
    Uhl als. v. The Commonwealth.
    1849. December Term.
    
    1. An indictment under the act of 1848, Sess. Acts, ch. 11, § 12, p. 123, for an attempt to burn a barn, held to be good.
    
    2. Upon the examination of a witness called to impeach the credibility of another witness, the party seeking to impeach the witness, not allowed to ask what is the general character of the witness in relation to other matters, as well as to his veracity.
    3. A record of the conviction of a witness for petty larceny, in another State, is not admissible evidence to impeach the veracity of the witness.
    4. On an indictment against several for an attempt to burn a barn. Held :
    l.lThatan attempt, according to the true intent and meaning /of the statute, can only be made by an actual, ineffectual / deed done in pursuance of, and in furtherance of, the design I to commit the offence.. But if the parties combined to commit the offence, and they all assented to it, and a part of them only went to do the act; those who were absent knowing with what intent the others went to the place, and assenting to the same, are principals in the offence.
    2. The overt act done in the attempt to commit the offence, need not be the last proximate act prior to the consummation of the felony attempted to be perpetrated.
    5. Where a wife acts in the furtherance of a combination to commit a felony, in the presence of her husband, she will be presumed to have acted under his coercion. But if the circumstances shew that she was not acting under such coercion, but of her own free will, then she is accountable for her acts.
    
      George Uhl, Robert Pugh, and Mary Pugh his wife, and six other persons, were indicted in the Circuit court of Wood county, at its May term 1849, for an attempt to burn the barn of George W. Henderson. The indictment contained four counts. The first count charged that George Uhl &c. of the county of Wood, being persons of wicked disposition, and unlawfully and maliciously devising, contriving and intending to feloniously set fire to, and bum and consume a certain barn belonging to George W. Henderson, of said county, on the 20th day of August 1848, at the county aforesaid, unlawfully, wilfully, and maliciously did, about twelve o’clock of the night of the said day, attempt to set fire to the said barn of the said George W. Henderson, by then and there carrying live coals of fire in a certain tin cup, then and there held by them, the said George Uhl &c., and then and there putting and placing the said live coals of fire, which they, the said George Uhl &c., then and there had in their possession, in manner aforesaid, to, at, and against the straw, chaff, and other combustible matter in, about and against said barn, with a wicked intention by means thereof, unlawfully, wilfully, and maliciously to burn and consume said barn of him, the said George W. Henderson, to the great damage &c.
    The second and third counts were substantially the same with the first, except that they charged a felonious intent to set fire to the barn and to burn the same. The fourth count charged, that George Uhl &c., a certain other barn &c., did, on &c., unlawfully, wickedly and maliciously attempt, then and there, feloniously to set fire to, bum and consume, to the great terror and fear of all the citizens of the Commonwealth, and to the great damage &c.
    
    At the September term of the Court, the defendants appeared and moved the Court to quash the indictment, and each count thereof, for errors apparent upon its face; but the Court overruled the motion.
    
      On the trial, the counsel for the defendants introduced a witness for the purpose of invalidating the testimony of Jacob Fulk, a witness introduced and examined on the part of the Commonwealth, on account of his general bad character; and a controversy arising between the counsel for the defendants and the attorney for the Commonwealth, as to the manner of putting questions in relation to the character of Fulk, the matter was referred to the Court: And the Court decided that the counsel for the defendants might ask the witness whether he did, or did not know, what was the general character of the said Fulk among his neighbours and acquaintances ; and if the witness answered that he did, then the counsel might ask what was the general character of the said Fulk for truth among his neighbours and acquaintances, whether upon oath or otherwise; and if the witness answered that it was bad in either respect, and the counsel for the defendants chose further to ask whether, from the witness’s knowledge of the general character of said Fulk, he would, or would not, believe him when upon oath, the witness in answering-might take into consideration the whole moral character of the said Fulk, as well as his character for truth and veracity. The counsel for the defendants contended that they had a right to ask what the said Fulk’s general character was, for other things as well as for truth; and thereupon asked the witness what was the said Fulk’s general character in relation to other matters as well as to his veracity. To this question the attorney for the Commonwealth objected; and the Court sustained the objection, and confined the question and answer to said Fulk’s general character for veracity, as stated in the second question above stated. And to the opinion of the Court, refusing to permit this question to be asked, the defendants excepted.
    The defendants further, for the purpose of discrediting the witness Fulk, offered in evidence the record of his prosecution and conviction in the State of Ohio, for petty larceny, but the Court excluded the evidence: and the defendants again excepted.
    After the evidence had been submitted, the defendants moved the Court to instruct the jury, That before they can convict the defendants, they must be satisfied that the defendants had done an act or acts in the attempt to commit the offence; and that none of the defendants who were not proved to have been present at the place where the attempt to burn is alleged to have been made, can be found guilty. And that according to the true intent and meaning of the law, an attempt can only be made in point of law, by an actual ineffectual deed done, in pursuance of and in furtherance of the design. And they moved the Court further to instruct the jury, That to prove the offence charged against the defendants, they must be satisfied from the evidence, that there was an actual overt act done by the defendants, or either of them, to consummate the felony charged to have been attempted to be done by them, towards the burning the barn of the said G. W. Henderson, and that they failed in said attempt, or were prevented or intercepted in the execution of the same ; and that act must be the last proximate act prior to the consummation of the felony attempted to be perpetrated.
    Tire Court refused to give the first instruction asked for; but instructed the jury, that to convict the defendants, they most have done an act or acts in the attempt towards the commission of the offence. That an attempt, according to the true intent and meaning of the statute, can only be made by an actual ineffectual deed done in pursuance of and in furtherance of the design. But that, if the defendants combined on the night on which it is charged the attempt was made to burn the barn, to burn said barn, and they all assented to it, and a part of them only went to the barn, those who were absent, knowing with what intent the others went there, and assenting to the same, and that those who went there, went in pursuance of and with the intention of carrying into effect the said combination, and did attempt to commit the offence of burning said barn, and in such attempt did do any act towards the commission of the said offence, but failed in the perpetration of such offence, or were intercepted or prevented in the execution of the same, then all persons engaged in the said combination, and assenting to the doing of the act, are to be regarded as principals.
    The Court also refused the second instruction as asked for; and instructed the jury, that to constitute the offence charged, there must have been an actual overt act committed by the defendants, or some one or more of them, to effect the burning of the barn, and that they failed in the attempt, or were prevented or intercepted in the execution of the same. But such actual overt act need not be the last proximate act prior to the consummation of the felony attempted to be perpetrated. To the opinion of the Court refusing the instructions asked for, and giving those that were given by the Court, the defendants excepted.
    It appeared on the trial, that the defendant Mary Pugh, the wife of Robert Pugh, was present on the night when the combination was entered into, by the defendants, to burn the barn; that she assented and agreed to it; and was active in making the preparations for going to do the act, but she was not present at the barn; that her husband was present whilst she was so engaged. And thereupon the said Mary Pugh, by her counsel, moved the Court to instruct the jury, that in point of law, the said Mary could not be found guilty upon the evidence in the case. This instruction the Court refused to give; but instructed the jury, that if they believe that the acts which she did were in the presence of her husband, and nothing appeared in the evidence or circumstances to shew whether she was acting under his control and coercion, then the law will raise the prima facie presumption that she acted under such coercion and control; and she will not he guilty. But if they believe the facts and circumstances transpiring at the time, shew she was not acting under such coercion and control, hut that she acted from her own free and uncontrolled will, then if the evidence proves her guilty of the offence charged, she will be responsible to the law. To the opinions of the Court refusing the instruction asked for, and giving that which was given by the Court, this defendant excepted.
    The jury found all the defendants guilty; and they were sentenced to confinement in the jail of the county, some of them for twelve and some for six months. And thereupon they applied to this Court for a writ of error.
    
      
       See the act. Note to Clark's Case, supra 675.
      
    
    
      
      
        Quœre. If this fourth count is not had? See Clark’s Case, supra 675.
    
   By the Court.

The writ of error is refused.  