
    Isaac Sartorious vs. The State.
    Where the witnesses both for the State and the prisoner, after the impanelling of the jury, have been ordered to leave the court-room during the examination, and one of them disobeys the instruction, and hears the whole, or any part of the testimony given by other witnesses, it is a question within the discretion of the court of original jurisdiction, to allow such witness to testify in the case, or not; and this court will not interfere with this discretion, except where it has been manifestly abused.
    As a general rule, on the examination in chief, the party'calling a witness is bound, at his peril, to interrogate him as to all material matters, in the first instance; and, if any material question is omitted, it cannot be put upon the examination in reply.
    Wo new question can be put in reply, unconnected with the subject of the cross-examination, and which does not tend to explain it; but it rests with the courts of original jurisdiction, in the exercise of a sound discretion, to determine whether the facts and circumstances of a particular case do not warrant a departure from it.
    An appellate court will not interfere with the exercise of this discretion, except in an extreme case, where the injustice caused, by a departure from this rule, is manifest and great.
    In a'trial, under an indictment for receiving stolen goods, knowing them to be stolen, it is erroneous to charge the jury that, “ the discovery of the goods in the possession of the defendant, shortly after they were missed, they having been proved to have been stolen, and the denial, by the defendant, that he had any such goods in his possession, is presumptive evidence that he received-them knowing them to be stolen; ” first, because it is in effect, a charge upon the weight of evidence, and an invasion of the peculiar province of the jury; <and also because the presumption which would arise from the facts stated, would be, that the accused had himself stolen the goods, and not that he had “ received them, knowing them to be stolen.”
    It is also error for the court, in such a case, to give in charge, that “ if the jury believe from the evidence, that the articles were purchased under their value, it is a presumption of the guilty knowledge of the defendant; ” such charge being too broad and comprehensive, and indefensible upon reason or authority.
    The purchase of stolen goods by a person similarly charged, under circumstances calculated to awaken suspicion, and at a price greatly below their value, would constitute ground for the presumption that the party purchased with knowledge.
    
      Where stolen goods axe found in the possession of a party who has denied that they were id! his possession, proof that the denial was the consequence of misunderstanding, rebuts the presumption of guilt, created by such denial.
    Before a person charged with a criminal offence can be put upon his trial, he must plead to the indictment, and the fact must appear in the record.
    In error from the circuit court of Hinds county; Hon. Richard Barnett, judge.
    At. the October term, 1849, of Warren county, the plaintiff in error was indicted for buying certain' stolen articles, being copper'pipe worth $15, a stop-cock worth $10, three brass boxes worth $15, and pieces of casting worth $10, knowing them to be stolen. He was tried-at the April term, 1850, and the jury returned a verdict of “ guilty,” which verdict was set aside, a new trial granted, and the venue changed to Hinds county.
    
      At the May term, 1850, of-the Hinds county circuit court, he was again tried; and, the jury being unable to agree, were discharged by consent.
    The plaintiff in error was again put upon his trial, at the 'September term, 1851, and found guilty. The motion for a new trial was overruled, and the bill of exceptions thereto embodied the testimony in the case, the exceptions taken during the progress of the trial, and the instructions of the court.
    S. Zimmerman, for the State, proved, that he went to the store of defendant about the first of July, 1849, to search for articles missed from the foundry of Messrs. Peck & Redding; that Peck accused the prisoner of having them in his possession, which prisoner denied; and that, after searching the premises, the articles were found in the defendant’s store-room, packed in a barrel. The witness identified the articles as the property of Peck & Redding; he had handled them often, and they were in his charge at the time they were taken, and they were taken without his knowledge or consent. He proved the articles to have been worth about the amounts charged in the indictment. Peck was very much excited at the time he questioned the prisoner ; an officer named Casey was present, who told prisoner he had a search-warrant; prisoner is a foreigner, but speaks English well enough to be understood, and understands what is said to him.
    
      The district attorney asked this witness, if he knew of other stolen goods having been found on the premises of the prisoner ? ” to which question the defendant’s counsel objected, and, while the objection was being made, the witness'answered, “yes, to my sorrow,” in opposition to the remonstrances of counsel. The court immediately instructed the jury not to regard this answer of witness. At the time the articles were found, the prisoner said he purchased them from a white man, some days before the search.
    Lockwood and Peale, for the State, proved substantially the same that was proved by Zimmerman.
    Samuel Rothschild and John Braey, for defendant, proved that they were in the employ of defendant; that they were present when the articles alleged by the State to have been stolen, were bought by defendant; that he bought them from a white man; that they saw him receive and pay for them, and take a receipt; that he gave about thirty dollars for them. Defendant dealt in such articles; they were brought to his store in the daytime, on a dray, in baskets and barrels. They knew them to be the same articles that were found on defendant’s premises, because there were none other in the house when these were bought from the white man, and they had assisted to pack them in the barrels in which they were found. These, together with several other witnesses, proved that the prisoner was a foreigner, and understood the English language very imperfectly. The State then offered to re-examine Zimmerman and Lockwood, who had remained in the court-room, and heard the testimony of defendant’s witnesses, though they had been placed under the rule, and ordered to remain out of hearing. Defendant objected to their being examined; the objection was overruled, and exception taken; witness Zimmerman then proceeded to state that, on the trial before the committing court, the prisoner had said, that he had bought the articles from two white men; when defendant was charged with having the stopcock, he denied it, and said, “ he had nothing of Peck’s in his store.”
    The district attorney asked the witness how he happened to go to the store of defendant to look for the stolen articles, when he was proceeding to state what a negro had confessed, when he was interrupted by the counsel for the defendant, and instructed by the court not to tell any thing the negro told him. But the witness persisted in going on, and said “that he had gone there because a negro had confessed that he had stolen the articles, and sold them to the prisoner.”
    The court immediately instructed the jury to disregard this statement.
    Lockwood, on his reexamination, stated that Peck had told him that his stop-cock was stolen,"and, he had reason to believe, was- at the store of prisoner. The counsel for defendant objected to this testimony, and the objection was overruled.
    The errors assigned were, 1st. The record does not show that the defendant was arraigned, or plead to the indictment. 2d. The evidence is against the verdict. 3d. The court below should have granted a new trial on account of the statement improperly made by witness-Zimmerman to the jury, of what a negro had told him; and also on account of his statement, that other stolen goods had been found in the possession of the defendant. 4th. The court erred in allowing witness Lockwood to testify as to what Peck had told him. 5th. The court erred in giving the 1st, 2d, and 7th instructions, asked on the part of the State. 6th. The court erred in refusing to give the 7th, 11th, and 14th instructions, asked on the part of the defence. 7th. The court erred in allowing the State’s witnesses, who had been placed under the rule, and who had failed to abide by it and stay out -of the court-house, to be recalled and examined.
    The charges given on the part of the State, and assigned as error, are, 1st. That proof that the articles alleged in the indictment to have been bought by the defendant, knowing them to be stolen, may be made, as well by the circumstances in case, as by direct testimony. 2d. .The discovery of the goods in the possession of the defendant shortly after they were missed, they having been proved to be stolen, and the denial of the defendant that he had any such goods in his possession, is presumptive evidence of the fact that he received them knowing them to be stolen. The 7th is, that if the jury believe from the evidence that the articles were purchased under their value, it is a presumption of the guilty knowledge of the defendant.
    The instructions asked by the defendant, and refused by the court, are as follows:
    7th. “ The jury must take all the circumstances into consideration ; and even should they believe that the defendant denied the possession of the goods, yet if the jury believe that such de? nial was not the result of conscious guilt, but of misunderstanding, or apprehension of consequences, then such denial affords no evidence of guilty knowledge.”
    11th. “ It is essential that the circumstances should, to a moral certainty, actually exclude every supposition but that of the guilt of the prisoner; and that the jury should be so fully convinced by the evidence, that they would be willing to act upon that conviction, in matters of the highest importance to their own interest.”
    14th. “ Manifestations of warmth and zeal beyond what the occasion calls for, over-forwatdness in testifying that which will benefit the party by whom he is called, are tests by which the jury may, with the other evidence in the case, estimate the true character of a witness, and the value of his testimony.”
    . The record does not show that the prisoner was arraigned, or plead to the indictment.
    
      F. Anderson, for plaintiff in error.
    The first error assigned is fatal, and entitles the prisoner to a new trial.
    The second instruction given for the State, besides assuming to be true what was an essential point to be made out by the State, and charging the jury upon a matter of evidence, announces, as a rule of evidence, a proposition the reverse of true. The facts stated "would not raise a presumption that the prisoner received the goods knowing them to be stolen, but that he stole them himself; and if the jury believed the prisoner guilty of larceny, they were bound to acquit him of the charge in the indictment.
    
      The 7th instruction, asked for the defence, was good law, and applicable to the case. See Barbour’s Cr. PL 173, 174; 1 Starkie, 448, 451; Roscoe, Cf. PL 123.
    D. G. Glerni, attorney-general, for the State.
    The court will not interfere with the verdict of the jury; the facts are sufficient to sustain it.. Ifelm’s case, 13 S. & M.; Mc-Cann's case, lb.
    The objections, if well founded, amount to mere irregularities. The court below must possess some discretion, and this court will not interfere unless that discretion is grossly abused. Barbour’s Cr. L. 127.
    The charges I will not discuss. One or more are doubtful law; and I leave the court to approve or reject them.
   Mr. Chief Justice Smith

delivered the opinion of the court.

The plaintiff in error was tried and convicted in the circuit court of Hinds county upon a charge of having purchased stolen goods, the property of Redding & Peck, with a kriowl-edge-that said goods were stolen. A motion was made for a new trial, which was overruled. The bill of exceptions filed to the decision of the court overruling said motion, contains the evidence adduced on the trial, and sets out the exceptions taken by the prisoner during the progress of the trial, and the instructions, which were granted or refused at the instance of the State or the prisoner.

The exceptions brought to our attention in the argument are numerous. We shall, however, notice only such as are mainly relied on, and which present questions of practical utility.

1. It is insisted, that a new trial should have been granted, in consequence of the misconduct of a witness offered on the side of the prosecution.

It appears that, on the examination in chief of the witness referred to, the district attorney asked him what induced them to suspect that the prisoner had the stolen articles in his possession. Objection was promptly made to the legality of-this question; but in defiance of the remonstrance of the prisoner’s counsel, and while the objection was being urged before the court, the witness proceeded to state, “ that he had been informed by a negro man, who confessed that he had stolen the said articles, that he had sold them to the prisoner. _ The court immediately instructed the jury, that the answer of the witness was not evidence, and that they should not regard it in making up their verdict.”

This conduct of the witness was certainly very reprehensible, and should have been properly noticed by the court. But we do not think it was ground for a new* trial. Certainly not, unless it were distinctly shown that the statement thus made to the jury had a sinister influence upon their verdict. It is difficult to imagine in what method such fact, if it existed, could be proved ; and hence we are compelled, from the nature of the transaction, to regard the subject as committed exclusively to the discretion of the circuit court.

2. The jury having been impanelled and sworn, upon the motion of the district attorney, the witnesses in attendance, as well for the prisoner as the State, were ordered to withdraw from the court room. The evidence for the prisoner having been closed, the district attorney proposed to examine a witness called for the prosecution, and who, with the rest, had been put under the rule, for the purpose of rebuttal. This witness, after his examination in chief, had remained in the court room, and had heard the examination of the whole of the witnesses for the prisoner. His examination was objected to by the prisoner’s counsel; but the objection was overruled, and the witness was examined. This, it is insisted, was error.

The rule on this subject appears to be settled. A witness who has been ordered to withdraw, but who continues in court in violation of the order, will not ordinarily be examined. It rests, however, in the sound discretion of the judge, whether such witness shall be examined or not. “ This (says Phillips) seems to be the safest and justest course, not to exclude his evidence altogether, but to admit it, subject to such remarks as the circumstances may warrant; for otherwise an innocent party, possibly both parties, might be made to suffer a serious injury from the carelessness of a witness,, or perhaps from his ill designs and ill will. A reluctant or hostile witness might thus accomplish his purpose and defeat the party.” 2 Phil. Ev. 396; Hill & Cow Ed.; 4 Ib. 711, note, 361.

In .the State of North Carolina, according to the case of State v. Sparrow, the courts have not even the discretion to prevent the examination of a witness who has violated the order of the court to withdraw, and has remained and heard the testimony of the other witnesses. 3 N. Carolina R. 487.

3. Two' of the witnesses for the prosecution, Lockwood and Zimmerman, on their examination in reply, were permitted by the court to testify as to facts not strictly in rebuttal of the evidence adduced by the defendant, nor in explanation of the testimony in chief, offered by the prosecution. This was objected to on the trial, and is now assigned as error.

On the examination in chief, the party calling a witness, is bound at his peril to interrogate him as to all material matters in the first instance; and if any material question is omitted, it cannot be put upon the examination in reply. No new question can be put in reply, unconnected with the subject of the cross-examination, and which does not tend to explain it. This is the general rule, which courts of original jurisdiction have found it expedient to adopt. But it rests with them, in the exercise of a sound discretion, to determine whether the facts and circumstances of a particular case do not warrant a departure from, it. Hence, an appellate court will never interfere with the exercise of this discretion, except, perhaps, in an.extreme case, where, the injustice caused by a departure from this rule is manifest and great. In permitting the reexamination of these witnesses as to facts not in reply or rebuttal, the' court, therefore, exercised a discretionary authority; and it does not appear that any injustice was done. 4 Phil. Ev. p. 701, note, 360.

4. It is insisted, that the court erred in giving several of the instructions applied for by the district attorney, and in denying others which were requested in behalf of the prisoner. The following instruction, which was the second one given for the prosecution, is amongst those to which objection is made, to wit: “'The discovery of the goods in the possession of the defendant, (they having been proved to be stolen,) shortly after they were missed by Lockwood;. and the denial by the defendant that he had any such goods in his possession, is presumptive evidence that he received them knowing them to be stolen.”

There are two obvious objections to this instruction.

1st. It assumes as a fact proved, that the goods alleged to have been bought by the prisoner, were stolen. The averment that the goods were stolen, was as necessary an ingredient in the offence charged, as the allegation that the prisoner had purchased them with a knowledge of the theft. It was, in effect, a charge upon the weight of testimony, and a clear invasion upon the peculiar offices of a jury.

2d. It lays down an incorrect rule in regard to the presumption which would legally arise in the case assumed in the instruction. Generally, the fact that a party is found in the possession of stolen property recently after the commission of the larceny, is not a circumstance from which it can be legally' inferred, that the party found in possession received the property with a knowledge that it had been stolen. On the contrary, proof of such fact, connected with other circumstances, would be presumptive evidence that the party himself had committed the larceny. This is the presumption which would generally arise; but it is conceded, that there might be cases where recent possession of stolen goods, united with other' circumstances, would warrant the presumption of a felonious reception, and not of a larceny of the goods. And it was so held in the State of New York, in the case of The People v. Teal, 1 Wheeler’s Cr. Ca. 199. But in the case assumed by the instruction, that is, admitting it to be proved that the prisoner, within a short time after the goods were stolen, was found in possession of them, and that he denied having such goods in his possession, it is evident that the presumption would arise, that the prisoner had committed the larceny, and not as charged by the court, that he had received them with a knowledge of the larceny.

The seventh instruction for the prosecution is also excepted to. It is as follows : “ If the jury believe from the evidence, that the articles were purchased under their value, it is a pre-gumption of the guilty knowledge of the defendant.”

The purchase of stolen goods by a party similarly charged, under circumstances calculated to awaken suspicion, and at a price greatly below 'their value, would, doubtless, constitute ground of presumption, that the party purchased with knowledge. The rule laid down by the instruction is too broad and comprehensive, and is indefensible upon reason or authority.

5. The following instruction was requested by the prisoner and refused by the court, to wit: “ The jury must take all the circumstances into consideration ; and if they believe that the defendant denied the possession of the goods, yet if they believe that such denial was not the result of conscious guilt, but of misunderstanding, or apprehension of consequences, then said denial is no evidence of guilty knowledge.”

The denial of a party having in his possession stolen goods, that he has such goods in his possession, is holden to be presumptive proof of his guilty knowledge, for the obvious reason, that if he were ignorant of the larceny, and had come by the possession fairly, he could have no motive for concealment. When, therefore, it is shown that the denial of the possession was the consequence of misunderstandings, such denial ceases :to be a presumptive proof of the guilt of the party charged. There was evidence before the jury, that the prisoner was a foreigner, and that he spoke and understood the English language imperfectly. Hence, there was some probability that he might not have understood what articles he was charged with having in his possession. The instruction contained a plain .proposition, the truth, of which was indisputable, and was warranted by the facts in proof before the jury. It was error, therefore, in the court to refuse to give it.

6. The record does not show that the prisoner was arraigned, or that he plead to the indictment. In trials for minor offences, a formal arraignment in practice is generally dispensed with. In such cases, where the defendant has plead to the indictment, an arraignment will be presumed. But a party, before he can be put upon his trial, must plead to the indictment. In civil proceedings, it is error to submit a cause to the jury without an issue in fact having been made up by parties. In prosecutions for offences, it must be equally erroneous to put a party upon his trial, unless he has taken issue upon the charge by pleading' to the indictment.

Having determined to reverse the judgment for the errors above noticed, it has become unnecessary and improper to examine the question, whether the evidence adduced on the trial was sufficient to warrant the verdict of the jury.

Let the judgment be reversed, the prisoner remanded, and a hew trial awarded in the court below.  