Dissenting Opinion. the costs; but yet the effect of the decree in the suit in which they were parties, only nominally, is to deprive them of their entire interest in the property. This I say is a solecism. I dissent from the opinion entirely, on every point. I have thus briefly written out my views in the case that my attitude may be understood when the two appeals are considered together. I feel that my views are correct and just to all the parties in interest, so that each party may stand by the consequences of his own contract and no other. DECREE AMENDED AND AFFIRMED. Syllabus-Statement. Richmond. BARBOUR V. THE COMMONWEALTH. MARCH 12th, 1885. 1. WITNESSES - Disqualification.-Conviction of petit larceny does not in this State disqualify one as a witness. 2. IDEM-Impeachment.-A witness cannot be impeached by proof of particular acts and offences committed by him. 3. CRIMINAL PRACTICE-Evidence.-Evidence that the hands, knife, &c., of the prisoner were smeared with blood immediately after the homicide, is admissible, though there was no chemical analysis. 4. IDEM-Idem-Cumulative.--After the argument has commenced it is too late to admit mere cumulative evidence. 5. IDEM-Counsel-Prisoner's Statement.- Much latitude is allowed counsel in argument, but they should not relate to the jury the prisoner's version as the statement of the accused, where the latter could not himself testify. 6. IDEM-Case at bar.-The facts exhibit a case of murder in the first degree. Error to judgment of circuit court of Albemarle county rendered May 17th, 1884, and sentencing to death by hanging, one Joseph Barbour, who had been found guilty of murder in the first degree, by the verdict of the jury upon the trial of an indictment for the murder of one Randall Jackson. Opinion states the case. Daris & Harman, for the plaintiff in error. Attorney-General F. S. Blair, for the commonwealth. Opinion. LACY, J., delivered the opinion of the court. This is a writ of error to a judgment of the circuit court of Albemarle county, rendered at the May term 1884. The plaintiff in error was indicted, tried and convicted of murder in the first degree, for the killing of Randall Jackson on the 17th day of November, 1883. Upon his arraignment in the county court, the plaintiff in error elected to be tried in the circuit court, in which court he was tried accordingly. Upon the trial numerous exceptions were taken to the rulings of the circuit court. The first exception, and first assignment of error here, was as to the admissibility of the evidence of Robert Lewis, the only witness to the killing. The objection to the admission of the testimony of Robert Lewis was based upon the fact that he had been convicted of petit larceny, and the record of the conviction was offered to sustain the objection; but the court rejected the record of the conviction of the said witness, and admitted him to testify in the case. This is the question to be disposed of first in this case here. Does a conviction of petit larceny disqualify a witness from testifying in any future case? By the common law a person convicted of an infamous offence was incompetent afterwards to be a witness. These offences were treason, felony, and all offences founded in fraud, and which come within the general notion of the crimen falsi of the Roman law. Mr. Bishop says, speaking of this incapacity of a witness because of conviction of an offence deemed infamous: “As a consequence of the final judgment for treason, or felony, or any misdemeanor of the sort known by the term crimen falsi, whereof all are commonly called infamous crimes, we have the doctrine that persons convicted of any of these are not permitted to testify, when objected to, as witnesses in our courts. They are supposed to be so regardless of truth that it would be unjust to Opinion. compel litigants to suffer from what they assert even under oath. Some embarrassment attends the attempt to particularize the crimes which are infamous within this rule. Larceny is, because it is a felony; so is the knowingly receiving of stolen goods; and so, at the common law, is even petit larceny. "Larceny, such as is known as grand larceny, is a felony, and petit larceny is a misdemeanor; but before this distinction was recognized between grand and petit larceny, a party convicted of petit larceny was competent in England by the statute of 31st George III, chapter 35. And this distinction between grand and petit larceny is now well established by statute in many states, which render the crime of petit larceny no longer infamous." Mr. Bishop, in referring to this change of the rule as to petit larceny in some of the states, by operation of statutes which renders that crime no longer infamous, cites the decisions of the courts of New York, Indiana, Kentucky and Virginia. Citing upon this question the case in this court of Uhl v. The Commonwealth, 6 Gratt., 706. In that case the circuit court rejected the evidence of the former conviction of the witness for petit larceny, and permitted him to testify; and in that case this court refused the writ of error asked for. But there is no opinion filed. The effect of that decision, it is claimed, is weakened by the fact that the conviction for petit larceny of the witness was in another state; but the decision does not appear to rest upon that ground, because throughout our laws convictions in other states, anywhere in the United States, are expressly recognized, it being provided that a conviction of a person of petit larceny, formerly convicted in the United States, &c., shall be punished, &c. In the state of Maryland there are numerous decisions, ancient and modern, enforcing this incapacity to testify upon convictions in other states and countries, and upon reason it would seem that a person would be as much degraded by conVOL. LXXX-37 Opinion. viction of an infamous offence in one state as in any other. The courts have not uniformly decided this question the same way. In some states the conviction in another state is not recognized in the determination of this question. Uhl's case was decided in 1849, and the Statute of 1847-8 provided for the cases in which conviction for infamous offences should disqualify a witness. It is there provided, that "a person convicted of felony shall not be a witness, unless he has been pardoned or punished therefor," &c. Offences punishable by death or confinement in the penitentiary under our law are declared to be felonies. All other offences of every sort are grouped together by the legislature and called misdemeanors. Petit larceny is a misdemeanor, the punishment of which is prescribed by statute, and by express enactment of the law it can be punished in no other way than as is prescribed by statute. The common law rule as to disqualification of a witness, on account of previous conviction of an infamous offence, has been suspended in this state by statutory enactments, as indeed it has been to a great degree in England by acts of Parliament; and while it is otherwise in some of the states, in Virginia a conviction for petit larceny does not disqualify a witness from appearing as such in a case, and the circuit court having properly so decided, the first exception must be overruled. As to the second exception, the attempt of the plaintiff to impeach the witness, by proving particular acts and offences, committed by him, was properly overruled by the circuit court and his efforts properly limited to proof of general character for truth, etc. The hand of the accused appearing immediately after the homicide to be stained on the inside and the outside, and daubed between the fingers with blood, and the knife in his pocket, with which the killing was done, being smeared with blood, so that it came off on the hands of all who touched it; the evidence of these facts was properly admitted, without any chemi |