trogdon. stating himself to be of Greensboro, in the county of Guilford, in the district aforesaid, and states that Willard F. Trogdon, Cicero L. Trogdon and Isaac W. Allred, the last two of Gray’s chapel, in the county of Randolph, were copartners and transacting business at Greensboro, in the county of Guilford and state of North Carolina; and he asks that he individually, and the said partners, who liad carried on business as aforesaid, under the name and style of Trog-don & Co., might be adjudged bankrupts. In the schedule of debts of the firm of Trogdon & Co. filed with this petition, there is stated the debts due M. Millhiser & Co., A. Openhi-mer, Gardner, Carlton & Baldwin, and Lewis H. Blair, the first three dated the 28th of February, and the last on March 19th; and all these purchases had been proved to be made by the prisoner, and the whole debts on the schedule amounts to upwards of $9,000. There was also a schedule of the property of Allred, afterwards *filed by himself in the case. The objection to the record by the prisoner was general, not specifying any part of it.
    The fifth exception is to the admission of a paper purporting to be1 the statement by the prisoner to M. Millhiser & Co. of the names and pecuniary condition of the firm of Trogdon &' Co. ' The Commonwealth proved by G. Millhiser that he was a member of the firm of M. Millhiser & Co., and that he was the general credit man of the concern, and decided whether the goods should be sold on credit, but that the other partners had the same authority when they chose to exercise it; that on the 28th of .February, 1878, he was in the city, of New. York, and received of Samuel Hirsh, his partner in Richmond, by mail, on the 2d of March, 1878, a written statement as follows:
    “Statement.
    “Firm W. T. Trogdon, C. L- Trogdon, I. W. Allred:
    “Allred owns $3,000 real estate unincum-bered. Stock $4,000. Took inventory three weeks ago — that amount is bill cost. Began business year ago with $2,700; owes .$400. not due. Owes no bills past due. Owes Halstead Haines about $125.”
    To ’the introduction of this statement as evidence the prisoner objected; but the court overruled the objection.
    The sixth exception is to the introduction of a paper purporting to be the assessment of I. W. Allred's property in Randolph county,- in the state of North Carolina. The register of deeds for Randolph county certifies that the paper is a correct transcript of •the taxable property as copied from the list returned by the assessor for I. W. Allred. The •clerk of the superior court of Randolph coun•ty, ex officio judge of the probate court in and for said county,, certifies to the register, and the *judge of the superior court of the county certifies that the attestation and certificate of the clerk is in due form. - This paper gave one hundred and seventy acres- of land valued at $500, and •personal property valued at $218.
    • The- seventh exception is to an instruction given to the jury. After the jury had retired to consider of their verdict, and had remained out of court some time, they returned into court and propounded the following question to the court:
    “Must we believe without a doubt that the statement alóne procured the goods from Messrs. Millhiser & Co.?”
    To which the court gave the following answer:
    “In answer to the question propounded by the jury, the court instructs the jury that they must believe from the evidence, beyond all reasonable doubt, that the alleged false pretences were believed by Messrs. Millhiser & Co:; that but for them they would not have parted with their property — that is, that they had the prevailing and controlling influence • in making Millhiser & Co. part with their properly.”
    The question made in the eighth exception is the same as that made in the first three exceptions.
    The ninth exception is to the refusal of the court-to set aside the verdict and grant a- new trial. This was upon the sole ground that the facts were insufficient to show that Millhiser & Co. had relied upon or been deceived by false pretences, as found by the jury in their verdict, made to them by the accused; but that the facts showed they credited the concern of Trogdon & Co. only after making enquiry which was satisfactory to them; which enquiry was made after the false pretenses had been employed. But it is unnecessary to' state the facts.
    
      Wm. W. Crump, B. T. Crump and S. M. Page, for the prisoner.
    
      John Howar'd, for the Commonwealth.
    
      
      Fi*aud — Admissibility in Evidence of Otber Fraudulent Acts. — In Piedmont Bank v. Hatcher, 94 Va. 231, the court lays down the following rule: “Where fraud in the sale or purchase of property is indssue, evidence of other frauds of like character, committed by the same parties, at or near the same time is admissible. Its admissibility is placed upon the ground, that, where transactions of similar nature are executed by the same parties, and closely connected in point of time, the inference is reasonable that they proceed from the same motive. Large latitude is always given to the admission of evidence where the issue is fraud,” citing the principal case and Lincoln v. Chaflin, 7 Wall. 132; Butler v. Watkins, 13 Wall. 456; Ins. Co. v. Armstrong, 17 U. S. 591. In Lillienfeld v. Com., 92 Va. 818, in a proceeding to revoke a liquor license for selling liquor to minors it was held competent to offer in evidence a number of indictments found in the same court against the same defendant for similar offences and also to receive the evidence of a minor, that within twelve months prior to the time when the license sought to be revoked took effect, the said minor had purchased intoxicating liquor of the defendant, citing the principal case. In Wilson v. Carpenter, 91 Va. 183, it was held that in a suit to rescind a contract for false representations, evidence of similar representations to others, about the same time, is admissible to show the bent of mind of the party making the representations. See generally, 14 Am. & Eng. Enc. Law (2nd Ed.) 196.
    
    
      
      Evidence — Review—Exception Must Be Specific. — In Railroad Co. v. Ampey, 93 Va. 126, the court said: “The motion to exclude did not specify the particular statements or answers that were deemed objectionable by the defendant. The effect of the motion was to .impose a burden on the court that it was not called on to bear. It could not be expected to explore all of the testimony of the witness and ascertain and winnow out the exceptionable parts of it, when the defendant had not seen proper to object to its admission, and after it had been given did not take the pains to specify particularly what it asked to have excluded. A party who asks to have evidence excluded that has been admitted without objection must recall and point out distinctly the objectionable answers or statements, or the court may properly overrule the motion to exclude,” citing the principal case and Hardman v. Brown, 8 Leigh 697; Buster v. Wallace, 4 H. & M. 82; Parsons v. Harper, 16 Gratt. 64; Friend v. Wilkinson, 9 Gratt. 31. See also Railroad Co. v. Lacy, 94 Va. 463, citing the principal case.
      Same — Introduction of Irrelevant Document». — On the questions involved in the holdings in the 7th headnote regarding the admissibility in evidence of irrelevant documents, see Payne’s Case, 31 Gratt. 855 and note,
      
    
   *Stapees, J.

The accused was convicted in the hustings court of the city of Richmond of obtaining, by false pretences, certain goods from the mercantile firm of M. Millhiser & Co. During the trial numerous except ons were taken to the rulings of the court, which are now to be considered. It was proved that the accused, at the time of the commission of the alleged offence, was a resident of Greensboro. North Carolina, and a member of a firm consisting of himself, I W. Allred and Cicero L- Trogdon, doing business under -the style of Trogdon & Co. ; that on or about the 28th of February, 1878, the accused came to the city of Richmond and represented to Millhiser & Co. that the concern of which he was a member had, when they commenced business a year before, a cash capital of $2,700, a stock of goods then on hand worth $4,000, according to an inventory taken just before he left home; that tire debts of the concern amounted to about $400, none of which were due; and that I. W. Allred, one of the partners, owned real estate in Randolph county, North Carolina, of the value of $3.000; and upon these statements he obtained from Millhiser & Co. the goods mentioned in the indictment. Having proved these facts, the Commonwealth introduced Charles A. Baldwin and A. Oppenheimer, also merchants of Richmond city, and proposed to show by them that the accused had, on the same day, made to each of them statements similar in all respects to that made to Millhiser & Co., with reference to the condition and' circumstances of Trogdon & Co. and of I. W. Allred individually; the only difference being that in the case of A. Oppenheimer, the representations were made after the goods were purchased but before they were taken away. To the introduction of this evidence the accused, by his counsel, objected, upon the ground that it was illegal and irrelevant, and upon *the further ground that the accused was then under indictment for obtaining the goods of Gardner, Carlton & Baldwin, of which concern Charles A. Baldwin was a member. The court overruled the objection and admitted the evidence; to which the accused excepted; and this is the subject matter of the first and second bills of exception.

The Commonwealth next introduced Lewis H. Blair, of the firm of Lewis H. Blair & Co., who testified that having obtained from Charles A. Baldwin a copy of a statement in his possession, the same made by the accused, touching the condition of the concern of Trogdon & Co., he enclosed that statement in a letter addressed to Trogdon & Co-Greensboro, North Carolina, and asked if the same was correct, and in due course of mail, a day or two after, he received a letter dated 18th March, 1878, signed Trogdon & Co., in which it was said the statement was a true one, and the business of the firm still prospering. To the admission of this testimony, as also to the introduction of the letters in question, the accused objected; but this objection was overruled; and he again excepted; and this is his third bill of exceptions.

Before considering the main question presented by these bills of exception, it will be well to dispose of a preliminary point arising upon the admission of the letter mentioned in the third bill of exceptions, signed Trogdon & Co., and addressed to Lewis H. Blair & Co. It is insisted that this letter, for aught that appears, may have been written by seme other member of the firm; that there is nothing to connect the accused with it; nothing to show that he wrote it, or that he ever saw it. It is sufficient to say that the accused resided at Greensboro, North Carolina, and was the only member of the concern that did reside there, and that he had the exclusive management and control of the business. These *facts justify the presumption that the accused is the writer of the letter. At all events, they were sufficient to warrant its admission to the jury in the absence of countervailing evidence.

The real question arising upon the three bills of exception is, whether evidence or other false pretences is admissible upon this indictment. This question has been very ably argued by counsel on both sides, and is one of the very first impression in the state. It has created great difficulties in the minds of some of the judges. The subject has received a very careful consideration, and all the authorities referred to in the argument, with many others not referred to, have been fully examined. After the most deliberate reflection, 1 think the hustings court did not err in receiving the evidence; and I will now proceed to give the reasons for this opinion.

I do not dispute the value of the rule which confines the evidence to the matter in issue; more especially in criminal prosecutions involving the life or liberty of the accused. It is of the utmost importance to him _ that the facts laid before the jury shall consist exclusively of the transactions which form the subject of the indictment, and which alone he can be expected to come prepared to answer. It is not just io him to require him to answer for two offences when he is indicted for one, and thus to blacken his character and to create impressions on the mind of the jury unfavorable to his innocence. This is the doctrine of the courts in every well-regulated system of jurisprudence. And yet, when we come to examine the cases bearing upon the question, it is difficult to determine which is the more extensive, the doctrine or the acknowledged exceptions. For example, in prosecutions for uttering forged notes, for passing counterfeit money, and for receiving stolen goods, evidence is always admissible-of other transactions of a like character, although they may amount to distinct felonies, provided they are “not too far removed. What are the limits as to-time and circumstances, in such cases, it is-for the court in its discretion to determine. Nor is it an objection, that the offences thus-proved are the subjects of separate indictments. Roscoe on Crim. Evidence, 86; 3 Russel on Crimes, 285. The object of this evidence is simply to show the guilty knowledge of the accused.

There is another class of cases in which it is held permissible to prove other offences for the purpose of showing the guilty intent of the accused. Thus upon an indictment for maliciously shooting at the prosecutor, it has been held proper to show that the accused had twice shot at the prosecutor the same day. for the purpose of rebutting the idea of accident, and of establishing the wilful intent. Reg. v. Voke, Russ. & Ry. 531. And so, upon a prosecution for administering sulphuric acid to horses, with intent to kill them, evidence is admissible that the prisoner had frequently mixed sulphuric acid with horses’ corn. Reg. v. Mogg, 4 Car. & Payne, 364. Upon an indictment for a libel,_ the publication of other libels not laid in the indictment may be given in evidence to show the quo animo the defendant made the publication in question. I GreenL Evi. § 53. Indeed the cases upon this subject are almost innumerable, as may be seen upon examination of the books on criminal law. 3 Russ, on Crimes, §§ 285, 387, 388; Roscoe on Criminal Evidence, 86, 94.

In Bottombey v. United States, 1 Story R. 135, Mr. Justice Story has very clearly stated the principle upon which this sort of evidence is received. He says: “In all cases where the guilt of the party depends upon the intent, purpose or design with which an act is done, or upon his guilty knowledge, I understand it to be a general rule that collateral facts may be examined into in which he bore a part, for the purpose of establishing a guilty intent. In short, whenever the intent or guilty *knowledge of a party is a material ingredient in the issue of a case, there collateral facts, that is, other acts and declarations of a similar character tending to establish such intent or knowledge, are proper evidence. In many cases of fraud it would be otherwise impossible satisfactorily to establish the true nature and character of the act.” The remarks of Bigelow, J., in Cook v. Moore, 11 Cush. R. 313, 216, are to the same effect. Now, upon a prosecution for obtaining goods by false pretenses the indictment must aver the fraudulent intent, and the Commonwealth must prove it. l"t is the very gist of the offence. Annable’s case, 34 Gratt. 563, 570. It is not sufficient that the accused knowingly states what is false. It must be shown his intent was to defraud. Such intent is not a presumption of _ law, but a matter of fact for the jury. Being a secret operation of the mind it can only be ascertained by the acts and representations of the party. A single act or representation in many cases would not be deqisiv.e, especially where the accused has sustained a previous good character. But when it is shown that he made similar representations about the same time to other persons, and by means of such representations obtained goods, all of which were false, the presumption is greatly strengthened that he intended to defraud.

One of the counsel for the accused, in a very able argument upon this branch of the case, insisted that when the accused obtains goods by falsely representing himself a man of property, the jury must infer the guilty intent; and therefore evidence of collateral facts is unnecessary and irrelevant, and can only mislead the jury.

It may be conceded that when goods are obtained by false representations of the kind mentioned — and this is the whole case- — • the jury may justly infer the fraudulent intent. But it frequently happens, in a large majority of cases, there are nupierous facts and circumstances, sometimes *of a minute and varied character, throwing light ■upon the conduct and motives of the accused. It is impossible for the court to foresee what may be developed in the progress of the trial. When evidence is offered of other transactions to show the guilty intent of the accused, is the court to say the intent is already conclusively proved, and the evi'dence is therefore irrelevant? What would be thought of a judge who would thus prejudge the case and invade the province of the jury? The learned counsel would hardly -concede the fraudulent intent of his client upon any state of facts. In the case before us we have but a small portion of the evidence. It is, of course, impossible for us to say what testimony was adduced by the accused upon the question of his particular intent; and yet we are asked to say that the evidence set out in the three bills of exception is irrelevant, upon the assumption that without it the jury must have found the guilty intent on the part of the accused. The opinion of this court in Walsh’s case, 16 Gratt, 541, hqs a strong bearing upon this question. There the distinction is plainly drawn between guilty knowledge or intent as a presumption of law, and guilty knowledge or intent as a presumption of fact — a mere •inference to be drawn by the jury. In'the latter case, whilst the jury may find the accused guilty upon a given state of facts, they are not bound to do so. They are to weigh all the circumstances, and draw from them such conclusion as they may think warranted by the dvidence. In this class of cases it has been held that even the admission of the accused that the act was done with a fraudulent or malicious intent cannot preclude the Commonwealth from proving it by any proper evidence. Commonwealth v. McCarthy, 119 Mass. R. 354; Priest v. Inhab. Groton, 103 Mass. R. 530.

. But let us see what are the authorities on the question. *In civil cases the decisions are abundant which hold that on. the question of intent to defraud by false pretenses other acts or representations of a like character done at or about the same time with that in issue are admissible wi.th,a view to the quo animo. The case of McKinney v. Dingley, 4 Greenl. R. 173, is an example. There the suit was to avoid a sale on the ground of the false and fraudulent conduct of the purchaser in representing himself to be a man of good property and credit when he is not; and it was held proper for the vendor to give evidence of similar false pretexts successfully used to other persons in the same town about the same time to show a general scheme to amass property by fraud. In Hehnequin v. Naylor, 34 New York R. 139, for the purpose of proving the fraud the vendor relied in part upon the fact that the defendant had purchased of several persons large bills of goods, the plaintiff, among the rest, just on the eve of suspension. See also Whittier v. Varney, 10 New Hamp. 391, 477; Menfey v. Brace, 33 Barb. R. 561; Allison v. Matthew, 3 John. R. 334; Olmstead v. Hotailing, 1 Hill 317; 1 Phillip’s Ev. 653, 773. These decisions áre directly in point, and are entitled to great weight if the rules in criminal are the same as in civil cases. That they are so in general, so far as the means of ascertaining truth are concerned, is established by a great weight of authority. 1 Bishop's Grim. Procedure, § 503; 1 Greenl. § 65; Roscde Crim. Ev. p. 1, and the cases cited by these authors; Gray-son’s case, 6 Gratt. 713.

As, however, it may be said that the rule confining the evidence to the point in issue should be more rigidly applied in criminal than in civil cases, let us examine some of the decisions based upon criminal prosecutions. The case of The Commonwealth v. Eastman, 1 Cush. R. 189, was an indictment for obtaining goods or money under false pretenses. It was ably argued *and carefully considered. The court in commenting upon one branch of the case, say: “Evidence of other purchases of goods than those charged in the indictment made by the defendants from other persons during the month of March, 1844, under similar circumstances with the transaction charged in the indictment, was admitted for the purpose of showing the .nature of the business of the defendants and the extent of the purchasers made by them, and also as bearing upon the bona fide character of the dealings of the defendants with the partiem lar individuals alleged to be defrauded.

“This species of evidence would not be admissible for the purpose of showing that the defendant had also committed other like offences, but simply as an indication of the intention in making the purchases set out in the indictment. It is analogous to the proof of the scienter in indictments for passing counterfeit money, by showing that the defendant passed other counterfeit money to other persons about the same time. Such evidence is always open to the objection that it requires the defendant to explain other transactions than those charged in the indictment; but when offered for the limited purpose above stated, that of showing a criminal intent in the doing of the act charged, it has always been admissible.

This decision was followed by the case of Commonwealth v. Tuckerman, 10 Gray’s R. 173 — an indictment for embezzlement — and upon the trial evidence was admitted of other acts of embezzlement of different amounts and at different times, for the purpose of showing the fraudulent intent. The next case is that of Commonwealth v. Jeffries, 7 Allen’s R. 548, for obtaining goods by false pretenses. In both cases the decision in Eastman’s case was cited, commented upon and approved. And in all the cases, the principle governing *in prosecutions for having counterfeit money is applied to prosecutions for obtaining money by false pretenses.

The counsel for the accused in this case have cited the case of State v. Lapage, 57 New Hamp. R. 245; and have read extracts from the opinion of Chief Justice Cushing. The learned judge discusses with great force and learning the rules governing the admission of collateral facts to show the intent of the accused. And although it is obvious he is not favorably inclined to the admission of such evidence, still he concedes there are cases in which it is admissible. After enumerating these cases, he proceeds as follows: ‘Tn cases of indictment for obtaining goods under false pretenses it very often happens that the respondent has been in some kind of business of which buying and selling goods on credit makes a part, and in such a case the difficulty is to draw the line between the points where legitimate business ceases and fraud begins. In such cases a single purchase of goods on credit might happen in the ordinary course of business; but if a party should make several purchases of goods at a time when he was in failing circumstances, that fact would have some tendency to show that he knew he was in failing circumstances, and that he did not intend to pay for them. Of course the effect of such testimony would depend upon the number and amount of such purchases, the after disposition of the goods purchased, and all the other circumstances.” See also State v. Johnson, 33 New Hamp. R. 441; Horey v. Grant, 52 New Hamp. 569; Defrese v. State, 3 Heisk. R. 53; 42 Ala. R. 532.

The case of Wood v. United States, 16 Peter’s R. 342, is perhaps a more satisfactory authority than any cited. There, ttpon an information against the defendant for failing to invoice certain goods imported by him, with design to evade the duties and to defraud the government, *it was decided that other invoices of articles imported into New York and assigned to the defendant was proper evidence to show the fraudulent intent. Junes; Story, in delivering the opinion of the court, said: “The question was one of fraudulent intent or not, and upon questions of that sort, where the intent of the party is the matter in issue, it has always been deemed allowable as well in criminal as in civil cases to introduce evidence of other acts and doings of the party of a kindred character, in order to illustrate and establish his intention. Indeed, in no other way would it be practicable in many cases to establish such intent or motive; for the single act taken by itself may not be decisive either way, but when taken in connection with others of" the like character and motive, the intent and motive may be demonstrated almost with absolute certainty.” These views the learned judge illustrates and enforces by argument, and by reference to authority.

The most recent case on this subject is that of Bielsehofshy v. The People of the State of New York, decided by the supreme court of New York, and reported in 3 Hun. R. 46. It was a prosecution for obtaining goods upon false pretenses. It was decided to be competent to prove other offences committed by the accused, with the view to show his intent in the particular offence charged, although it might incidentally prejudice the character of the accused in the mind of the jury. Upon a writ of error to the court of appeals of New York this judgment was affirmed. So that we have the decision of the highest courts of New York upon the very points involved here. Against this array of authorities we have the case of Reg. v. Holt, Bell Crim. Cases 280, in which, upon an indictment for obtaining money upon false pretenses, it was held not permissible to show that the prisoner had obtained money by similar false pretenses within *a week afterwards, for the purpose of establishing the intent.

As the case was not argued, and no reasons are given in the opinion of the court, it is impossible to say upon what grounds the decision was placed — possibly the subsequent pretenses were considered as tqo remote in point of time. The decision has not been approved by writers on criminal law. Roscoe Crim. Ev., 94. Opposed to this are the two cases of Reg. v. Roebuck, D. & B. p. 24, and Queen v. Frances, 2 Crim. Cases, Reserved Raw R. 128. decided in 1872. This last case is in entire harmony with the American decisions already cited; so that the English doctrine sustains fully the view taken by the courts in this country.

It has been said, that whatever may be the rule elsewhere, under our statute obtaining goods upon false pretenses is made larceny, and upon a prosecution for larceny it is not admissible to prove other larcenies, by way of showing the intent.

Without stopping to controvert the conclusion reached by this position, it is sufficient to refer to Anable’s case, 24 Gralt. 563, in which it was held that whilst the statute declares that the party obtaining goods by false pretenses is guilty of larceny, it is not intended to dispense with the proof requisite to show that the goods were obtained by false pretenses. Every ingredient entering into thp offence of obtaining goods by false pretenses must be shown as fully as if the statute had not been passed.

My opinion, therefore, is, that the hustings court did not err in admitting the evidence set out in the three bills of exception already adverted to, such evidence not being too remote in time or place to throw light upon the intent of the accused in the main transaction. I think, however, that the court ought to have explained to the jury that this evidence was only *to be considered by them in connection with and as explanatory of such intent,_ and hot as proof the accused had committed other offences not charged in the indictment.

■ Passing from this point, we come to the fourth bill of exceptions, which presents the question of the admissibility as evidence of the record in bankruptcy. And, first, it is objected there is no proof that the accused is the identical W. F. Trogdon who filed the petition and schedule in bankruptcy, and who was adjudicated a bankrupt by the district court of the United States for the western district of North Carolina. It is very true that no witness swears to the identity of the accused; but the evidence, is, nevertheless, conclusive upon that point. When the. accused came to Richmond in February, Í878, he represented that the concern of which he was a member consisted of himself, I. W. Allred and Cicero Trogdon, and that it was doing business at Greensboro, North Carolina, under the style of Trogdon & Co. The petition in bankruptcy is signed by W. F. Trogdon, of Greensboro, and represents that he is a member of the firm of Trogdon & Co., consisting of himself. I. W. Allred and Cicero L- Trogdon. In the list of creditors filed among the proceedings in bankruptcy are the names of Millhiser & Co., A. Oppenheimer, and Gardner, Carlton & Baldwin, whose debts are stated to have been contracted on the 28th February,1878. It is not within the bounds of probability that there were two mercantile firms in Greensboro, North Carolina, with the same style and name, with the same number of parties, and all bearing identically the same names, and that each of these firms should be debtor in the same amount to three mercantile firms in this city for goods purchased the same day. Upon this state of *facts there can be no doubt that the proof of identity is complete.

The next enquiry is. to what extent and for what purpose is the record in bankruptcy evidence in this case?

• Without entering into a discussion of the questions so laboriously argued by counsel as to the admissibility and effect of records in civil cases, upon the trial of criminal of-fences, I deem it sufficient to say that in my view this record is competent to show that the copartnership of Trogdon & Co., and the individuals constituting said copartnership, were on the 20th of April. 1878, duly adjudicated bankrupts by the district court of the United ¡States. Apart from the consideration that an adjudication in bankruptcy is in the nature of a decree in rem as respects the status of the debtor, it plainly appears that the whole proceeding in this case was had at the instance and upon the application of the accused. The record is also competent to show the petition and schedules filed by the accused, the statements therein contained, and any other act done or declaration made by the accused in the progress of the proceedings in bankruptcy. And this upon the plain principle that a record is always evidence against a party as containing a solemn admission, or judicial declaration, in regard to a particular fact or facts. In such case, however, it is admitted not as a judgment conclusively establishing the matter, but as a deliberate declaration or admission that the fact was so. 1 Greenl. on Ev. § 527 a.

My opinion further is, that the several schedules filed by I. W. Allred and Cicero Trogdon, also constituting a part of the record in bankruptcy, are not legal evidence against the accused. They are simply the admissions in writing of those persons. The accused had no opportunity of controverting these statements, and no particular intent in doing so. And even though it appeared the accused *was afforded an opportunity of controverting the admissions of his copartners, it would be unjust that upon a criminal charge involving his liberty and character, he should be prejudiced by a mere default in protecting his interest in a civil proceeding. Starkie on Ev. 301. If, therefore, upon the trial in the hustings court an objection had been made to the introduction of this evidence, it would have been the duty of the hustings court to exclude it, or instruct the jury to disregard it. A difficulty, however, arises from the fact that the accused made no objection to any specific part of the record, but contented himself with a general objection to the whole. Several decisions of this court in civil cases have held that it is the duty of the objecting party to lay his finger upon the exceptionable parts of the record, so that the mind of the trying court might be brought to bear upon them instead of making a motion equivalent to the rejection of the whole record. Harriman v. Brown, 8 Leigh, 697; Friend v. Wilkinson & Hunt, 9 Gratt. 31; Parson’s v. Harper, 16 Gratt. 64. The _ same rule must necessarily prevail in criminal cases. The accused cannot by a general objection to the whole record impose upon the court the duty of examining every part of it to see whether perchance there may not be something in it not admissible as evidence. It is his duty to point out such portions of it as come within the scope of his objection. I think, therefore, the objection to the entire record in this case was too broad, and the hustings court committed no error in overruling it as made.

. With respect to the fifth bill of exceptions, I think the hustings court did not err in admitting as evidence the written statement therein mentioned. This statement was the same made by the accused to Samuel Hirsh, a member of the firm of Millhiser & Co., on the 28th of February, 1878. It was forwarded on the 2d of March *to another member of the firm then in the city of New York. The latter, after receiving the statement, and after making certain en-quiries in New York, telegraphed to his house, in Richmond, to ship the good¿ purchased by the accused to him in Greensboro. This statement must be treated as a representation made to, the .firm, and to every member of it. It constitutes material evidence to show the grounds upon which both partners acted, the one in selling and the other in directing the delivery of the goods to the accused.

In the further progress of the trial the Commonwealth offered in evidence what purported to be a copy of a list of real and personal estate given in by I. W. Allred to the assessor of Randolph, North Carolina, and certified as correct by the register of deeds in that county. This paper was objected to by the accused, but his objection was overruled; and this is the subject of the sixth bill of exceptions. It does not appear when the list was made out by Allred, or when it was returned by the assessor, or when the copy was certified by the register; for the assessment, the list and the certificate are all without date. The paper did not tend, therefore, in the slightest degree to show the falsity of the representations made by the accused on the 28th of February, 1878, with respect to the real estate owned by Allred in Randolph county.

But this is not all. The paper purports to be a copy of a list on file in some office or other place of deposit in North Carolina. Such a copy would not be evidence in any court, unless the original is a matter of record, or unless there is a statute making the copy evidence. We know nothing of the functions and duties of the assessor or of the register of deeds in North Carolina. All these matters are regulated not by the principles of the common law, but by North Carolina statutes, of which the Virginia courts cannot take judicial notice. If the Commonwealth wished to rely upon a paper of this sort, it *ought to have brought the North Carolina statutes here, and proved them as other facts; and it ought to have shown by these statutes that a copy of this sort is made legal evidence.

But to prevent all misapprehension on a future trial, 1 will say that, in my opinion, this paper, whether a copy or the original, is not legal evidence against the accused in this case for any purpose. It is nothing more than a statement of Allred’s, on oath it may be, made to some North Carolina officer, of the amount and value of his real and personal property. It was not made in the presence of the accused; it was a matter in which he had no interest or concern, and no opportunity was ever afforded him of cross-examining the person who made it. It is difficult to find even a plausible ground upon which such a paper or statement can be used upon a criminal trial.

The learned counsel representing the Commonwealth here seemed to think, however, that the evidence was very immaterial, and the accused could not have been prejudiced by it. How is it possible for us to say what effect it had on the mind of the jury? The whole purpose of introducing it was to show that the accused had made a false statement to Millhiser & Co. when he represented that his copartner Allred owned $3,000 worth of real estate in Randolph county. If the paper proved anything, it proved the falsity of that representation; and so the jury must have considered it. Besides, at the present term this court has held, as it has held on repeated occasions, that if the accused may have been prejudiced by the evidence, even though it be doubtful whether in fact he was so or not. it is sufficient for reversing the judgment.

My opinion, therefore, is, that the hustings court erred in admitting the evidence set out in the ninth bill of exceptions. Payne v. Commonwealth, supra, p. 855, and cases there cited, decided at the present term.

The next subject of enquiry is the seventh bill of exceptions, from which it appears that the hustings court, in response to an enquiry by the jury, instructed them they must be satisfied from the evidence that the alleged false pretenses were believed by Mill-hiser & Co.; that but for them they would not have parted with their goods — that is, that they had the prevailing and controlling influence in making Millhiser & Co. part with their property. To this instruction the accused excepted. Upon this point it is sufficient to say that the instruction is in accordance with the decision of this court in Pay’s case, 28 Gratt. 912; and with the current of authority elsewhere'.

The questions arising upon the eighth bill of exceptions have been already considered and disposed of in connection with the first, second and third bills of exception. They do not, therefore, require any further notice at our hands.

The ninth bill of exceptions and the last, is to the refusal of the hustings court to set aside the verdict and grant the accused a new trial. According to the certificate of the judge of that court, the application for a new trial was based exclusively upon the ground that the facts relating to the belief of Millhiser & Co. in the statement of the accused were insufficient to show that this statement was the cause of the predominating cause of the delivery of the goods. In other words, that Millhiser & Co. did not give entire credence to the representations of the accused, but proceeded to obtain elsewhere information upon the subject, and upon that information they relied in giving the credit. The true enquiry, as is conceded, is whether the false pretense, either operating alone or with other causes, had a controlling influence, or that ^without such pretense the owner would not have parted with his goods. Upon this point the evidence is decisive. It was proved by both members of the concern of Mill-hiser & Co. they would not have shipped the goods but for the statements made by the accused. It may by that the information obtained in New York had some influence, upon their minds; but this is perfectly consistent with the idea that they would not have given the credit without the statement. The question was peculiarly one for the jury. If they believed the witnesses, this court cannot set aside the verdict unless the finding is shown to be either in conflict with or wholly unsupported by the evidence. My opinion, therefore, is, that the hustings court did .not err in overruling the motion for a new trial upon the ground set forth in the ninth bill of exceptions. The result is that the judgment must be reserved for the errors already indicated, the verdict set aside, and a new trial awarded.

The other judges concurred in the opinion. of

StapeEs, J.

The judgment was as follows:

The court is of opinion, for reasons stated and filed with the record, that whilst the hustings court did not err in admitting the evidence set out in the first, second and third bills of exceptions, it ought to have instructed the jury that such evidence was only admissible for the purpose of illustrating and establishing the intent of the accused on making the representations and in obtaining the goods which are the subject of the indictment.

The court is further of opinion that the hustings court erred in admitting as evidence the paper purporting *to be the assessment of I. W. Allred’s property in Randolph county, North Carolina, as set out in the sixth bill of exceptions.

The court is further of opinion there is no other error in the rulings of the Hustings court as set out in the fourth, seventh, eighth and ninth bills of exception. But for the errors hereinbefore mentioned, it is considered that the judgment of the hustings court be reversed and annulled, the verdict of the jury set aside, and a new trial awarded the plaintiff in error. Upon which the said hustings court is to conform to the views herein expressed.

Judgment ■reversed.  