Opinion.

blade was clearly for the purpose of connecting the accused with the offense charged, and if it were true, it was a very material circumstance against him. The object of the instruction asked for, and refused, was to inform the jury that they must be satisfied that the identity of the knife blade had been established beyond a reasonable doubt before they could rely upon that circumstance to convict the accused. The instruction does not state that unless they believe that the circumstance in question was proved beyond a reasonable doubt they must acquit the accused. It only cautions them that they must not consider it as evidence against the accused unless so proved. If it was not so proved, the jury ought not to have relied upon it as a circumstance showing his guilt, and if they had no right to rely up on it because not sufficiently proved, there could be no objection to the court's so instructing them. It was the duty of the court to have given the instruction as offered, or to have given a general instruction that every material circumstance in the case must be proved beyond a reasonable doubt; and if any such circumstance was not proved, it was the duty of the jury to discard such circumstance in making up their verdict. The court erred in refusing to give the instruction asked for, and for that error its judgment must be reversed.

The court gave two instructions to the jury on motion of the Commonwealth, to which the accused objected. The first was as follows: "The court instructs the jury that the exclusive possession of money recently stolen, unaccompanied by a reasonable account of how the possession was acquired, creates a presumption that the possessor is the thief; but such possession is not prima facie evidence of housebreaking."

It is well settled in this State, that if property be stolen, and recently thereafter be found in the exclusive possession of the accused, such possession of itself affords sufficient ground for a presumption of fact that he was the thief, and in

Opinion.

order to repel such presumption it is incumbent on him, on being called upon for the purpose, to account for such possession consistently with his innocence. Price's Case, 21 Gratt. 846, and authorities cited. The instruction complained of, whilst not in the usual form, we think correctly states the law.

By the other instruction, to which the accused objected, the jury were informed that whilst the possession of stolen goods was not prima facie evidence of the housebreaking charged in the indictment, it was a circumstance which they might consider in connection with other facts in determining whether he was guilty of that offense. This instruction was not to the prejudice of the accused, and is fully sustained by the decisions of this court in the case of Walker v. Commonwealth, 28 Gratt. 969; and Granby v. Commonwealth, 86 Va. 393.

The jury brought in their verdict in the following words: "We, the jury, find the defendant, A. F. Porterfield, guilty of grand larceny, as charged in the indictment, and fix his punishment at confinement in the State penitentiary for the period of two years and six months." This verdict was amended by the Commonwealth's attorney so as to read as follows: "We, the jury, find the defendant, A. F. Porterfield, guilty as charged in the within indictment, and fix his punishment at confinement in the State penitentiary for the period of two years and six months," and, as amended and assented to by each member of the jury, was received by the court over the objection of the accused.

The practice of allowing the verdict of a jury to be put in form in open court is a proper, and in many cases, a necessary practice; but the amendment made in this verdict was not as to a matter of form, but of substance. By the verdict returned by the jury the accused was acquitted of feloniously entering the bar-room, and found guilty of grand larceny. By the amended verdict he is found guilty, as charged in the

Opinion.

indictment, which embraces both the offense of entering the bar-room and of grand larceny. The fact that the jury was polled, and each member assented to the amended verdict, would, perhaps, have cured the irregularity, but as the cause has to be reversed upon other grounds it is unnecessary to decide that question, and we are not to be understood as expressing any opinion upon it. The proper practice in such cases is for the trial court to see that the verdicts of the juries are put in proper form before they are discharged, but if any change in the substance of the verdict is to be made, the jury should be sent back to their room, where they can, untrammelled by the presence or influence of others, find such verdict as they deem proper.

Other errors are assigned, but they are not of sufficient importance to require special' notice.

The judgment of the Corporation Court of the city of Radford must be reversed, the verdict set aside, and a new trial awarded, to be had in accordance with the views expressed in this opinion.

REVERSED.

Opinion.

Wytheville.

PITSNOGLE V. COMMONWEALTH.

JUNE 20, 1895.

1. CRIMINAL PRACTICE--Idem sonans-"Bolen" for "Bolden."-Whether or not two or more names are idem sonans may be determined by the court upon a mere comparison in cases free from doubt; in doubtful cases, or those dependent upon particular circumstances, the question may be submitted to a jury. "Bolen" is idem sonans with "Bolden."

2. CRIMINAL PRACTICE-Indictment-Proof.-Proof that the purchaser of a watch paid $30 for it, and that it was represented, when purchased, as a gold watch, is sufficient to sustain a charge in an indictment that a gold watch was stolen.

3. CRIMINAL PRACTICE-Indictment-Larceny-Embezzlement.-On an indictment for larceny, proof of embezzlement is sufficient to sustain the charge. Section 3716 of the Code.

4. CRIMINAL PRACTICE-Appellate Court-Conflicting Evidence— Verdict.— Where the evidence in a criminal case is conflicting, the appellate court cannot disturb the verdict of the jury as being contrary to the evidence.

Error to a judgment of the Hustings Court of the city of Roanoke, rendered January 15, 1893.

The opinion states the case.

James T. Hinton, for the plaintiff in error.

Affirmed.

Attorney-General R. Taylor Scott, for the Commonwealth.

KEITH, P., delivered the opinion of the court.

Opinion.

E. B. Pitsnogle was indicted in the Hustings Court of the city of Roanoke for the larceny of a gold watch of the value of $30, the property of Edmond Bolden. For this offence he was, at a subsequent term, tried before a jury, found guilty as indicted, and his punishment fixed at fifteen days in jail and a fine of $15.

The first assignment of error is that the court erred in overruling the demurrer of petitioner to the indictment. The indictment is in the usual form, and this objection cannot be sustained.

The second error assigned is that the court erred in overruling the defendant's motion to set aside the verdict on the ground that it was contrary to the law and evidence. First, because, as it is alleged, there is a variance between the allegaticns of the indictment and the proof, inasmuch as the indictment states that the watch was stolen from "Edmond Bolden," while the evidence is that the party whose property was stolen was named "Ed. Bolen." The rule, as stated in 1 Bishop on Criminal Procedure, sec. 689, is that "If the names may be sounded alike without doing violence to the power of the letters found in the variant orthography, the variance is immaterial."

In the 16th Volume of the American & Eng. Ency. of Law, page 126, it is said "that whether or not two or more names are idem sonans may be determined by the court upon a mere comparison, where the issue is free from doubt; but the modern and approved practice is to submit the question to a jury whenever there is an opportunity to do so, and where the correct sound appears at all doubftul or dependent upon particular circumstances." In our judgment, the court might very safely have disposed of this objection withcut the assistance of the jury, but as it seems to have taken the even more unexceptional mode of determining the question, that of leavVOL. XCI-102