given in accordance with the verdict. Defendant's application to the judge of the circuit court of Henry county for a writ of error having been refused, he sued out a writ of error. Geo. D. Gravely & Son, for plaintiff in error. The Attorney General and W. C. Preston, for the Commonwealth. Indictment of defendant, Gravely, for burglary. The prosecuting witness testified: "On the morning after my house was broken into I missed about 100 pounds of flour, 30 or 40 pounds of meal, and two dozen eggs. The flour was white, and of good quality. It had been raining recently, and the ground was soft. I discovered a large track outside of the inclosure around the house, which I followed to the fence inclos- LEWIS, P. The single question we have ing defendant's house. The left track to deterinine is whether there was error in showed that the boot or shoe that made it overruling the motion for a new trial; and had a half-sole which made a distinct im- in determining this question we must be pression. I measured the tracks, and, aft-governed by the rule so often announced er defendant's arrest, a day or two later, by this court, that where the evidence confound that they corresponded with the sists of circumstances or presumptions a measurement of defendant's boots, and new trial, on the ground that the verdict is that defendant's left boot had a half-sole contrary to the evidence, ought to be which also corresponded with the tracks." granted only in a case of a plain deviation, The prosecuting witness was corroborated since to do otherwise would be to assume by another witness as to the tracks and the province of the jury. It ought not to measurement. The constable who made be granted merely because the court, if on the arrest testified: "When I arrested de- the jury, would have given a different verfendant, I found in his house about 30 or 40 dict, but the verdict must be plainly wrong, pounds of good flour, and about a peck of to justify the court in setting it aside; and meal. Defendant made no inquiry as to the this restriction, it is needless to say, applies charges against him until we had nearly a fortiori to an appellate court. Read's reached the house of the justice, when he said Case, 22 Grat. 924; Finchim's Case, 83 Va. that he got the flour from Barrow's mill. 689, 3 S. E. Rep. 343. Viewed in this light, After the examination, defendant admit- the verdict must stand. ted to me that his boots made the tracks, It is a general rule of the common law, but said he was not in them at the time. with regard to the evidence in cases of larOn making a comparison between the ceny, that the possession of goods recently flour found in defendant's house and a sam- stolen is prima facie evidence of guilt, and ple taken from the barrel from which that throws upon the accused the burden of acof the prosecuting witness had been stolen counting for that possession. This rule, it I could see no difference; the two being of is true, has never been held by this court to the same appearance and quality." The apply with the same effect in cases of burgmiller at Barrow's mill testified: "About lary or house-breaking, and the decided two weeks before the burglary, defendant weight of authority is that it does not. brought some smutty wheat to my mill, Still, where goods have been obtained by which yielded about 30 or 40 pounds of dark means of a burglary or house-breaking, the flour. I examined the flour found at defend- fact of such possession is a most material ant's house, and think it was whiter, and circumstance to be considered by the jury, a better quality, than that which he had and where, in addition to such possession, ground at my mill." Defendant's father tes-other inculpatory circumstances are proved tified: "My house is between my son's and such, for example, as the refusal of the that of the prosecuting witness. My son accused to give any account, or his giving visited with me until an hour or two after a false account, of how he came by the dark on the day of the alleged burglary, goods,-such proof will warrant a convicwhen he left for home. I loaned him a tion. In other words, to use the language peck of meal, which he took with him." of the books, there should be some evidence Ada Eggleston, another witness for de- of guilty conduct, besides the bare possesfendant, testified: "I visited defendant's sion of the stolen property, before the prefamily on the evening in question, and sumption of burglary or house-breaking is stayed at his house all night. After his re-superadded to that of the larceny; but exturn from his father's house, about two hours after dark, defendant remained home all night. If he had left during the night, I would have known it, as I slept in the same room with him and his family. During the evening, Alex. Stockton came in, and borrowed defendant's boots, which he returned during the night. After defendant had left his house, about daylight next morning, Stockton came again with some flour, which he said was to pay for the use of the boots. On the refusal of defendant's wife to take it, I said I would, and this is the flour which was afterwards found by the constable." On cross-examination she said that, in conformity with her usual custom when visiting neighbors, she took some meal with her on the evening she visited defendant's family. There was a verdict of guilty. Defendant's motion for a new trial was overruled, and judgment trinsic mechanical indications may constitute such additional evidence. I Whart. Crim. Law, (9th Ed.) § 813; Davis v. People, 1 Parker Crim. R. 447; State v. Reid, 20 Iowa, 413; People v. Beaver, 49 Cal. 57; People v. Gordon, 40 Mich. 716; Stuart v. People, 42 Mich. 255, 3 N. W. Rep. 863; Neubrandt v. State, 53 Wis. 89, 9 N. W. Rep. $24; Walker's Case, 28 Grat. 969; Taliaferro's Case, 77 Va. 411. In Com. v. McGorty, 114 Mass. 299, which was a prosecution for burglary, an instruction to the jury was approved, which was in these words: "Possession of stolen property immediately after it has been stolen, if an unsatisfactory account is given as to its possession, affords presumptive evidence of guilt. The presumption is not conclusive, but is to be dealt with by the jury alone as a mere inference of fact. If the larceny was effected by a breaking and entering, and immediately after the breaking and entering the property stolen is found in possession of persons who give improbable and unsatisfactory accounts of how they came in possession of it, the possession affords presumptive evidence of their guilt. The circumstances under which they are found in possession of the property-the time, the place, their conduct, their account of itare all matters for your consideration." recent possession of that part is strengthened by the attending circumstances; that is to say, his false account of how he came by the flour, the probability that he was present when the felony was committed, and his conduct afterwards, when search for the stolen property was being made. All these are circumstances accompanying the recent possession of the fruits of the crime, from which the jury were warranted in drawing the conclusion that he not only stole the flour, but that he made use of the means by which access to it was obtained. At all events, the jury have so found, and we see no reason to disturb the verdict. The evidence, moreover, of his principal witness at the trial, which was contradictory of his own previous account of the way in which the flour came into his possession, was of itself sufficient to create a presumption against him. The statement of the witness that 30 or 40 pounds of good flour were tendered in return for the use of the prisoner's boots for a night is, to say the least, improbable. Indeed, the evidence of the witness was so improbable throughout that the jury were warranted in disbelieving it, as they evidently did. The judgment approving the verdict is right, and must be affirmed. Judgment affirmed. where property, the identity of which, from its nature, is not capable of strict proof, has been stolen, and articles of the same kind are shortly thereafter found in the possession of the accused, who had the opportunity to commit the larceny, and who was probably present when it was committed, and where all the circumstances are such as render it morally certain that he came by the goods feloniously. In such In the present case, it is true, there was a case, why may not the identity of the not strict proof of the identity of the stolen property be inferred as well as in the class flour, but, in view of the nature of the arti- of cases above mentioned? Of course, becle, the recency of the possession, and all fore the jury can rightly convict in any the surrounding circumstances, the evi- case, they must be satisfied, beyond a readence was sufficient. At any rate, it was sonable doubt, of the identity of the propnot plainly insufficient. "Unless the pos- erty; and, if this fundamental rule be atsession be recent," says Starkie, "it is nec- tended to, a wrong conclusion will probessary to give strict proof of the identity ably seldom, if ever, be reached. We think, of the goods, which is not so requisite therefore, that the evidence of the identity where the possession is very recent." 2 of a part, at least, of the stolen property Starkie, Ev. 841. And in 2 Russ. Crimes, in the present case is sufficient; and the 178, the learned author, after laying down presumption arising from the prisoner's the rule that, where all that can be proved concerning property found in the possession of a supposed thief is that it is of the same kind as that which has been lost, this will not, in general, be deemed sufficient evidence of a larceny, and that some proof of identity will be required, says: "But where the fact is very recent, and the property consists of articles the identity of which is not capable of strict proof, from the nature of them, the conclusion may be drawn that the property is the same, unless the prisoner can prove the contrary." Thus, he says, if a man be found coming out of of another's barn, and, upon his being searched, corn be found upon him of the same kind as that in the barn, the evidence of guilt will be pregnant; and cases have frequently occurred where persons employed in carrying sugar and other articles from ships and wharves have been convicted of larceny upon evidence that they were detected with property of the same kind upon them, recently upon coming from such places, although the identity of the property, as belonging to such and such persons, could not otherwise be proved. See, also, 2 East, P. C. 657. Another writer of acknowledged authority, in treating of the same subject, uses this language: "It is not, however, necessary that the identity of stolen property should be invariably established by positive evidence. In many TAYLOR et al. v. BOARD OF SUPERVISORS such cases, identification is impracticable, and yet the circumstances may render it impossible to doubt the identity of the (Supreme Court of Appeals of Virginia. Nov. property, or to account for the possession of it by the party accused, upon any reasonable hypothesis consistent with his innocence." Wills, Circ. Ev. 130. This principle, without any undue extension, we think, may be properly applied to the present case; for, obviously, what is sufficient evidence of identity of stolen goods is, like what is recent possession, a question to be determined upon the circumstances of each particular case. 3 Greenl. Ev. § 32; Steph. Dig. Crim. Law, art. 308. If the mere finding of an article upon a person, when coming from a place where property of the same kind is stored, is, unexplained, sufficient evidence of guilt, there is no reason why a conviction may not be sustained v.10s.E.no.13-28 et al. 7, 1889.) RAILROAD COMPANIES-AID FROM COUNTY- 1. Where the charter of a railroad company authorizes the counties through which it is to pass forms prescribed by the Code of Virginia of 1873," to subscribe to its capital stock "according to the and "to an amount not exceeding $3,500 per mile for each and every mile of railroad the company might build within the county," an order of a county court for an election to determine the sense of the voters as to whether the supervisors of the county shall subscribe to the capital stock of the company the sum of $3,500 per mile, without stating the maximum amount, or the number of the purview of Code Va. 1873, c. 61, § 62, which remiles, is sufficiently specific, as it is not within quires that an order of election for a county subscription to works of internal improvement shall 2. Amendments to the charter, which have not been acted upon by the company, do not release the county from its subscription. G. S. Bernard, C. F. Collier, Tredway & Barham, and W. E. Cameron, for appellants. Ŕ. B. Davis and J. M. Mullen, for appellees. state the maximum amount proposed to be sub-, upon the books of the company. Subsescribed, and as the forms prescribed by the Code quently, in 1886, (see Acts 1885-86, p. 214,) the of 1873 (chapter 61, §§ 65, 66) apply merely to the legislature amended the charter of the commode of procedure after the subscription has been pany, allowing it to change its gauge from determined upon by an election. a narrow to the standard gauge, to build a branch road from a point on its main line to Portsmouth, and to build, purchase, and operate vessels on the waters of the commonwealth in connection with its road, etc. The road was built, as contemplated by the charter, from its starting point, in Surry county, to Belfield, in Greenville county, when, in accordance with the HINTON, J. This is an appeal from a de- terms of the subscription, the company cree of the circuit court of Petersburg, dis- made application to the board of supersolving an injunction, which had been visors to issue the bonds in payment of the granted, restraining the board of supervis- subscription for the number of miles of ors of Greenville county from issuing the road which, by the report of the commisbonds of the county in payment of its sub- sioner appointed by the county court of scription to the Atlantic & Danville Rail- Greenville county, in pursuance of the diroad Company. The suit was originally in-rections of the charter, appeared to have stituted by the complainants, who are citizens and tax-payers of the county of Greenville, in the circuit court of that county, but was subsequently removed, by consent of parties, to the circuit court of the city of Petersburg. The material facts of the case are as follows: The legislature of Virginia, by an act approved April 21, 1882, (see Acts 188182, p. 467,) chartered the Atlantic & Danville Railroad, and authorized it to construct a railroad from some point on the James river, in Surry county, to the city of Danville. By the ninth and tenth sections of the charter, the counties through which the proposed route of the road was to pass, Greenville county among the number, were authorized to subscribe," according to the forms prescribed by the Code of Virginia of 1873," to the capital stock of the company, "to an amount not exceeding thirty-five hundred dollars per mile for each and every mile of railroad the company might build within the county." In October, 1882, the county court of Green ville county, acting in pursuance of the power supposed to have been conferred by the charter, entered an order reciting the provision of the charter in totidem verbis, directing the officers to open a poll and take the sense of the voters of the county upon the question "whether the board of supervisors of this county shall subscribe to the capital stock of the said Atlantic & Danville Railway Company the sum of $3,500 per mile, as above recited." The result of the vote being in favor of the subscription, the board of supervisors, on the 12th day of May, 1883, entered an order upon their records subscribing the sum of $3,500 per mile for each mile of the main line of the railroad the company should construct within the county, and appointed an agent to make the subscription upon the books of the company; and the matter was certified to the company. Afterwards, to-wit, on the 6th day of June, 1883, the board entered another order, revoking the former order as having been "inadvertently entered," against the protest of the company, and subsequently ordered a definite subscription of $10,000. These orders were in turn rescinded, and the original order, subscribing $3,500 per mile was re-entered, and the subscription was actually made in pursuance thereof been built in the county; but the board of supervisors refused to issue the bonds, upon the ground that they were informed by counsel that the original subscription was void, and created no liability upon the county. In February, 1887, this suit, to restrain the board of supervisors from ever issuing the bonds of the county, was instituted. The grounds upon which this ap plication for a perpetual injunction was rested are virtually the same as those upon which this appeal is sought to be maintained. They are these: First, that the order of the county court, at the October term, 1882, ordering an election to be held to take the sense of the qualified voters of the county upon said subscription, and all subsequent proceedings had in pursuance thereof, are null and void, because the order of the county court directing the submission of the question whether there should be a subscription or not to the vote of the people of the county neither specifies the maximum amount proposed to be subscribed, by naming the particular sum, nor does it, by giving both the number of miles to be built and the maximum amount per mile proposed to be subscribed, afford the voters the means of estimating what the aggregate amount would be; and, secondly, that, if all of said acts and proceedings were valid, yet the company, by accepting and acting upon the amendment to the charter heretofore mentioned, whereby enterprises materially different from that contemplated by the original charter, had released the county as a subscriber. But we do not think either of the objections tenable. As to the first ground of objection, the argument is that the failure to state the maximum amount proposed to be subscribed, or to do what was equivalent thereto, namely, to give the number of miles, and the amount to be subscribed per mile, from which the gross amount of the subscription might be arrived at, is such a violation of that provision of the charter authorizing the subscription to be made according to the forms prescribed by the Code of 1873 as that it makes not only the order, but all the proceedings founded thereon, absolutely null, and of no effect. But this suggestion is based upon a plain misconception of the purpose the legislature had in view in making this enactment. The DADE COAL Co. v. HASLETT. (Supreme Court of Georgia. Oct. 28, 1889.) CONVICTS - CORPORATIONS — PLEADING CAPACITY TO SUE. by law to carry on business in any county, and it 3. One convicted of a felony in Georgia is not thereby disqualified from suing for personal injuries received during his imprisonment. Error from city court of Atlanta; VAN EPPS, Judge. Julius L. Brown, for plaintiff in error. R. J. Jordan and John T. Glenn, for defendant in error. legislature was not dealing here with the ordinary case of a subscription by a coun ty to some work of internal improvement, where the precise amount to be subscribed might be readily ascertained in advance; but it was dealing with a case where it was impracticable, perhaps I might say impossible, for either party to accurately estimate at the time the vote was to be taken either the precise sum that would be required, or the exact number of miles of road that would be built. It doubtless thought that the interest of the county would be sufficiently protected by limiting the subscription to the sum of $3,500 per mile, and leaving the number of miles to be fixed by the company when it should finally come to build the road. Now, if this was the legislative intent, and we think it was, is it not clear that, when it provided that the subscription should be made according to the forms prescribed by the Code of 1873, it did not mean that the order of submission should state either the gross amount that was to be subscribed, or data from which the gross amount might be defi- BLANDFORD, J. 1. There was a general nitely ascertained? The provisions of sec-demurrer to the declaration filed by the detion 62, c. 61, Code 1873, seem to have been fendant in error against the plaintiff in ermainly designed to give to the people a defi- ror, which was overruled by the court, and nite idea of what is proposed to be done in the plaintiff in error insists that this was behalf of the county, and to fix a limit be- error, because, as it appeared that the yond which generally the power to sub- plaintiff in the court below had been conscribe shall not be exercised. These ob-victed of a felony, and that the injury he jects, however, the legislature has evident- complained of was received by him while ly seen fit to accomplish, so far as they he was in confinement in the penitentiary, were practicable, by the provisions of this he was civiliter mortuus, and could not charter, and we must hold, therefore, that maintain an action for the injury, although that section of the Code has no application he had received a pardon, and had been to the case. But what, then, are the thereby restored to all his rights of citizen"forms prescribed" by the Code of 1873, ship, before the commencement of this acwhich the charter directs shall be observed tion. We do not think that this position of in making this subscription? Why, mani- the learned counsel for the plaintiff in error festly, the forms given in sections 65, 66, c. is sound. We are aware that at the com61, Code, under the heading, "If subscrip- mon law, when one was convicted of felony tion be voted for, how is it to be made," or treason, he forfeited all his rights of citietc. In other words, the forms prescribed zenship, and that he was deemed to be civilby the Code of 1873, according to which the iter mortuus; but, as these consequences subscription is to be made, are those which do not follow in this state by conviction of are to be observed in making the subscrip- felony, it would seem that he might maintion after the voters have declared at the tain an action for the injuries he received, polls that the subscription shall be made. even though at the time of receiving the That these are the forms directed to be ob- same he was a felon, and in confinement. served in making the subscription is made In the case of Cannon v. Windsor, 1 Houst. even more clear if we simply reflect that 143, it was held that "the maxim of civilithe only effect of a literal compliance with ter mortuus, on a conviction for felony, the provision of section 62, requiring that does not apply in this state," (Delaware,) the maximum amount to be subscribed and that, against one who had been conshall be stated, would have been "to em-victed of the crime of murder, and was unpower the board of supervisors to act in der sentence of death, an action could be the premises," and the subscription would maintained for the support and maintethen have remained to be made according nance of his minor children. It is stated as to the forms prescribed by law. Chalmers a principle of the common law that a perv. Funk, 76 Va. 717, 722; Matthews' Case, son convicted of felony "may sue for any 18 Grat. 989; Sedg. St. & Const. Law, 194. personal wrong done to him before or after the commencement of the period of his disability, e. g., for an assault." Dicey, Parties, 3, citing Barnard's Case, Owen, 22; Com. Dig. "Forfeiture," B, 2. "A right of action for damages is not forfeited to the crown upon a conviction for felony." Fleming v. Smith, 12 Ir. C. L. 404; Mews, Com. Law Dig. Forfeiture." Besides, in Ex parte Garland, 4 Wall. 380, the supreme court of the United States held that a pardon reaches both the punishment prescribed for the offense and the guilt of the offender, and, when the pardon is full, it releases the Upon the second point, we think we need say but little; for, if we concede, for the sake of the argument, that the amendments complained of are material, the facts agreed show that they have not been acted on by the company, and so neither the county of Greenville nor its citizens can possibly have been injured thereby, and in such case it is well settled that the subscriber is not released. Pierce, R. R. 70; 1 Wood, Ry. Law, 104, and cases cited. The decree appealed from is right, and must be affirmed. Decree affirmed. 66 punishment, and blots out of existence the | could have also under the plea of the genguilt, so that, in the eye of the law, the eral issue; and hence no harm resulted to offender is as innocent as if he had never the plaintiff in error by the ruling of the committed the offense. So we are of the court complained of in this ground. So, opinion that the general demurrer to the upon the whole case, we affirm the rulings, declaration should have been overruled. decisions, and judgment of the court below. Judgment affirmed. DE LOACH et al. v. SMITH et al. (Supreme Court of Georgia. Nov. 11, 1889.) CONTRACT-PERFORMANCE-PAROL EVIDENCE. 1. Plaintiffs entered into a contract to furnish defendants with a certain quantity of sawed lumber at a certain price, defendants to furnish the speciPlaintiffs delivered a quantity of the lumber, but fications for sawing it, and to pay at certain times. defendants failed to pay for it as agreed, or to furnish any more specifications. Held, that the nonperformance by defendants was a breach of the contract on their part, and plaintiffs were entitled to recover. 2. This action was brought against the Dade Coal Company, to recover damages which it is alleged that company wrongfully inflicted upon the plaintiff, the defendant in error here. There was a plea in abatement filed by the defendant, to the effect that the Dade Coal Company was located in the county of Dade, the plea stating that "all of the defendant's coal-mining operations are located in Dade county, and that all of its books relating to the shipment of the products of its coal-mines are kept in Dade county, at its offices at the said Dade Coal-Mines, at a place known as "Coal City;" that its superintendents and agents having charge of its coal-mining operations are also at its said mines at have made a demand on defendants for further 2. It was not necessary that plaintiffs should said Coal City, and all of its mining opera- specifications, or that they should have delivered tions are carried on in said county of Dade; the balance of the lumber which they had sawed. and that its office in Atlanta is for the pur- 3. Parol evidence is inadmissible to show that pose of electing its officers, and for the pur- a contract totally at variance with a written conpose of conducting its financial opera-tract was agreed upon between the parties contemtions." The court sustained the demurrer poraneously; there being no allegation of fraud or to this plea, holding that upon the face of mistake in the signing of the written contract.1 the plea itself the proper court in Fulton county had jurisdiction of the case, inasmuch as the plea showed affirmatively that it had an office in Atlanta for the purpose of electing its officers, and for the purpose of conducting its financial operations. The act of the legislature incorporating this company, approved February 1, 1873, does not, by any of its provisions, locate this company in any particular county of this state. It can carry on its mining operations in any county, by the terms of the act. The company, therefore, had a right to establish its principal place of business in any county in this state; and, the company having chosen to locate its office in Atlanta, "for the purpose of electing its officers, and for the purpose of conducting its financial operations," we think that gave the proper court in Fulton county jurisdiction in this case, and there was no error in sustaining demurrer to this plea. 3. There was an amended plea filed by the plaintiff in error, to the effect that the Georgia Penitentiary Company No. 1, to which the plaintiff was committed by the authorties of the state after his conviction, for punishment, was located in the county of Dade, and that the Dade Coal Company was a mere stockholder in that corporation, and therefore no action could or ought to be maintained against the Dade Coal Company; that the same should be brought, if any could be brought, against said Penitentiary Company. This amended plea was also demurred to, and the demurrer sustained, and the plea dismissed by the court. We think the court did right to sustain the demurrer to this plea, because the plaintiff in this action did not complain of any injury which he received from Penitentiary Company No. 1, but complained that his injury was received in consequence of the carelessness and negligence of the Dade Coal Company. Besides, we think that whatever defense the plaintiff in error may have had under the amended plea it Error from superior court, Bullock county; HINES, Judge. O. H. Shockley, Lester & Ravenel, and Williams & Branen, for plaintiffs in error. T. H. Potter, for defendants in error. SIMMONS, J. It appears from the record in this case that Smith & Anderson entered into a written contract with De Loach & Bros., whereby they agreed to furnish to them 100,000 feet of sawed lumber, according to specifications which should be furnished to them by De Loach & Bros. The lumber was to be delivered on Lott's creek, and De Loach & Bros. agreed to pay $7.50 for each 1,000 feet of the same, except 30,000 feet, for which they were to pay $9 per 1,000; said sums to be paid on the 20th day of each month, for such quantities of the lumber as should then be delivered to De Loach & Bros. The record further shows that Smith & Anderson sawed 30,000 feet of lumber, according to the specifications furnished them, and delivered 13,000 feet at the place designated in the contract. Upon its delivery and the time of payment having arrived they demanded payment therefor according to the contract, which was refused. De Loach & Bros. failed to furnish any other specifications for lumber, and Smith & Anderson did not saw any more lumber for them. Smith & Anderson then brought suit for a breach of the contract, and recovered a verdict. The defendant moved for a new trial, which was refused. 1. The third ground of the motion, which was relied upon here for reversal of the judgment of the court below, is, in substance, that the court erred in charging that if, after the plaintiffs had delivered 13.000 feet of lumber, the defendants refused to pay for the amount thus delivered, and failed to furnish any other specifications On the admissibility of parol evidence in connection with writings, see Bank v. McElwee, (N. C.) ante, 295, and note. |