Commonwealth v. Adcock

The evidence closed.

The case was argued at length by Meredith for the Commonwealth, and Johnson, Byrd and Scott for the prisoner.

The Jury, after retiring about an hour, returned with a verdict. *36They found the prisoner “ Guilty,” and ascertained his term of confinement in the penitentiary at one year.

Notice was given of a motion for a New Trial.

On Monday and Tuesday, May 5th and 6th, 1851. The Court (Hon. John Robertson on the bench) heard the argument upon the motion for a new trial.

Henry P. Irving.—We move on two grounds :

I. That the goods are proved to be the property of Ayres & Co., and not of Word, Ferguson & Barksdale, as laid in the Indictment.

II. That the offence, if committed at all, was not committed within the Jurisdiction of this Court.

On the first point, Irving cited authorities.—The indictment must set forth the owner, and it must be so proved.—Starkie’s C. P.213,223,74. Archbold’s Crim. Plead. 211, 213, 215: 324 for form of indictment; Roscoe’s Crim. Ev. 584-585; the goods were not the property of W., F. & B.—Angel on Com. Carriers 465, 468; Chitty on Contracts, 438, 484. Nor can the doctrine of stoppage in transitu avail the Commonwealth.—1. Selwyn’s N. P. 347. 2nd Selwyn 518, 521 Nor was there any special property in the goods left in W.. F. & B. which would support the indictment.—Smith’s Mercantile Law, 502 and notes 501.

Un the second point Irving cited Roscoe, 403.

Young, against the motion.—There may be a distinction between the rules of pleading, and proof in larceny and embezzlement —Archbold’s Crim. Plead. Edit. 1846, 342, 328,130. Side 282, 180. New Code, 770. 2 Va. Cases, 396. Is the allegation of property in one man or another, descriptive and so necessary to be proved ? But if necessary, there is sufficient proof. Word, F. & B , had yet an interest; they had not so delivered these goods as to furnish to Ayres & Co. an adequate remedy against the carrier.—Chitty on Contracts, 127-128. The right of stoppage in transitu might also apply.

Scott, for the motion, replied, citing Archbold’s C. P. 341, 328, 337. Stat. of George IV. 2 East’s P. C. 650. King v. Carson. Russ. & Ryan 303. Starkie’s Cr. Pl. 229. Angel’s Com. Carriers 465, sec. 497. There was absolutely no interest in W., F. & B. from the time the goods were packed and delivered to Ad-cock.

*37The Court,—It has, I think, always been held necessary in prosecutions for larceny, to allege the property as, in the real owner, and to prove it, if the Commonwealth had the means of knowing who the owner was. I do not see why a different rule should prevail in embezzlement, more especially as our Code makes that offence a statutory larceny. This being the rule, the proofseems insufficient and variant. Word, Ferguson and Barks-dale had sold the goods and charged them to Ayres & Co., and by their (A. & Co.’s } expressed or implied authority, had delivered them to the carrier. I think the property was fully vested in Ayres & Co., and that they had full remedy against the carrier, though no receipt was retained. I do not perceive that a member of the firm of W., F. & B., would have been incompetent to prove the delivery, but if he were, the delivery might have been proved by their young man, or the possession of Adcock might have been proved by Littleton Roberts. There seems, then, to have been no special property remaining in Word, F. & B. The right of stoppage in transitu, does not apply; that right gives no interest in, or even lien upon the goods; it is a mere right dependant for its exercise upon the contingency, that the vendee shall become insolvent before the goods are delivered to him. There is no proof that any such state of facts existed here. With these views, I feel compelled to set aside the verdict and grant a new trial.

(The question of Jurisdiction was very little pressed; it is presumed a new trial would not have been granted on that ground, but I do not find in my note any allusion to it as made by the Court. R. R. H.)

(After the above note was in type, Mr, Young informed me that the Court, in the course of the argument, intimated very clearly that the question of Jurisdiction need not be argued for the Commonwealth, and that if the case rested on that ground alone, the motion for a new trial would be overruled. R. R. H.)