#### *Livingston v. The Commonwealth.

June Term, 1851.

Cause Submitted to Jury—Admission of Evidence after —Discretion of Court.*— Althousrli as a general rule it is improper after a cause has been submitted to the jury, to introduce new testimony or examine new witnesses ; yet for good cause it may be done. In such case the Court must exercise a sound discretion ; and when the circumstances of the case make it necessary, either party should be permitted to introduce new testimony and new witnesses.

George Lfivingston was indicted in May 1851, in the Circuit court of Petersburg, for larceny in stealing three gold chains and a ring, of the goods of John B. Stevens and Thomas R. Hopkins, jewellers, in the city of Petersburg, trading under the firm of Stevens & Hopkins.

After the evidence had been introduced, the counsel for the prisoner in his argument before the jury, insisted that the gold chains and the ring charged in the indictment to be the property of John B. Stevens and Thomas R. Hopkins, jewellers, in the city of Petersburg, trading under the firm and style of Stevens & Hopkins, had not been proved to be the property of said Stevens & Hopkins, as laid in the indictment. And the attorney for the Commonwealth in his reply to that part of the argument, contended that it had been so proved. The jury retired, and not being able to agree in their verdict, were adjourned over to the next day; and upon being brought into Court the next morning, the counsel for the prisoner moved the Court to instruct the jury, “that if they believe from the evidence that the Commonwealth has failed to prove the existence of the copartnership of Stevens & Hopkins, and that the property was in them as partners as alleged in the indictment, then they must acquit the prisoner, the burden' of proof being on the Commonwealth to shew these facts.” Whereupon the attorney for the Commonwealth proposed *to call upon John B. Stevens, one of the witnesses examined on the day before, to prove more explicitly the ownership of the property as laid in the indictment. To the' introduction of this proof or any other at this stage of the trial, the prisoner objected ; but the Court overruled the objection, and permitted the said Stevens to be again examined: And he proved that the gold chains and the ring were the property of Stevens & Hopkins as laid in the indictment. The Court thereupon refused to give the instructions asked for by the prisoner in the form in which they were propounded, but instructed the jury “that if they should believe from the whole evidence in the cause, as well that given in on yesterday as that given in to-day by the said Stevens, that the Commonwealth had failed to prove that the gold chains and ring or any part of them, were the property of John B. Stevens and Thomas R. Hopkins, jewellers, in the city of Petersburg, trading under the firm of Stevens & Hopkins, as laid in the indictment, then they ought to find the prisoner not guilty; it being incumbent on the Commonwealth to prove the ownership as laid in the indictment. ” And *334the Court certified the evidence given in on the day before, from which it was obvious, that if the joint ownership of the property and the. partnership of Stevens & Hopkins were not proved by the witnesses, it was only because the fact was not made a question. The witnesses were Stevens and two of the clerks in the shop. The clerks proved a taking from the shop; they proved that not knowing the price of a chain which the prisoner was proposing to buy, one of them was sent by the other to ask Mr. Hopkins the price, he being in another room. And when Mr. Stevens came into the shop, he was immediately informed that the prisoner had taken a gold chain, and he, and the witness by his directions, went in pursuit of him.

*The prisoner excepted to the opinions of the Court admitting the evidence and refusing the instruction as asked. And the jury having found him guilty, and fixed the term of his imprisonment in the penitentiary at eighteen months, and the Court having given judgment against him accordingly, he applied to this Court for a writ of error.

*

Admitting Evidence after Argument—Discretion of Court.—See, on this subject, *foot-note*to McDowell v. Crawford, 11 Gratt. *371.*Tie principal case is cited in the following: Taylor v. Com., 77 Va. 694; Schonberger v. Com., 86 Va. 492, 10 S. E. Rep. 713; Hunter v. Snyder, 11 W. Va. 213 ; Burns v. Morrison, 36 W. Va. 426, 15 S. E. Kep. 64 : *foot-note*to Armstead .V. Com., 7 Gratt. 599.

FIFBD, J.,

delivered the opinion of the Court.

The prisoner was indicted in the Circuit court of Petersburg for larceny. He was convicted and sentenced to be confined in the penitentiary for eighteen months.' The larceny consisted in stealing certain jewelry from John B. Stevens and Thomas R. Hopkins, jewellers, in the city of Petersburg, trading under the firm of Stevens & Hopkins. After the testimony had been given in upon the trial, and the arguments of counsel heard, the jury retired to consider of their verdict, and not being able to agree upon a verdict on the first day, they were brought into Court and adjourned over in the usual way, until the next day. On the next day they appeared in Court pursuant to their adjournment, and the counsel for the prisoner asked the Court to instruct the jury, “that if they believed from the evidence, that the Commonwealth has failed to prove the existence of the copartnership of Stevens & Hopkins, and that the property was in them as partners, as alleged in the indictment, then they must acquit the prisoner, the burthen of proof being on the Commonwealth to shew these facts.” The Attorney for the Commonwealth then proposed to recall John B. Stevens, one of the partners, who had been examined the day before, to be examined more fully upon these points. The Court permitted him to be recalled. He was re-examined and proved that the stolen articles belonged to Stevens & Hopkins. The prisoner complains *of this, and assigns it as one of the grounds for reversing the judgment. Whilst we have no hesitation in saying that, as a general rule, after a cause has been submitted to a jury, it is improper to introduce new testimony or examine new witnesses, there can be no doubt of the propriety for good cause shewn of admitting new testimony, or the examination of new witnesses. But in allowing this to be done, the Court must exercise a sound discretion. When the circumstances of the case make it necessary and proper to do so, the Court ought to permit either party to introduce new witnesses and new testimony. But the case before the Court is not altogether a case of that sort; after the cause had been committed to the jury, it was the prisoner who called upon the Court to give an instruction, based no doubt upon a failure through inadvertence on the part of the prosecuting attorney, to examine the witness upon the right of property. The existence of the partnership was no doubt a matter of general notoriety throughout the city of Petersburg; so notorious as to cause it to be taken for granted as a fact already proved in the cause, and hence the tendency of the instruction was to get an unfair advantage of the Commonwealth, and defeat the claims of justice. The court to prevent this, allowed one of the partners who had been examined the day before, to be recalled and examined. In doing this, the Circuit court under the circumstances of the case, exercised its discretion properly. Having heard the witness, the Court then refused to give the instruction asked for by the prisoner, but instructed the jury “that if they should believe from the evidence in the cause, as well that given in on yesterday, as to-day by the said Stevens, that the Commonwealth had failed to prove that the gold chains and ring, or any part of them, were the property of John B. Stevens and Thomas R. Hopkins, jewellers, in this *city, trading under the firm and style of Stevens & Hopkins, as laid in the indictment, they ought to find the prisoner not guilty; it being incumbent on the Commonwealth to prove the ownership, as laid in the indictment.” This instruction was more favourable to the prisoner than the one he had asked for. For according to this instruction, although the jury might believe from the evidence that a part of the stolen goods were proved to be the property of Stevens & Hopkins; yet, if there was a failure in proof of their title to any part of them, the jury was bound to find the prisoner not guilty. We can perceive, therefore, no error in this record, of which the prisoner has any right to complain.

Writ of error refused.