
    Hopper, Stiers and Lemmons v. The Commonwealth.
    1849. December Term.
    
    1. In a criminal trial, the prosecutor may employ counsel to aid the attorney for the Commonwealth, and such counsel will be permitted to aid in the prosecution.
    
      2. State whether or not you examined the horse tracks towards Crogan’s ? State whether or not you had any difficulty in following the tracks ? These are not improper leading questions.
    
      3. What is sufficient knowledge of a prisoner to authorize witness to identify him.
    4. On a criminal trial the witnesses are sworn and sent out of the courthouse so as not to hear the testimony of the witnesses ex-ainined. In the progress of the trial, upon a question as to whether a witness introduced by the prisoner is a white man or a mulatto, the Commonwealth offers a witness who has been present at the trial. This is no objection to his being examined.
    5. A witness who identifies a certain coat, not allowed to repeat what was said by a free mulatto woman, as confirming his statement.
    
      Patrick F. Hopper, Daniel Stiers and William Lemmons, were indicted and tried together at the October term 1849, of the Circuit court of Henry county, for the robbery of Thomas Harbor. After the venire was sworn, it appearing that three of the members of the bar had been employed by Harbor to aid the attorney for the Commonwealth in the prosecution, and that they were present for that purpose; and it appearing by the statement of the said attorney that before Harbor had employed said counsel, he had applied to said attorney to know whether he wished him to employ any member of the bar to aid in the prosecution, and had been told by the attorney that he had no wish on the subject, and that Harbor could do as he pleased upon the subject; and the attorney stating in Court that he wished the said Harbor’s wishes to be carried out, and cared no more about the matter than that, the prisoners, by their counsel, moved the Court not to permit the said counsel, or either of them, in any way to appear for the Commonwealth on the trial of the prisoners. But the Court overruled the motion, and permitted all of said counsel to appear in prosecuting the case, except in the argument thereof, which he confined to the attorney for the Commonwealth and one of the said counsel. To this opinion of the Court the prisoners excepted.
    
      On the trial of the cause, the attorney for the Commoirwealth introduced Peter Watkins as a witness; and it not appearing that he was a reluctant witness, and being on his examination in chief on behalf of the Commonwealth, the said attorney put to the witness the following questions, viz: “ State whether or not you examined the horse tracks towards Crogan’s ?" “ State whether or not you had any difficulty in following the tracks ?” To the answering of which the prisoners, by their counsel, objected, because they were leading questions. But the Court overruled the objection, and allowed them to be answered; and the answers were adverse to the prisoners. To this opinion of the Court the prisoners excepted.
    The witness Watkins stated, that the winter before the alleged robbery was committed, (which was in April 1849,) he saw the prisoner Hopper for the first time; that he would probably have known him again. That the morning after the robbery was committed, he went from the house where it was done, for the purpose of tracking some horses from said house. That whilst thus tracking, he fell in with a man who was in fact the said Hopper, but whom, the witness stated, he did not know that he knew to be the said Hopper. He further stated, that sometime in February preceding the robbery, he, for the first time, saw the prisoner Stiers, and was with him probably some ten or fifteen minutes : That he saw Stiers at the time of tracking as aforesaid, and thinks that he then knew him: And he further stated, that he had never seen, to his knowledge, either of said persons, except on the occasions aforesaid, unless he saw them at the time of the committing of the said robbery. With a view of identifying the said prisoners as the persons who had committed the robbery, the attorney for the Commonwealth, after the facts aforesaid had been proved, requested the witness to look on the prisoners and say if he believed that either of them was the said Hopper and the said Stiers. On which the witness said, that he believed that the said Hopper and Stiers (the prisoners) were, to the best of his knowledge, two of the persons engaged in committing the said robbery, Whereupon the said prisoners, Hopper and Stiers, moved the Court to exclude the said answer from the jury, oil the ground that the witness had not laid a sufficient ground for expressing a belief or opinion, by shewing a previous knowledge of said Hopper and Stiers. But the Court overruled the motion; and the prisoners again excepted.
    Before any testimony had been offered on the trial, the prisoners demanded that all the witnesses for the Commonwealth should be sworn and sent out of Court, except the first examined, so that no one of them should hear the testimony of any other who had preceded him in the case ; the Commonwealth insisting on the same step being taken with the witnesses for the prisoners. All the witnesses on each side were then called, sworn, and being charged not to come within hearing of the testimony, as it was deposed, were sent out of Court ; except the witness first examined. After the testimony for the Commonwealth was closed, the prisoners offered a witness named Curry, when the Commonwealth objected to him, on the ground that he was a mulatto; and to sustain the objection, offered one Odie as a witness, who had been in Court during the whole trial, as one of the guard; and who was not sworn and sent out when the other witnesses were. To the swearing and examining this witness, under the circumstances aforesaid, the prisoners objected. But the Court overruled the objection; and the prisoners again excepted.
    In the further progress of the trial, a witness, Thomas D. Price, was introduced'by the prisoners, and the question of the identity of a certain coat worn by a slave who drove a wagon, arising in the cause, the witness stated that it was made of very peculiar cloth; that he had seen one of the same kind in the possession of a seamstress who was a free woman of colour, for the purpose of being made up; and shortly afterwards he saw one of the same material in the possession of said slave and worn by him; which was of the same colour with the one in said woman’s possession; and that he believed it to be same. When the witness was cross-examined by the Commonwealth, he was pressed to say if the above was the only way in which he knew the same coat to be the one made by the seamstress; and on being about to state that while the same was in the hands of said seamstress he heard her say that she was making it for said slave, the Court would not permit said declaration to be proved. And the prisoners again excepted.
    The jury found the prisoners guilty, and fixed the term of their imprisonment in the penitentiary at five years. And thereupon they applied to the Court for a new trial, on the ground that the verdict was contrary to the evidence; but the Court overruled the motion, and sentenced the prisoners in accordance with the verdict. The prisoners excepted to the opinion of the Court refusing them a new trial, and the Court certified the following as all the facts proved on the trial, on the point on which the prisoners rested their motion for a new trial, viz: That the prisoners having entered the dwelling house of Thomas Harbor, presented a pistol at him, knocked him down, tied him, and took from his pocket the key of a room adjoining that in which they so tied and knocked down the said Harbor. That these two rooms were separated by a log partition, which at the time was chinked and daubed, but had in it cracks through which any person might have seen, who stood near the wall and attempted to look through the same. That the said Harbor and one Peter Watkins, who were the only persons in the house at the time the of-fence was committed, (except the prisoners,) were forced by the prisoners to sit with their backs to the said wall during the whole time the prisoners remained in the house; and that the money stolen was taken from the back room aforesaid. That one of the prisoners having entered said back room, and having broken open a trunk, took therefrom two pocket books, which he brought into the front room in which were said Harbor and Walkins, and there rifled them of their contents. That the prisoners also took from the second room aforesaid, a purse or bag of silver. That from the position of the said Harbor and Watkins they could not see the trunk aforesaid, from which the said pocket books were taken, nor the place from which the said purse or bag of silver was taken; though had they been allowed to turn round and to look through the cracks in the wall, they might have seen the prisoners when they broke open the trunk, and took the pocket books therefrom: and might also have seen them take the purse and contents aforesaid. The pocket books were left by the prisoners in the first room, on their departure.
    The prisoners applied to this Court for a writ of error.
   By the Court.

The writ of error is refused.  