
    Martin v. The Commonwealth.
    November, 1830.
    (Absent Stuart, J.)
    Criminal Law — Passing Counterfeit Bank Notes- - Evidence to Prove Scienter. — Upon the trial of an indictment for passing counterfeit Rank notes, proof that prisoner had, about same time, passed another note of same kind, which was thought to be a counterfeit and which he took back, though this note is not produced at the trial, is admissible evidence to prove the scienter.
    Same — Same—Evidence—Notes Passed by Confederate. —Upon the trial of an indictment against M. for passing counterfeit bank notes, the prisoner appears clearly to have been confederated with one L. in passing counterfeit notes, and present when L. passed such notes; the notes so passed by L. are produced in evidence against the prisoner: Held, they are proper evidence.
    Same — Same—Necessity for Testimony of Bank Officer. —In a criminal prosecution for passing counterfeit bank notes, it is not necessary to prove the notes to be counterfeit, by an officer of the bank of which the notes are counterfeited.
    Jury — Separation before Any Evidence Given — Effect. — After a j ury is empaneled and sworn, but before any evidence is given, three of the jurors separate from their fellows, for a brief space of time: Held, such separation before any evidence given, is no cause for setting aside a verdict of conviction; especially, in the case at bar, where the separation was so momentary that any tampering with the j urors was hardly possible.
    Martin was indicted, tried and convicted, of felony, in the circuit court of Botetourt, under the statute 1 Rev. Code, ch. 154, \ 1, p. 578. He was convicted upon a count in the indictment, which charged, that he did, on the 17th December 1829, with intention to injure and defraud a certain *W. Smith, pass and tender, and offer to pass and exchange, and cause and procure to be offered to be passed and exchanged, to the said W. Smith, a certain false, forged and counterfeited note, purporting to be a bank note of the bank of Virginia for twenty dollars, knowing the note to be false, forged and counterfeited. The jury ascertained the term of his imprisonment in the penitentiary, to be ten years, and sentence was passed upon him accordingly.
    He filed four bills of exceptions to opinions of the circuit court given at the trial; and after the verdict was rendered, he moved the court to set it aside, and order a new trial; which motion the court overruled, and to this opinion also he filed a bill of exceptions, wherein all the evidence which had been adduced at the trial, was set out at large. And now he applied, by petition, to this court, for a writ of error to the judgment.
    • From the evidence set out in the last bill of exceptions, it appeared, that one Lewallen, in December 1829, informed an illiterate youth, named Millirous, that the prisoner wished to hire him, to aid in bringing in some horses, which he was going to purchase over the mountains; and that Millirous went to the prisoner, and engaged with him accordingly, the prisoner stating to Millirous, that he would learn to trade &c. Soon afterwards, the prisoner having furnished Millirous with a small horse, they and Lewallen set out from Bedford, on their journey over the mountains. At their first stage, the prisoner gave Millirous a five dollar note, to pay the expenses of the three; which was done, and the surplus, in change, was paid to the prisoner. They staid the first night in Botetourt, where the prisoner gave Millirous two twenty dollar notes, and told him to swap the small horse for a large one. A swap was soon made with W. Smith, who required and received 50 dollars in exchange, the prisoner furnishing another ten dollar note. One of the notes paid Smith, was the note mentioned in the indictment. They all traveled together through Botetourt and Giles, and returned together to Bedford. During this ^journey, Lewallen bought several horses, and paid for them with counterfeit notes of the bank of Virginia; some of which were produced in court at the trial. The prisoner appeared to take no part in these purchases; but occasionally joined in conversation about them. The prisoner and Lewallen both concurred in stating that they were going to Kana-wha ; and were buying horses to move a family. After the swap with Smith, the prisoner rode the horse which had been obtained from him; and, subsequently, one purchased by Lewallen : and ’ on their return, the horses were all shod at the expense of the prisoner. From these and other circumstances, that need not be particularized, the prisoner and Lewallen appeared, very plainly, to have been jointly interested in all these transactions.
    1. The first bill of exceptions stated, that upon the cross examination of a witness for the prisoner, the counsel for the commonwealth asked the witness, whether the prisoner had passed to him a five dollar note of one of the Virginia banks, which was said to be counterfeit? to which the witness answered that he had,-in the fall of the year 1829, passed a five dollar note to him, which was said to he a counterfeit of one of the banks of Virginia; but the witness did not remember which ; and that the prisoner, af-terwards, took that note back, and gave him another note in lieu of it. The prisoner’s counsel objected to this evidence, because the note was not produced, and because the witness could not state, which of the banks it purported to be the note of. The court overruled the objection and admitted the evidence.
    2. The second bill of exceptions, stated, that the attorney for the commonwealth, having adduced evidence of the facts (above stated) shewing the connexion between the prisoner and Lewallen, introduced a witness, who testified, that he had sold a horse to Lewallen then in company with the prisoner, during their same journey above-mentioned, for sixty-five dollars, which Lewallen paid him in notes purporting to be notes of the bank of Virginia. Upon which *the counsel for the commonwealth offered these notes in evidence. The prisoner objected to the admission of them; but the court overrule the objection. It having been farther proved, by the same witness, that on the night of the same day on which he saw the prisoner and Lewal-len, a young man, who passed by the name of Leftwich, was with them, and he understood was travelling with them, the attorney for the commonwealth introduced this man, who was Millirous, as a witness; and he testified, that he was employed by the prisoner to go with him to buy horses; that the prisoner, Ivewallen and Millirous, were all together at Smith’s, when Millirous made the swap of horses with Smith, and gave him fifty dollars to boot; that he Millirous, had no money; that he got the money he paid Smith, from the prisoner, and the horse was for the prisoner; that he, Millirous, could not read or write, and did not know but the money was good, nor did he now know that the prisoner knew it was counterfeit. The prisoner objected to the admission of all this evidence; but the court overruled the objection, and admitted it.
    3. The third bill of exceptions stated that the attorney for the commonwealth introduced persons other than bank officers, to say whether the note charged to be counterfeit, was a counterfeit or genuine note; and the prisoner objected to the admissibility of such evidence. The court overruled the objection.
    4. After the verdict was rendered, a motion was made to set it aside on two grounds, 1.that it was not warranted by the evidence ; and 2. the improper separation of the jury. The court overruled the motion ; and the prisoner filed a bill of exceptions, in which all the evidence adduced at the trial was set out at large; including contradictory testimony as to the credit of the witness Millirous ; testimony as to the prisoner’s character; and testimony as to the credit of a witness, who testified favour-ably to his character. As to the separation of the jury, it appeared, by affidavits, that immediately after the jury was sworn (whether it had been ^charged with the case, did not appear, but certainly) before any evidence had been introduced, three of the jurors left their box: one was called back before he got out of the courthouse: the other two went out unattended by an officer; but the sheriff perceiving them, immediately pursued them, and brought them back to the jury box, within about a minute’s time, without their being seen or heard to speak to or have communication with any body.
    
      
      Cnminal Law — Passing Counterfeit Bank Note.— See monographic note on “Forgery and Counterfeit-xng" appended to Coleman v. Com., 25 Gratt. 865.
    
    
      
      Same — Separation of Jury — Effect.—As authority for -the position that the separation of the jury does not per se vitiate a verdict in a criminal cause, the principal case, McCarter's Case, 11 Leigh 633, and Thompson’s Case, 8 Gratt. 637, are cited in Philips v. Com., 19 Gratt. 540. To the same effect, the principal case was cited in Thompson v. Com., 8 Gratt. 643.
      The separation or discharge of the jury after swearing and impaneling but before the examining of witnesses is no groundof objection to a verdict. Dilworth v. Com., 12 Gratt. 706, citing the principal case. ,
      In Tooel v. Com., 11 Leigh 714,717, it was held that in impaneling a jury for trial of an indictment of felony, there is no necessity to keep jurymen who have been elected and sworn together and separate from other persons, under charge of the sheriff, until the whole number shall be elected and sworn. The principal case was cited as authority for the decision.
      See further, monographic note on “Juries” appended to Chahoon v. Com., 20 Gratt. 733.
    
   MAY, J.,

delivered the resolutions of the court. 1. As to the point presented by the first bill of exceptions: in a prosecution for uttering counterfeit money or notes, evidence that the accused had, about the same period, passed other counterfeit money or notes, of the like kind, is admissible as tending to prove the scienter. With this view, the evidence was properly admitted.

2.The prisoner moved to exclude all the evidence respecting the counterfeit notes paid away by Lewallen, for the purchase of horses. We think it may be fairly deduced from the whole evidence, that the prisoner and Lewallen were jointly interested, and had confederated, in thus passing counterfeit notes, in the purchase of horses, during their expedition over the mountains. If so, there could be no stronger evidence to prove that the note mentioned in the indictment, which was of the same description, and was passed to Smith, upon the same journey, was known by the prisoner to be counterfeit.

3. The commonwealth proved by persons well acquainted with the notes of the bank of Virginia, that the note in the indictment mentioned, was counterfeit. The prisoner insisted that the proof should be made by an officer of the bank. We are of opinion, that the evidence was legal and competent, to be weighed by the jury; and, therefore, that the objection was properly overruled.

4. The motion made for a new trial, on the ground that the verdict was mot warranted by the evidence, was properly overruled. Without admitting, in any manner, the ^'propriety of spreading the evidence on the record, as was done here, and in effect asking this court to review the decision of mere questions of fact; we are all of opinion, that the verdict is fully sustained by the evidence.

Then, as to the separation of the jury. No case has been cited, and we have iound none, in which a separation of the jury, before any evidence has been introduced, has been held to be a sufficient cause to set aside their verdict. Coke, Foster and Blackstone say, that after the jury are sworn and charged with the prisoner, and after evidence has been given, the jury cannot be discharged or separated. In Bun’s trial, it being impracticable to empanel a jury on the first day, four were sworn ; and the question being made, whether they should be confined, the court held that it was unnecessary. We are not disposed to increase the rigour which has prevailed upon this subject. See The King v. Kinnear and others, 2 Barn. & Ald. 462; 7 Howell’s St. Tri. 499; 19 Id. 67l. There has been no decision of this court, which would require us to set aside the verdict for such a separation of the jury as is here stated.

It is proper to mention, that a majority of the judges have decided this part of the case, on the distinction between a separation before and one after the evidence commenced, without expressing any opinion as to the character of the separation proved ; whilst others, upon the authority of Massey Thomas’s case, 2 Virg. Ca. 479, and under a belief, that the possibility of any tampering with the jury, under the circumstances of this case, was too remote, are disposed to place it on that ground, without affirming or denying the principle adopted bjr the court.

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