
    
      The State vs. Josiah C. Smart.
    
    An indictment, under the Act, 3 Stat. for stealing bank bills, need not state that they were the bills of some incorporated bank, or give such a minute description of them that they may be identified and distinguished from other bills of the same bank: such an indictment is sufficient if it describes the bills as the bills of a certain bank, naming it.
    An indictment for larceny need give no more than a generrl description of the thing stolen.
    The jury found the prisoner “guilty of larcely only,” and their finding was published as “guilty of larceny only,” and so recorded. Held, that the finding was sufficient.
    On the trial of an indictment for larceny of bank bills, some evidence that the bills were of value and genuine is necessary, but the same degree of evidence that would be required in an action to recover the money due on the bills is not necessary; nor is it necessary that the testimony should furnish a minute description of the bills, or should show that the banks were incorporated.
    
      Tillery’s case, 1 N. & McC. 9, commented on.
    New trial granted a prisoner convicted of larceny, the evidence, on which he was convicted, being suspicious.
    
      Before O’Neall, J. at Charleston, May Term, 1850.
    The report of his Honor, the presiding Judge, is as follows:
    “ The prisoner was indicted, in the same indictment, for robbery, stealing from the prisoner, and larceny of bank bills. The jury found him guilty of larceny only, as read in Court, and recorded in the minutes of the Court. On the back of the indictment, it is written : — ' Guilty of larcely only.’
    “ The prisoner was also, indicted for an assault and battery, with intent to kill and murder one Thomas Hatcher, on and from whom .the robbery, stealing and larceny, it was alleged, had been committed. The defendant was tried on both cases, at the same time, and by the. same jury. They acquitted him of the assault and battery with intent to kill and murder.
    “Thomas Hatcher, the prosecutor, examined for the State, proved that he knew the prisoner six or- seven years. He stated that, on Sunday evening, the 18th of November last, in Market street, just in front of the prisoner’s house^-hgi:was 'robbed of $65, in the following bank bills, viz: five^i^^^-'Mls of,the Union Bank: one $10 bill of the Bank of.-Geórlña; Qtíe>í|10. Planters’s and Mechanics’s Bank; one $p.b^outh J^SoIina-Bank; and one other $10 bill, (he thoughtjj ttó Bg,nl§o''f Cháfleslon, but he was not certain. It was taken oU^oñp® left^iíeúd jjocket of his pantaloons, by splitting his pants ^jidth a4§feife. ¿The prisoner, he said, did the act. The circumstances, a^riSe-detailed them, may be stated as follows: — The proseSutor is ,a bachelor, and lives N. W. corner of Market and Meeting streets, opposite to Baker’s shop, known as the Exchange. On Saturday evening, (17th Nov.) he said he was standing at the door, and was about going up stairs to take something to drink, when the prisoner came; he invited him to go up and take a drink, which he did; this was repeated about 8 o’clock. On this occasion, the prosecutor, in the presence of the prisoner, took out of his pantaloons pocket his roll of bills, and gave two $5’s for a $10, and put up the roll again in the presence of the prisoner.-— Both walked to Baker’s corner; he, the prisoner, said he wanted to lay out ten cents in drink, with the prosecutor, who agreed, The prisoner went away and returned, asked the prosecutor if he did not take long walks on Sunday 7 He told him he did, and on the prisoner asking which way he, the prosecutor, went, he described the route; the prisoner asked, to be allowed to accompany him. Accordingly, Sunday, after dinner, the two began their walk; at the first drinking house they stopped and took a drink; the prisoner then exhibited his knife; the journey was continued by Carew’s Mill; thence, across the Rail Road; there, they turned into a house to get a drink (the whiskey was had,) turned down King-street to the American Hotel, where they got some Monongahela; rested and repeated; went on to Baker’s corner, where the prisoner said he would treat if he had the money; the prosecutor furnished the change, and the treat followed; went to Cord’s, where there was another treat. There the parties separated for supper. After supper, they met and took another drink, which was soon repeated. Then the prisoner became exceedingly fond of the prosecutor, hugged him in his arms; said ‘ he looked so much like his dadda, he could not help but like him.’ In this embrace, he hustled up the prosecutor’s jacket, who said he felt the lick with the knife, which cut his pants ; he felt and found his money gone. He charged the. prisoner with robbing him; the prisoner swearing he would kill him if he made such a charge, instantly stabbed him, and, thereupon, he stabbed the prisoner. The prosecutor said he was stabbed in the arm, in the abdomen, and had his hand cut. He denied that he first took out his knife, or that he made any threats. He admitted six or eight drinks in the evening; he said he felt, a little lively;’ Smart in the same condition. He, the prosecutor, generally remembered every thing when he had been drinking. He had, he said, four dollars change in his right pocket. The inside of the pocket was not cut when the money was taken. His vest, where it rested on his pants, and where they were cut, was not cut. Tne knife he used, he said, was a spring-back knife ; he was asked to produce it; he had forgot, he said, to bring it with him. He was asked if he was not in the habit of using his knife on other persons. This question he declined answering. He admitted slowly and reluctantly, that he had been once indicted for using a knife ; once for striking at Solomon Moses; he stabbed Boyd, who first stabbed him. He was asked, and denied that he drew his knife in the street, on Friday evening, and swore that he would crucify some one. (Neither Taylor nor Tompkins heard any such a threat, or a threat to stah any one.) He was asked, and denied, that he ever told any one that he did not know who stabbed him.
    Dr. Fitch proved, that he was called to see the prosecutor, Sunday evening about 6, and described the injuries; a wound on the left arm, right hand, and on the stomach, as if made by a blow struck down; this last was superficial; the wound on the arm was- made with a knife. Smart, the prisoner, he also saw; he was stabbed across the stomach,; this was a worse injury than that of the prosecutor. The prosecutor, the witness said, was weak and fainty, and was under the influence of liquor. He, in answer to questions put by the prisoner, said that he thought the prosecutor said that he had been robbed.
    “ Mr. Sargent and Mr. T. 0. Lynch concurred in pretty much the same description of the wounds of the prosecutor. Sargent found him at the foot of his (Hatcher’s) own stairs, and carried him up to his bed room, where Lynch saw him. Sargent said he was too weak to give any account of what had taken place. He was sober at 3 P. M. but drinking when he carried him up stairs. Lynch said that the prosecutor asked his negro wench ' what d — d son of a bitch had cut himhe said nothing about being robbed. He was not able, he thought, from loss of blood, to give any account of what had taken place.
    
      J B. Langston, for the defence, proved that, on Sunday night, between 7 and 8, he saw the prosecutor in his own house, on his own bed; he thought him drunk. The prosecutor asked the negro wench who stabbed him; she replied, ‘ Smart.’ He asked a second time; she made the same reply, and added, ‘ he was too Smart for you.’ The prosecutor said nothing about the robbery. The prosecutor’s character is, he said, that of a troublesome man, and that he carried arms. N. L. Gilreath said he saw the prosecutor, and asked him who cut him ? He said he did not know who did it. He saw him three times ; he said nothing, until Wednesday, about the robbery. The prosecutor’s character is, he said, that of -a quarrelsome man. On Monday, he was pretty lively. Wm. S. Frazer proved that the prosecutor’s character is, that he is a violent man, and when drunk, that he will use a weapon. He had a quarrel once with him; his coat was cut. John McCollum proved, that he has always understood the prosecutor would draw his knife when in liquor.
    “ On the 18th December, 1849, the prisoner sued out a writ in slander against the prosecutor; on the 3d of Janury, 1850, the prosecutor took out the warrant for robbery. Francis Tompkins proved that, a night or two before this affair, he saw the prosecutor, who spoke of Cramer. He, the prosecutor, pulled out a knife; said he was prepared for any of the rascals. He carried, the prosecutor said, a knife, and a pretty sharp one too; he was drinking, and flourishing it about. The witness thought it was too nigh.
    
      “ Mr. Sargent, in reply, proved that, on Monday, the prosecutor was very weak; on that morning, he pointed to his pantaloons, and said he had lost sixty-five dollars, when the fight took place.
    “ The case was fully and fairly submitted to the jury. The case was put to them expressly on the credit of Thomas Hatch-er, the prosecutor; they were told, if they believed him, they might convict the prisoner, otherwise, they should acquit him. For several reasons, I thought he ought not to be believed.
    “ 1st. The cut in his pants, I thought, might have been made when he was stabbed, and could not have been done at the time the prisoner was hugging him.
    
      “ 2d. He was contradicted in several particulars.
    “ 3d. He did not know, Sunday night, who stabbed him.
    
      “ 4th. He was drunk; and
    “ 5th. When drunk, his character was such as to make him the aggressor in just such an affray.
    “,I hoped the jury would have acquitted the prisoner generally ; they, however, acquitted him only of the assault with intent to murder, hut convicted him of larceny. How they came to such inconsistent conclusions, I cannot tell.”
    
      The prisoner appealed, and now moved this Court in arrest of judgment, on the grounds :
    1. That the indictment contained no averment that the hank notes alleged to have been stolen, were genuine notes of the several banks by which they purported to have been issued, nor was the same proved.
    2. That the indictment contained no description of all or any of the bank notes alleged to have been stolen, by which the same could have been identified.
    3d. That the indictment contained no allegation, that all or any of the bank notes alleged to have been stolen, were bills issued by incorporated banks, or bodies corporate and politic, under the laws of this State, or of any other State, or of the United States, nor was the same proved.
    4. That the verdict being “ guilty of larcely only,” is too vague or unmeaning for any judgment to be entered upon it. '
    And failing in that motion, then he moved for a new trial, on the grounds:
    1. That there was no proof that the bank bills alleged to have been stolen, were genuine, nor that they were bills of incorporated banks.
    2. That the verdict was founded solely on the evidence of Thomas Hatcher, the prosecutor, who was, by his own showing, drunk, and incapable of reliable memory at the time of the alleged felony; and that his evidence, thus exceptionable in itself, was not only uncorroborated, but contradicted, or at least rendered highly improbable, by the testimony of other witnesses, some of whom were examined on behalf of the State; and it would be improper, unsafe, unjust, and of evil example, to suffer either life or character to be taken away or affected by such evidence.
    3. That there was no proof of any particulars or description by which the said bank notes could be identified, or from which it could be decided whether they were counterfeit or not.
    4. That the defendant was indicted for a single transaction, involving robbery, and an assault with an intent to murder; and this conviction of larceny only, in connexion with his entire acquittal on the indictment for assault, and assault with intent to murder, was inconsistent and absurd, and a gross violation of propriety, truth and justice.
    5. That the verdict was, in the foregoing, and other respects, contrary to law and evidence, and to the charge of the presiding Judge.
    
      Kunhardt, Yeadon, B. F. Porter, for the appellant,
    cited 1 N. & McC. 9; 2 Mill, 371; 1 Rice Dig. 40; 2 Hill, 609 ; 4 Bl. .Com. 239, note by C.; 3 Stat. 470; 3 Binn. 533.
    
      Hayne, Attorney General, contra.
   Curia, per

Evans, J.

The statute, (3 Stat. 470,) under which the prisoner was indicted, is in the following words: — “ If any person shall steal or take by robbery any bond, warrant, bill, or promissory note, for the payment, or securing the payment of any money, being the property of any other person or persons, or of any corporation, notwithstanding any of the said particulars are termed in law a chose in action, it shall be deemed and construed to be a felony, of the same nature and in the same degree, and with or without the benefit of clergy, in the same manner as it would have been if the offender had stolen or taken by robbery, any other goods of the like value with the money due on such bill, bond, warrant or note, or secured thereby and remaining unsatisfied.” The indictment in this case does not set out that the several sums of money due on the notes were unpaid, and it is not subject to the objection which was sustained in the State vs. Thomas, 2 M’C. 527. But it is contended that this indictment is defective, because it does not allege, first, that the bank bills were genuine; secondly, that they are the bills of some incorporated bank or body politic; thirdly, that there should have been such a minute description of the bills as would have identified and distinguished from other bills of the same banks. In relation to all these objections I have these remarks : 1st. That in charging an offence created by statute, it is, in general, sufficient to describe it in the words of the statute, which has been done in this case. -2d. That the form used corresponds with the most approved precedents in criminal pleading. The English statute is very much like ours, and in both Chitty and Archbold, no other description of the note or bill stolen is given but “ one bill of exchange,” “ one promissory note,” “ two bank notes for the payment of money.” 3 Chit. Or. L. 734; Arch. Cr. PI. 130. 3d. To charge that the bill was of the bank of Charleston, is, of itself, a distinct allegation that the bill is a genuine bill, for if it were a forgery, it would not be the bill of that bank. 4th. That the statute is general, and embraces all promissory notes, whether of individuals or corporations. A corporation is a factitious being created by law, capable of owning property and of making contracts like an individual, to the extent authorized by its charter: when tire indictment charges that the note stolen was the . note or bill of the bank of Charleston, or of any other bank, it is as fully described, as if it were alleged to be the promissory note of the President of the bank by name. 5th. That the law in relation to larceny requires nothing more than a general description, because, often' the thing stolen is never reclaimed from the thief, and a minute description would be impossible. I think, therefore, there is nothing in these objections to the indictment. As to the fourth ground, the uncertainty arising from the mis-spel-ling the word' larceny in the verdict, I shall say very little. There is no doubt as to what the jury meant, and the finding was published and recorded as larceny. This my brethren all believe is sufficient. I have some doubts about it myself.

The first and third grounds for a new trial, are the same as those made in arrest of judgment. I suppose there would be no doubt that to steal a forged bill would be no larceny. It would be of no value, and it would be the bill of no bank. That some evidence should be given that the bill was of value and genuine is very clear, but I have no idea that the same degree of evidence is required as would be in an action to recover the money due on a bond or note. This seemed to have been the opinion of the Judge who delivered the decision of the Court in Tillery's case, IN. & McC. 9. I suppose it was then as it is now, the reasons are the Judge’s who delivers the opinion — the decision is the Court’s. I was the solicitor who prosecuted that case, and remember well it was thought, at the time, that under that rule, it would be impossible, in most cases, to convict the thief, and that it required a degree of proof beyond what had been previously supposed to be necessary. For this, or some other reason, the case was never followed, and since I have been on the Bench, I do not remember to have heard Tillery's case quoted as authority, except as affirming the proposition that some evidence, satisfactory to the jury, should he given, that the notes were of value and genuine. Such evidence was, I think, clearly given in this case. The witness said he had been robbed of sixty-five dollars — some of the bills were of the Union bank, some of the Planters’s and Mechanics’s Bank, &c. He spoke of them as money. This, in the absence of any proof to the contrary, was sufficient evidence that they were the notes of those banks, and of the value which they bore on the face of them. For the reasons before given, no more minute description was necessary to be given or proved, nor was it necessary to prove that the bills were of any incorporated bank. This last notion is borrowed from the Acts for punishing forgery, wherein incorporated banks of this State, or any of the United States, are expressly named.

I come now to consider the remaining grounds, which allege a deficiency of reliable evidence to support the verdict of guilty. The general rule in this Court is, that where there is evidence sufficient, the weight of it is to be decided by the jury, but, of necessity, there must be exceptions to this general rule. Another general rule is, that where the presiding Judge is dissatisfied with the finding, that is a circumstance entitled to consideration in granting new trials. Now, in this case, the prisoner’s guilt is proved by the evidence of Hatcher alone, who, at the time of the occurrence, was certainly under the influence of liquor, and, at one time, seemed not to know who had committed-the act. I will not undertake to say, that a man is not to be believed who is partially intoxicated, or who has temporarily forgotten a fact whilst in a state of great bodily suffering, yet, where there is no confirmation, such evidence is subject to suspicion. The witness may be mistaken. The maxim of the law is, that it is better that many guilty should escape than that one innocent should suffer; and, whilst we are far from expressing the opinion that the prisoner is innocent, we think it consistent with the rules by which this Court is governed in like cases, that he should have a new trial: and it is so ordered.

O’Neall, Wardlaw, Frost, Withers and Whitjner, JJ. concurred.

New trial ordered.  