
    Burr v. The Commonwealth.
    1847. June Term.
    
    On a trial for larceny in a hotel, it is competent for the Commonwealth to prove the presence of the prisoner in the hotel on the night when the larceny was committed, and his acts and conduct there, and the circumstances attending his arrest, as a part of the whole transaction; though these acts amount to an attempt to commit a felony on another person, in another part of the hotel.
    The prisoner was indicted in the Circuit Court of Henrico and the City of Richmond, for larceny in stealing a gold watch, three five dollar notes of the Bank of Virginia, and two dollars in silver coin, the property of Benjamin F. Dabney. On the trial, Dabney stated that he came to Richmond and put up at the Union hotel: That on going to bed, he put his watch on the mantelpiece in his room, and his purse with the money described in the indictment therein, was left in his pocket on a chair: That in the morning, he discovered that his watch and purse, with its contents, were gone, and that being informed shortly thereafter by a servant that a robber had been taken in the house that morning, he went to the cage, where he found the prisoner; that the prisoner was, by direction of the mayor, taken into a room to be searched, and in a short time one of the officers came back and brought with him something like an old stocking having many things in it, and upon its being emptied, his watch and three five dollar notes of the Bank of Virginia were taken therefrom. The Commonwealth then introduced another witness, who stated that he occupied a room in another part of the Union * hotel, on the same night in which the watch and money of Mr. Dabney were stolen; that about 2 o’clock in the morning, he was disturbed by some one attempting to open his door, which he had on going to bed locked on the inside. And the witness was proceeding to state more on this subject, when he was stopped by the counsel for the prisoner, who moved the Court to exclude as evidence from the jury, proof of any acts done, or attempts made by the prisoner to commit any other felony on the night in question, and especially any such acts done, or attempts made to commit a felony on any other person, or in any other part of the said hotel. But the Court overruled the motion, and held that it was competent for the Commonwealth to prove the presence of the prisoner in the hotel on the night in question, and his acts and conduct therein, and the circumstances attending his arrest; not for the purpose of establishing another and distinct felony, but as a part of the whole transaction. To this opinion of the Court, the prisoner excepted.
    The jury found the prisoner guilty, and fixed the term of his imprisonment at three years, and judgment was accordingly : whereupon, he applied to this Court for a writ of error.
    
      R. G. Scott, for the prisoner.
   By the Court.

The writ of error is refused.

Lomax, Christian, Gholson and Scarburgh, J’s, dissented from the judgment refusing peremptorily at this time, the writ of error. Without meaning at this timte to express any opinion upon the sufficiency of the alleged errors to reverse the sentence of the Circuit Court, they deem it a proper case for a more solemn consideration, after awarding the writ of error, and when the proceedings upon the writ shall have been matured. They do not regard the case so plain upon the record, that the prisoner should be precluded from such a consideration of the errors alleged.  