#### *Earhart v. Commonwealth.

December, 1889.

Criminal Law — Burning Woods — Indictment—Record of Finding* — Sufficiency.—Indictment for unlawfully, wilfully and maliciously setting fire to the woods near the plantation of A. M. and burning said woods and a fence belonging to said A. M. is described, in the record of the finding, as an indictment “for setting fire to the woods and burning the same:” Hnun a sufficient record of the finding.

Same — Confessions—Admissibility as Evidence for Accused† — Case at Bar — On the trial of a criminal canse, a witness Cor the commonwealth proves, that having, in a conversation with the accused, expressed his entire conviction of a particular fact, the accused admitted the fact (which, in its nature strongly tends to establish his guilt) but made an explanatory statement (which, if taken as true, will exculpate him). The accused then oilers to prove, that he had previously, and under different circumstances, made the same declaration to another person: Held, such evidence is inadmissible.

Misdemeanour — Limitation of Prosecution — Presumption in Appellate Court. — After a verdict of conviction for misdemeanour, an apellate court will presume that the oifence was proved to have been within the period of limitation, where the record does not shew the contrary.

Writ of error to a judgment of the circuit superiour court of law and chancery for Wythe county.

The record of the case (as certified to this court) commences by stating that on the 10th day of April 1838, the grand jury appeared in court according to their adjournment, were sent out of court, and after some time returned, and presented “an indictment against John Earhart for setting fire to the woods and burning the same, a true bill.” The indictment was as follows : “Virginia, Wythe county to wit: The grand jurors impanelled in the circuit superiour court of law and chancery held for said county the 9th day of April 1838, upon their oath present that John Earhart late of the county aforesaid, on the 19th day of April 1837; at the county aforesaid and within the jurisdiction of the circuit court aforesaid, did unlawfully, wilfully and maliciously set fire to the woods near the plantation of Alfred C. Moore, which woods and plantation are in the *county aforesaid and within the jurisdiction of the circuit court aforesaid, which fire so set to said woods did burn said woods and a fence belonging to the said Alfred C. Moore ; which act of the said John Earhart in setting fire to the said woods in manner and form aforesaid, and burning said woods, is against the form of the act of assembly” &c. Neither the fact that the grand jury was sworn, nor the adjournment referred to in the entry of the 10th April, is anywhere expressly stated in the record.

The defendant pleaded not guilty to the indictment; and at September term 1838, a jury being impanelled for the trial of the case, returned a verdict finding him guilty, and assessing his fine at 80 dollars. He moved the court to set aside the verdict and grant him a new trial; which motion was overruled. He then moved to arrest the judgment, “for the following reasons : 1. It does not appear that a grand jury ever found an indictment against him for unlawfully, wilfully and maliciously setting fire to the woods. 2. It does not appear by the record, that a grand jury eve’r found an indictment against him for unlawfully, wilfully and maliciously setting fire to the woods. 3. It does not appear by the record, that the *236defendant was ever indicted for the offence for which he has been tried and convicted, neither does it appear that he was indicted for any offence against the penal laws of the commonwealth.” The court overruled this motion also, and gave judgment against the defendant, for the fine assessed by the jury, and the costs of prosecution, and that he be imprisoned in the jail of the county for the term of two months.

To the opinion of the court overruling his motion for a new trial, the defendant excepted, and set forth in his bill of exceptions all the facts proved before the jury. The conclusions drawn by the jury and the circuit court from the evidence (which was wholly circumstantial) were sustained, as will be seen, by the opinion of *this court: and it is deemed unnecessary to detail the contents of the bill of exceptions, farther than may suffice to explain the other points decided in the cause.

The bill of exceptions states that “on the-day of-1837,” the woods were discovered to be on fire near Alfred C. Moore’s plantation: the time is nowhere, in the statement of the evidence, fixed to a particular day, or even month. Immediately upon the discovery of the fire, and near the spot where it was supposed to have been communicated to the woods, a fresh track of human feet was observed. This track, it was found, entered a wagon road at the defendant’s fence, within 50 or 60 yards of his dwelling house, and proceeded along that road and an old path, to the point at which the fire was supposed to have been communicated, and thence, along the same path and wagon road, back to the defendant’s fence, near the place from which the track leading in the direction of the fire had been traced. After giving, at great length, the evidence of Moore and several other witnesses, the bill of exceptions proceeds in the following terms :

“Another witness stated that the defendant was at his the witness’s house, and they had a conversation about the burning of the woods. The witness had also seen the track before spoken of. He asked the defendant to clear himself about the track. The defendant, at the time, was sitting in such a position that the witness could see the soles of his shoes. The witness said to the defendant, ‘Earhart, I will swear point blank that these shoes made those tracks;’ meaning the shoes then on the defendant’s feet. The defendant then said, that he had seen smoke rising from the place where the fire broke out, and went up to see where it was ; that he had gone to the fire, and returned from it, along the wagon road and path spoken of ; that he had returned with an intention of getting his horse and going to Moore’s house, to inform him of the fire ; that immediately *after his return from the fire, and before he had caught his horse, Moore passed along his lane.” (In the testimony given by Moore, he had stated, that immediately after his arrival at the fire, he left it for the purpose of obtaining the aid of his neighbours, and passed through the defendant’s lane near his house; that the defendant was in a passage or porch of his house, and called aloud to Moore, two or three times, “Where are you going in such a hurry?” to which Moore made no answer, although he distinctly heard him.)

“The defendant offered to prove by a witness, that he had, the day after the fire took place, and at a different time from that of the conversation aforesaid, told him the same thing that was proved by the last named witness : not for the purpose of proving the facts disclosed by the defendant, but to shew that the defendant had been consistent in all he had said in relation to the matter. The court refused to permit the evidence to go to the jury : to which opinion no exception was taken.

“ The defendant asked a new trial, for the following reasons : 1. The verdict is not sustained by the evidence. 2. The court ought not to have rejected the evidence offered by the defendant as aforesaid. 3. If the evidence was not proper for the purpose for which it was offered, yet as the counsel for the commonwealth had contended before the jury, that the first time the defendant had acknowledged that he was at the fire, and that he had gone and returned along the wagon road and path before mentioned, was after he had been informed by a witness that he would swear that the tracks heretofore spoken of were made by the defendant’s shoes, — and that the acknowledgment of the defendant was a shift to destroy the force of the supposed evidence; the rejected evidence was proper, for the purpose of rebutting and destroying the inference which *might be drawn from the supposed fact, by shewing that the defendant had said the same thing before, and under different circumstances.”

At December term 1838, the defendant applied by petition to this court for a writ of error to the judgment; which was awarded.

And now the cause was argued by R. C. Stanard for the plaintiff in error,

and the attorney general for the commonwealth. In addition to the points noticed in the opinion of this court, Stanard took the objection, that the record does not shew that the grand jury which found the indictment was sworn.

*

indictment — Record of Finding. — See *foot-note*to Vance v. Com., 2 Va. Gas. 162.

†

Confessions — See monographic *note,*on “Confessions” appended to Schwartz v. Com., 27 Gratt. 1025.

ERY, X,

delivered the opinion of the court. —Considering, first, the motion in arrest of judgment; the indictment to which the defendant pleaded, follows the act of assembly on which it is founded, and sufficiently set forth an offence within the same. The motion is directed against the record of its finding; and the question is, whether that record sufficiently shews that it was found ? We think it does. The party to the indictment, and the subject of it, are expressly found and recorded ; nor was it necessary, in describing the indictment, to use the technical terms in which the offence is charged. Tefft v. Commonwealth, 8 Leigh 721; Myers v. Commonwealth, 2 Va. Cas. 160.

As to the motion for a new trial, the court below did not err. The evidence, though circumstantial, warranted the finding, in the opinion of the jury and of the judge who presided. It was for the jury, not the court, to weigh the evidence; nor should the latter *237disturb the verdict unless in a case of clear departure from it. Bennet’s case, 2 Va. Cas. 238. We cannot say there was any such departure here. Even though a court should think that a different verdict might have been rendered, and, as a juror, might have rendered such, it does not *follow that it must grant a new trial. To do so would transfer the functions of the jury to the judge, giving an appeal to him, in all cases, upon the facts.

We do not think there was any thing in the confession of the defendant which required, of necessity his acquittal. If it was inconsistent with the supposition of his guilt, there was enough in the other evidence to warrant the jury in disregarding it in part; and this they might do under the position taken by the plaintiff’s counsel, that a confession must be taken to be true in all its parts, unless there be something in the terms of it, or the circumstances attending it, or the other evidence, to discredit it in part. And according to the case of Shadrack Brown,* decided by this court at December term 1838 (3 Rob. Pract. 207,) the jury are to weigh confessions, like other evidence, and believe or disbelieve them, in whole or in part, as reason may decide; and if, from opposing evidence, or the confession itself, facts appear which are sufficient to satisfy a rational mind that a part is not true, it ought to be rejected.

As to the rejection of the evidence, we think there was no error in refusing a new trial on that ground. There was no exception to the opinion excluding it. And when asked for a new trial on account of such evidence, the court is at liberty to consider its value or importance. In this case, we do not think the rejected evidence is of such weight, that a new trial ought to be granted for the purpose of letting it in. Besides, a majority of the court are of opinion that the evidence was not admissible for the purpose for which it was offered; namely, to prove the defendant’s consistency in what he had related. There was no attempt to prove any inconsistency in his relations of the matter. And though we are not prepared to say that the previous declarations *of a party, to the same purport with subsequent ones proved against him, may not be given in evidence to repel any just inference which might be urged against him from the time only at which the latter were made, we do not perceive that such declarations were necessary or proper for such purpose in this case.

It was said in argument, that a new trial should be granted because it does not appear that the offence was committed within twelve months before the indictment was found. Apparently, this objection is made for the first time here. It does not appear to have been made below, either before the jury or the court. The time laid in the indictment is within the period limited for the prosecution ; there is a verdict of guilty ; and it does not appear from the evidence, that the time of the act was without the period of limitation. We cannot say, therefore, that there was error. We cannot say that the indictment was not within twelve months from the time of the offence. Doubtless it was shown to be within the twelve months, and the blank in the bill of exceptions was merely accidental. In a case like the present, we think the party should in some manner have relied on the statute, or claimed the benefit ol it.

Judgment affirmed, with costs.