
    Moore v. The Commonwealth.
    June, 1830.
    Criminal Law — Confessions — When Admissible Evidence — Case at Bar. — If a threat be made, or promise held out, to a person in custody on a charge of felony, to induce him. to make confession, and he denies his guilt at the time, but afterwards makes a confession, which appears, from the time and circumstances, not to have been induced by such previous threat or promise, this confession, so afterwards made, is a voluntary one, and proper evidence against him on his trial.
    Same — Larceny of Bank Notes — Production of Notes.— In an indictment for larceny of bank notes, it is not indispensably necessary to produce the stolen notes upon the trial.
    Moore was indicted and tried, in the circuit court of Shenandoah, for stealing- bank notes of the farmers’ bank of Virginia, of the value of thirty dollars, the property of William Eauck. Verdict, guilty: sentence, imprisonment in the penitentiary for the term ascertained by the jury.
    "Upon the trial, the prisoner tiled a bill of exceptions, stating, in substance, That William Eauck a witness for the commonwealth, testified, that having locked up in his store house, four farmers’ bank notes amounting to thirty dollars, he missed the notes on his return to the store the next morning; and, believing they had been stolen during the night, he directed Peter Eauck, a boy who assisted in the store, to make a search for them; but the witness left home before they were found: that he returned in the evening of the same day, and was informed, that Peter Eauck had found some bank notes and silver, in a pair of pantaloons of the prisoner, hid in the hay in a stable, and that the prisoner had been arrested: that the prisoner was carried before a magistrate, after dark, the same evening; the witness was present; and the prisoner confessed before the magistrate, that he had taken the money from the witness’s store house; and at the time this confession was made, no threats were made against the prisoner, and no promises to induce him to make the confession: that the prisoner, at the time of the theft, was in the service of the witness: that when the witness was before .the magistrate, he was called upon to describe the bank notes; whereupon he said, he remembered there were two ten dollar notes, and two five dollar notes of the farmers’ bank, but he could not describe them more particularly; notes were then produced, answering that description, and delivered to the witness by the justice; upon which the witness testified, that he could not swear to the identity of the notes, but he believed them to be his, and he also believed them to be genuine notes of the farmers’ bank. The notes were not produced at the trial, and there was no proof that they had been lost or destroyed: the witness said, he had passed them off, and did not know where they were. Peter Eauck testified, that in the course of the morning after receiving the directions from William Eauck stated in his testimony, he found a pair of pantaloons hid in the hay in W. Eauck’s stable, where the prisoner attended; the pantaloons belonged to the prisoner; and in the pocket, *he found the four bank notes, which were exhibited before the justice, and then delivered to W. Eauck, and also some silver coin. The prisoner then introduced a witness, J. Aleshire, who testified, that after Peter Eauck found the pantaloons and money, the witness apprehended the prisoner, and charged him with having stolen the money; the prisoner denied it; Aleshire said to him, “you had as well confess it, for it will be worse for you if you do not,” or words to that effect; but the prisoner still denied that he had stolen the money: that Aleshire then confined him in a room, and went to him, about two hours afterwards, shewed him the money and notes which had been found, and asked him, “how much silver did you get?” The prisoner answered, “it was all together.” Aleshire asked, “how did you get into the store?” The prisoner answered, “the door was not locked; I went in and got the money,” or words to that effect; which was all that passed between this witness and the prisoner at that interview. Upon this state of the testimony, the prisoner moved the court, 1. to exclude the evidence of the confession of the prisoner before the magistrate, stated in the testimony of the witness William Eauck; but the court overruled the motion, and admitted the evidence of confession: 2. to instruct the jury, that as the bank notes mentioned in the indictment, were not produced at the trial, nor shewn to have been lost or destroyed, and as it was not shewn, that the prisoner had, by any act of his, prevented the production of them, the jury could not, under such circumstances, convict the prisoner; but the court refused to give the instruction. To which opinions the prisoner’s counsel excepted.
    And now, he presented a petition to this court, for a writ of error to the judgment.
    Philip Williams argued, for the petitioner,
    1. That the confession made by him to the witness Aleshire, was induced by a previous threat and promise made by Aleshire, and could not be admitted as evidence;
    and if that confession *was inadmissible, on that ground, all subsequent confessions should be excluded; since the motive that led to the first confession, might have continued to operate afterwards; and it ought to be supposed, that it did so operate, unless some caution or warning had been given the prisoner, in the interview between the first and second confession. See Stark, on Ev. (Boston edi. of 1828), part IV. vol. 2, p. 49, and seq. and the cases there cited; East’s C. R. 6S8; Thompson’s case, 1 Reach, 293.
    2. That the bank notes ought to have been produced at the trial, to ascertain, 1. their identity, and 2. whether they were genuine. If they were not genuine, they were of no value, and no offence had been committed: the notes ought to have oeen produced to prove the value, and then it would have appeared whether they were genuine or counterfeit: and no evidence of the value, but the notes themselves, ought to have been received, unless the production of them had been rendered impossible by the act of the prisoner himself, or by accident, or unless they had been passed away by him as genuine. Cummings’s case, 2 Virg. Ca. 128; Pomeroy’s case, Id. 342.
    
      
      Criminal Law — Confessions—When Admissible in Evidence. — On this subject, see monographic note on “Confessions’' appended to Schwartz v. Com , 27 Gratt. 1025.
    
    
      
      Same — Larceny of Bank Notes — Production of Notes.
      —See principal case cited in Kirk v. Com., 9 Leigh 631.
      On the subject of larceny, see generally, mono-graphic note on "Larceny” appended to Johnson v. Com., 24 Gratt. 555.
    
   BROCKENBROUGH, J.,

delivered the opinion of the court. The first question is, Whether, under the circumstances of the case, the circuit court erred, in refusing to exclude the prisoner’s confession made before the justice of the peace, stated in the testimony of W. Rauck? When the confession was made before the magistrate, there were no threats or promises made. This confession, therefore, was at the time, perfectly voluntary. But it is contended by the prisoner’s counsel, that as he proved that a previous threat had been made by Aleshire, the confession made before the magistrate must be understood to have been induced by7 that threat. It is unnecessary to discuss the question, whether, when a confession has once been induced by the improper influence of a threat, or promise, all subsequent confes-sidns of the same facts ought to be excluded, because this case *does not come within such a rule. When Aleshire made the threat (admitting what he said was a threat) the prisoner did not confess, but persisted in denying his guilt, as he had done when first arrested. It was not until the expiration of two hours, nor until the money and notes were shewn to him, that he made any confession. Thus, the first confession does not appear to have been extorted from him by the threat, but rather to have been produced by the sight of the notes and money in the hands of a third person. It was, probably, the result of his own reflection on the facts, that the notes had been found in the pocket of his pantaloons, which had also been found concealed in a place to which he himself had constant access. He most probably thought it useless any longer to deny the fact, as the circumstances were now so strong against him. The court was justified in believing, that the first confession was voluntary, and a fortiori the second, which was not made till the lapse of some further-time. We are of opinion, that the evidence was properly admitted.

The second question is, in effect, whether, in every prosecution for the larceny of bank notes, it is necessary for the conviction of the prisoner, that the notes should be produced on the trial? Conceding, for the sake of argument, that, in prosecutions of this kind, the jury cannot convict, unless they are satisfied that the stolen notes are genuine, we yet deny, that the production of them is indispensable to prove that fact. Indeed, it seemed to be admitted by the prisoner’s counsel, that if they are lost or destroyed, or if the prisoner prevents the production of them, they need not be produced. If the production of them be indispensable, it is not easy to perceive, how the loss or destruction of them obviates the necessity. It is the province of the jury to judge of their genuineness, by the evidence. If they are not produced, that circumstance weakens the proof, and may put at hazard the conviction of the accused: but though it may diminish the weight of the evidence, the non-production of the notes does not destroy the competency of the *other evidence adduced ' to prove them to be of value. If they are produced, it has never been held necessary to prove by the officers of the bank, that they are genuine. If such was the law, it would be impossible to carry on prosecutions for larceny of bank notes in the various counties of the commonwealth. Resort must be had to the evidence of persons, accustomed, in the way of trade, to receive and pay them away, and the non-production of them does not prevent such evidence from being given. In this case, the witness, William Rauck, had seen and owned them: he not only believed them to be genuine, but the act of receiving and paying them away, as things of value, proved that his belief was real. The other two witnesses had seen them; and the magistrate, who re-delivered them to their owner as things of value, had also an opportunity of ascertaining whether or not they were genuine. It was competent for the commonwealth to introduce such evidence, which though not so full, yet was of the same kind as that which might have been' given, if the notes had been before them.

It is a case of frequent occurrence, in prosecutions for larceny at common law, that the jury are required to decide on the value of the article stolen: on that value depends the question, whether the offence be grand or petit larceny, and consequently the degree and kind of punishment to be inflicted; and the jury are to ascertain that value. Suppose the article stolen to be flour in barrels: must the flour be brought into court, in order that the jury may judge of its value? It has never been deemed necessar37. The evidence must prove, that the person charged, feloniously took and carried away the article stolen ; and as to the value, witnesses must be called to prove it; which may be done, though it has been restored to the owner, and he has parted with the possession of it.

We are of opinion, that the non-production of the notes, furnished no reason why the court should have given the instruction that was asked for.

Writ of error denied.  