TRIAL OF HENRY B. ALLISON.

HON. JOHN S. CASKIE, JUDGE.

*In the Circuit Court of Law for Henrico, County. Criminal Term.*

#### Commonwealth vs. Henry B. Allison, Joseph Dowell and John Clare.

April 21, 1851

For the Prosecution. J. R. Young.

For the Prisoner, William W. Crump.

The Prosecution was founded on Section 15, Chapter 192, Code of Virginia. Page 729.

Sec 15. “If any free person steal any bank note, check or other writing, or paper of value, or any book of accounts for, or concerning money, or goods due or to be delivered, he shall be deemed guilty of larceny thereof, and receive the same punishment according to the value of the thing stolen, that is prescribed for the punishment of larceny of goods or chattels.”

Sec. 16. “ In a prosecution under the preceding section, the money due on or secured by the writing, paper or book, and remaining unsatisfied or which in any event might be collected thereon, or the value of the property or money affected thereby, shall be deemed to be the value of the article stolen.”

The indictment charged the three persons jointly, with stealing, taking and carrying awa.y, bank notes, the property of James M. McKenzie, on the 31st day of January 1851. There were five counts.

/. The money was described as 18 bank notes of the value of $160.

*II. " “ “ “*18 bank notes “ “ $159

*III. “ “ “ “*3 bank notes of $20 each amounting to $60, and 15 bank notes amounting to $100.

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      *IV.*The money was described as 1 bank note of $20, 1 other of $20 and one other of $20.

*V. “ “*“ “ 3 bank notes of $20 each, 1 of $10, 7 of $10 each, 3 of $5 each and 4 of $1 each.

The Prisoners, by their Counsel, announced their election to sever in their trial, and thereupon the prosecuting attorney elected to try Allison first.

Henry B. Allison was set to the bar. He was a short, thick man, with remarkably broad shoulders—large eyes somewhat protruding, and a bad expression of countenance. He seemed about 40 years of age.

Before Plea. *Crump,*for the defence, objected to the indictment that it did not sufficiently describe the property alleged to be stolen. It spoke only of “ bank notes it should have stated of what banks—whether incorporated or not, and whether of Virginia banks or not, otherwise it could not be known that they were of any value. He referred to the 16th Sec., which decided the question of value by “ the money due on, or secured by the writing and remaining unsatisfied, or which in any event might be collected thereon.”

*Young,*insisted that the property was, according to approved precedents, sufficiently described as *“*bank notes,” and that Sec. 16 did not refer to bank notes at all.

*Crump*rejoined, and after full argument,

*The Court*overruled the objection, deciding the indictment to be sufficient.

The prisoner, by his counsel, then pleaded specially that he had not been properly examined by an Examining Court according to Law.—Code of Va., page 764.

The Commonwealth’s Attorney replied, the record of the Examining Court.

*Crump*demurred to the replication, on two grounds:

*I.*That no certificate of the Committing Magistrate appeared.— Code of Virginia, Sec. 16, Chap. 204, page 763. Acts of 1847-1848, page 133, sec. 29.

*II.*That one of the five Magistrates who sat in the Examining Court, had not been summoned. Sec. 3, chap. 205, Code of Va., page 764.

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      *Young.*

I. The *Warrant*of the Committing Justice, required by sec. 3, appears in the record. The certificate is no necessary part of it, is not the foundation of the Examining Court’s authority, and need not appear.

*II.*Five Justices of the City sat according to sec. 4, page 765. It did not vitiate the Court that a Justice sat who had not been summoned.

*Crump*replied.

*The Court*overruled the demurrer, deciding that the prisoner had been properly examined.

The accused then pleaded “ Not Guilty.”

The following were the Jury:

E. L. Tompkins, Thomas Jones, Valentine Winfree, James A. Scott, George Lynch, Thomas Trowers, David A. Brown, Thomas Goolsby, John Clash, Thomas Stone, John Messier, John Pae.

For the prosecution.

*James M. McKenzie,*sworn.

On the night of the 31st of January last, I went, in company with Mr. George Watt, Jr., to the African Church, to witness an exhibition of Indians. By an unusual fact, I had all my money and my papers with me in my pocket. It was a cold night; we took our places in a pew some distance from the stage, where I thought I would be safe from pickpockets. Mr. Watt had warned me to guard against pickpockets, and I took my pocket-book out of my coat and put it in my pantaloons pocket, and held my hand there. After the exhibition it was announced that the Indiau Girl would sell some pictures or other things at the stage. After some hesitation I went up ; there was a great crowd ; I still kept my hand on my pocket; I saw the man Clare, he pressed close upon me—

*[Crump.*I object to any statements as to Clare or his conduct ; no connexion has been shewn between him and the accused.

*The*Court.

Some such connexion must be shewn before the evidence would be proper.)

Young.

Stand aside a moment, Mr. McKenzie. Mr. Handy.

*Officer Edw’d G. Handy,*morn

I am an officer of the police in Washington. On Saturday, the 1st of February last, I received a Telegraphic Dispatch from Mr. Mayo, (prosecuting attorney in the Hustings Court, Richmond,) stating that a gentleman *23had been robbed, giving me some description of Allison, and asking me to endeavour to apprehend him. I went to the Southern Steam Boat on her landing, and saw the prisoner.

Crump.

I object; no proof has been given of any robbery or larceny.

Young.

I will go on then with Mr. McKenzie.

*James M. McKenzie,*recalled.

I held my hand on mv pocketbook, in my pocket, among the crowd; a little boy handed me a ninepence and said, “ Mister, you are taller than I am, please reach up and buy me a picture;” perhaps the little boy knew that I felt an interest in youth, as I have long been engaged in teaching; I forgot my pocket-book—took my hand out and handed up the ninepence and got the picture for the boy—when I put my hand back, my pocket-book was gone ! I recollected th?t just before I had felt some one pressing his hand between Mr. Watt and myself, and on turning round I saw the man who had been pressing on me all the time, retreating and keeping his eye upon me.

Crump.

Was the prisoner present; did you see him ?

Witness. I do not know that I did.

The question was raised and argued, whether the witness could state any thing said or done by Clare.

*The*Court.—Unless the prisoner was present, or unless a conspiracy be proved to have existed among them at the time—the conduct and declarations of others cannot be given in evidence against the prisoner.

*Examination*continued.—I lost $159 or $160 ; I am not positive which amount, because I had had three twenties, one ten, and either seven tens and three fives, or eight tens and one five, and either four or five one dollar notes. (Here a number of bank notes were shewn to the witness.) I looked at my money every day for eight or ten days, and became quite familiar with its appearance ; one of my twenty dollar notes had a little piece torn out of the margin, like this one; I have no doubt as to this one ; I cannot swear so positively as to the rest, but I am so confident as to all, that if my salvation depended on it, and I were compelled to swear either way, I would not hesitate to say'that these are the notes I lost.

Cross-examined.—I do not recollect distinctly what occured *24before the Mayor; I don’t recollect being there asked as to the number of each denomination of notes ; I recollect that I have stated something of the excitement and confusion attendant on the scene at the African Church ; I *am*subject to an affection of the head, which sometimes distresses me much ; after it was stolen, I first saw the money again the second time I testified before the Mayor; I think I gave such a description as 1 have mentioned, to Mr. Mayo, before he telegraphed, and this was before I had seen the notes after they were stolen ; my account to Mr. Mayo was, that there were three twenties and one ten in one roll, and that the majority rn the other roll were tens ; I saw the money on Wednesday after the Friday, when 1 lost it. 1 sold a coloured girl for whom I think I got $580, deposited $500 in bank, and kept the balance, and I think these three twenties were part of that balance ; I believe Mr. Dickinson sold the girl; this was less than a month before I lost it. As to one of these rolls, I have no more recollection of this bundle of tens as mine, than I would have of any other tens, similar in appearance; it corresponds with mine.

*Edward G. Handy,*recalled.

Mr. Woolward went with me to the boat; the prisoner came off and went in an omnibus to the Baltimore Depot, about a mile from the wharf; we followed him ; at the depot I stopped him and told him I wished him to come with me ; he immediately did so ; I put him in a hack with Mr. Woolward and myself. On the way, he asked what he was arrested for; I answered him that he probably knew better than we did ; he asked if we could not come to some terms ; I answered no, he could have no terms from me. While in the hack I saw him take something out of his pocket and put it behind him ; when we got to the Mayor’s office, Mr. Woolward got out first; I told the prisoner to get out, he hesitated but finally got out. I then looked behind the cushion of the hack and found a roll of money; 1 think $199 in all. (Here the money which had been shewn to Mr. McKenzie was shewn to the wimess.) I marked each note that I might identify them thereafter: (examining them.) Yes, sir, all these notes were in the roll I found.

Cross-examined.—The telegraphic message said, a gentleman had had his pocket picked at the African Church; that two parties, supposed to be guilty, had been arrested; that another had *25escaped ; described as a short, stout man, with head somewhat bald; I think the amount was stated ; I did not know that two gentlemen had been robbed, or I would have kept the rolls separate.

*Officer James F. Woolward,*sworn.

My statement will be pretty much Mr. Handy’s, with the addition that I took some $25 or $30 more from the prisoner, with a pocket book: (here the pocket-book and money were shewn and identified ; the pocket-book, among other papers, contained Park Benjamin’s Poem, “ To My Mother,” apparently cut from a newspaper !)

*Peter Wren,*sworn.

I am employed at the Columbian Hotel; the prisoner arrived there by the Southern cars on the 28th of January, and left the 1st of February by the Northern cars. On the 19th of December, 1850, he arrived at the Hotel in company with Dowel, and on the 15th of January, Allison, Clare and Dowel all arrived there together.

*James M. Sublett,*sworn.

The prisoner came to the Columbian on the 19th December, in company with Dowel; they paid their bills and went away. On the 15th of January, Allison, Dowel and Clare all came together; they asked for separate rooms on each occasion, but the last time we were crowded and I put them all in the same room ; they did not seem to have any business; they did not often speak to each other though I could perceive they were acquainted. On the 28th of January, Allison came alone and got a single room; on the 29th, Clare and Dowel came together. The last two staid until they were arrested, 31st January. Allison left 1st February, without having given notice of his intention to leave, although we have notices put up in every room, that guests intending to leave early in the morning, may have early breakfast, by giving notice the night before.

Cross-examined.—They staid more than a week, from the 15th January; we presented their bills at the end of a week and they paid them; I never saw them in the street; no one came to see them or asked for them, but that was not altogether unusual; I saw nothing in their conduct disorderly, or other than respectable ; they did not stay much together, but sometimes in passing exchanged some words. I think they all left together after the 15th January. As a general thing, passengers give notice who are going by the Northern cars. Allison seemed hurried because *26he had not more than fifteen or twenty minutes to get off.

*Question by a*Juror.—Each had a carpet bag ; I was present when their carpet bags were opened; besides apparel they had nothing except blacking-brushes and razors,

*George Walt, Jr.,*sworn.

I am pretty positive that I saw the prisoner at the Exhibition, in the African Church, the night of the 31st January. I went with Mr. Mckenzie ; there was a great crowd; I cautioned him to take care of his pocket-book. After the exhibition, they offered some pictures for sale, two or three of us went up to the stage; while there, there was a considerable pressure on me; I was standing against the platform and the pressure became painful; I asked McKenzie “ why this pressure ?” I saw two men who were pressing on McKenzie, as I thought, without necessity and looking at them, I asked them to desist. They put on a sort of “daring, insignificant grin,” and still pressed ; I threw myself forward to relieve myself from the painful posture in which I was, and succeeded; immediately af-terwards I heard a sort of scuffle, and looking round, saw McKenzie, with his arm raised, reaching out as if to seize some body—

Crump.

I object to any statement as to Clare and Dowel.

Young.

Mr. Watt, did you see the prisoner?

Witness.—I believe I did see the prisoner that nrght, but I can’t locate him.

*George Sublett,*sworn.

I was at the African Church that night. At the time of the pressure I was about three feet from Mr. McKenzie ; I saw no necessity for a pressure ; my arm was in a sling from a hurt, and I avoided the crowd; as I was advancing I met a man pressing towards me elbowing his way, when there was no need for it; I stood aside and made way for him. The man was not tall, not as tall as I am, but broad and stout; I was struck with his appearance, and when afterwards I saw Allison in the Mayor’s Court, 1 believed it was the same man.

Cross-examined.—I am sometimes at the Columbian, but not at meal times; I never saw the prisoner there ; the man had not gotten out of the church before I heard Mr. McKenzie cry out he was robbed ; I did not see the man’s face, or the color of his hair ; I think he had a hat on ; I never recognized him except by his broad shoulders ; I was with a lady, and when the confu*27sion commenced she was very much alarmed and begged me to leave with her; I got up on a bench and staid about five minutes. There was much confusion, and propositions to search were made; I did not see any little boys in the aisle, nor did I see Dowel or Clare. I think I first mentioned the matter to my brother that night or next morning.

Young.

I think we have now in the case, evidence tending to prove a connexion of the prisoner with this affair at the church.

*The*Court.—You can go on, sir.

*McKenzie,*recalled.

I turned and Clare was retreating and watching me, in this way—(here the position was shewn)—I reached out after him; I was so eager that my hand fell down by his head, crushing his hat, and I seized his collar; I said, “ You have got my pocket book he said, “ I hav’nt;” I said, “ You took it;” after a moment he said, “ Search me.”

Crump.

These statements are not evidence; it is not pretended that Allison was then present, and they cannot be given in evidence on the ground of conspiracy, because even if any conspiracy existed, its object had been accomplished the moment of the theft and the conspiracy had ceased; the statements of one conspirator, made *after*the conspiracy is ended, are not evidence against another conspirator.—II. Starkie on Evid. 233. I. Greenleaf’s Evid. 187-188.

After argument, *the Court*said Mr. McKenzie might state any *facts*connected with the loss and search, but not declara, tions of Clare or Dowel.

Witness.—I searched him but did not find my pocket-book, and did not expect to find it; I searched both Dowel and Clare at the church and did not find any of my property upon either of them. I had on a pair of home-made pantaloons which were very “ spareing in every thing,” and had very shallow pockets.

*George Watt, Jr.,*recalled.

Seeing him catch Clare, I caught hold of the other man that I had seen pressing upon Mr. McKenzie. As soon as possible I went to the cage and got Captain Jenkins and the police to arrest them. When Allison was brought back here to the jail, I went and asked the jailor to let me see him, and the moment I saw him I recognized him as a man I had seen at the Church; I have a peculiar faculty for remembering faces.

*28Cross-examined.—There were very few persons immediately around the stage ; these two persons were the only ones crowding on McKenzie ; no one was crowding on them ; the nearest persons I saw to them were some boys. Clare had on a cloak and was in a leaning position when I saw him.

*P. P. Winston, one of the Sheriffs,*morn.

This morning when I was walking round by him, Allison asked me what I thought he had better do; he said he thought they would convict him and let the others off; he said he received the money from the man whom Mr. McKenzie seized at the Church ; he asked me if I thought he had better plead “ GuiltyI told him I thought as he had stood so far, he had best plead “Not Guilty he said he had been advised not to plead by his Counsel. (This last statement is supposed to have referred to the advice of his Counsel not to plead until the preliminary questions as to the Indictment and the Examining Court had been disposed of.)

When Mr. Winston’s evidence was heard, *Mr. Crump*stated that he considered his office and his duty as ended ; as the prisoner had thought proper to take his case into his own hands, he considered himself no longer bound to act as his Counsel and should leave him to the Jury.

*Young*submitted the case.

The prisoner said 10 the Jury, that he was not concerned in the matter ; that he was not at the Church; that the money was handed to him by a man named Humphreys, and that he was innocent.

At about half past 9, the Jury retired, and in a short time returned with a verdict of “ Guilty,” and ascertained the term of confinement in the penitentiary at five years.

*On Tuesday, April*Tlnd.—Dowel and Clare were tried on the same indictment, but as the report of their trial is to a great extent repetition of the evidence above given, it is here omitted. They were convicted, and the term of their confinement ascertained at four years.

Henry B, Allison was tried during this term for larceny of a sum of money from J. B. Kee, a member of the Virginia Legislature. He was convicted, and a farther term of two years confinement was assigned him.

*29On the Indictment in this last case, a *“nolle prosequi"*was entered as to Dowel and Clare.

*On Friday, Jlpril*25.—The Judge pronounced sentence on the three prisoners. In Allison’s case, he alluded to its peculiar circumstances, which had furnished one more proof how often the “very fruits of crime are turned to gall and wormwood upon the lips of the criminal.” He had escaped with the money, while his accomplices were instantly arrested; to other’s eyes and to his own, he perhaps seemed the most fortunate, yet the result had been that his prey was the means of his conviction, and his punishment was more severe than that of his comrades in crime.