STATE V. HARRISON.

[66 VERMONT, 523.]

BURGLARY-HOW CORPUS DELICTI MAY BE PROVED.-On an information for burglary the state may prove the corpus delicti, before showing the defendant's connection with the crime. Hence, if two of three defendants charged with that crime plead guilty, the fact of the breaking and entering and the larceny of certain goods may be proved by these two although they testify that the crime was committed by themselves, and that the third defendant had no connection with it. BURGLARY-POSSESSION OF STOLEN PROPERTY AS EVIDENCE.-Upon a prosecution of three persons for burglary, where two of them plead guilty, the state may prove by the arresting officer that part of the property stolen was found upon the persons of the two who pleaded guilty and that the remainder was found upon the person of the other defendant, as this would tend to connect him with the crime. TRIAL-JURY MAY FIND STATE'S EVIDENCE TO BE TRUE IN PART AND FALSE IN PART.-In a joint prosecution for burglary, where two of the defendants turn state's evidence, it is not for the jury to give full credence to all of their testimony or to wholly reject it. They may well find, upon a consideration of all the evidence, that a part of such testimony is true and the rest false. INSTRUCTIONS-FULLER INTRUCTIONS MUST BE REQUESTED. -No exception lies to the failure of the court to give fuller instructions upon a given point, upon which correct instructions have been given, in the absence of a request therefor by the excepting party.

INFORMATION FOR BURGLARY. Verdict, guilty. The respondent excepted. The information was a joint one against the respondent and three others. One of the others was acquitted by order of the court. The other two pleaded guilty be fore the trial of the respondent. These two were called as witnesses by the state. A portion of the stolen property was found upon the persons of those who pleaded guilty, and the remainder was found upon the person of the respondent. The former testified that the respondent was not present and did not advise or assist in the commission of the crime. The respondent excepted to the admission of the testimony of the two defendants who pleaded guilty, to the testimony of Officer Moe, to the charge of the court, and to the refusal of the court to direct a verdict in his favor. No testimony was introduced by the respondent.

E. A. Cook, for the respondent.

W. W. Miles, state's attorney, for the state.

526 Ross, C. J. 1. The respondent was tried upon an information charging him and three others with breaking and

entering a store at South Barton, in the night-time, with intent to steal. Two of the others, Smith and Roderick, pleaded guilty and were used by the state as witnesses against the respondent. That portion of their testimony excepted to was properly admitted to establish the commission of the crime charged, and that certain property was stolen from the store. It was none the less admissible because their testimony, if believed, would establish that they, without the presence or aid of the respondent, broke in and entered the store and stole the goods therefrom. The state might properly show the corpus delicti before showing the respondent's connection with it.

The testimony of the officers, Moe and Bell (who made the arrest), excepted to, was to the effect that part of the goods taken from the store was found on the persons of the two who pleaded guilty and a part on the respondent, and had a tendency to show that the three were engaged in the commission of the crime. There was no error in admitting this testimony. The exception to the testimony of Orcutt is not now insisted upon.

527 2. At the close of the testimony produced by the state the respondent rested, and made a motion that the court order a verdict in his favor, for that the evidence was insufficient to warrant a conviction. The court properly overruled this motion. The respondent's counsel contends that there was error in this action of the court, mainly on the ground that it was the duty of the jury either to give credence to all of the testimony of the two respondents who pleaded guilty, or wholly to reject their testimony; and that, treating this testimony introduced by the state either way, the remaining testimony would be insufficient to connect the respondent with the commission of the crime. But this contention is not sound. It was for the jury, and not for the court, to consider and weigh the testimony of the two respondents who had pleaded guilty, and to determine what portion of it they would believe, and what they would disbelieve, as the other uncontroverted facts in the case might indicate, that their testimony was true or false. The relations of the state to the witnesses it may introduce are different from that of a private party. The state has no partisan ends to serve. It has as much interest to clear the innocent as to convict the guilty. Hence it is under a duty to produce and use all witnesses, of whatever char

AM. ST. REP.. VOL. XLIV. — 55

acter, whose testimony may shed light upon the investigation and aid the jury in arriving at the truth: State v. Magoon, 50 Vt. 333.

The jury might well believe that portion of those respondent's testimony which showed that the respondent Harrison was with them in their journeyings for some time both before and after the commission of the burglary and theft; that he was at South Barton with them just before the commission of the crime, and again at Barton very soon after, and reject the improbable portion that he left them just before the commission of the crime, and met them in the darkness of the night just after at Barton, and went with them, carrying the stolen goods, all through the night, to the barn 528 near Newport, where they slept until near noon the next day. Their account, too, of the way they came to give him the stolen property found on him was unnatural and almost incredible. His connection with the respondents, who pleaded guilty, both before and after the commission of the crime, his presence at the place just before the commission, his possession of part of the stolen property, his false account of where and how he obtained it, as well as their improbable story of his leaving them at South Barton just before the commission of the crime, and meeting them in the dark at Barton just after, and how he came to take and use the stolen property, was all evidence proper for the jury to consider and weigh, as tending to show respondent Harrison guilty.

3. It is not seriously contended that there was error in the charge of the court excepted to; but it is contended that the court ought to have explained more fully. The charge given, in so far as it told the jury that if they found, beyond a reasonable doubt, that the respondent falsified in the account he gave of when and where he came into possession of the stolen property, such action was a circumstance tending to show him guilty, was correct, and if the respondent's counsel desired, and thought further instruction on this point necessary, he should have requested it. There was no error in not giving further unrequested instruction on the point, inasmuch as the instruction given was correct and fully covered the point.

Judgment; there is no error in the proceedings of the county court, and that the respondent takes nothing by his exceptions.

CORPUS DELICTI.-While the corpus delicti must be established beyond reasonable doubt the means of proof are not restricted. It may, there

fore, be proved even by circumstantial evidence: See monographie note to State v. Williams, 78 Am. Dec. 252, 253, on proof of corpus delicti; People v. Palmer, 109 N. Y. 110; 4 Am. St. Rep. 423, and note; Willard v. State, 27 Tex. App. 386; 11 Am. St. Rep. 197, and note.

BURGLARY-LARCENY-RECENT POSSESSION OF STOLEN PROPERTY AS EVIDENCE OF GUILT.-In State v. Warford, 106 Mo. 55; 27 Am. St. Rep. 322, it is said that the presumption of guilt arising from the recent possession of stolen goods is applied in cases of burglary and larceny as well as to cases of larceny; and in the note to People v. Richards, 2 Am. St. Rep. 397, on burglary, that the mere possession of the stolen goods unaccompanied by other evidence is not prima facie evidence of burglary and that herein the rule differs from that in larceny. We apprehend that the true rule is that the late possession of stolen property alone is not sufficient to sustain a verdict of guilty of larceny; but is merely a circumstance tending to show guilt: State v. Duncan, 7 Wash. 336; 38 Am. St. Rep. 888, and that this is the rule in burglary.

IN APPLYING THE MAXIM FALSUS IN UNO, FALSUS IN OMNIBUS, where a witness has testified willfully false as to any fact, the jury should not reject such portions of his testimony as may be corroborated by other unobjectionable evidence in the cause: Crabtree v. Hagenbaugh, 25 Ill. 233; 79 Am. Dec. 324.

INSTRUCTIONS.-The general rule is, that a court is not bound to instruct the jury unless required by one party or the other to do so; and that an omission to instruct, unless requested by one party or the other to do so, is no ground of exception, and is not error or available on motion for a new trial, or sufficient to reverse the verdict or judgment: See monographic note to Strohn v. Detroit etc. R. R. Co., 99 Am. Dec. 118, discussing the subject of instructions,

BULLARD V. THORPE.

[66 VERMONT, 599.]

A WRIT OF PROHIBITION IS a writ directed to the judge and parties to the suit in any inferior court commanding them to cease from the prosecution thereof, upon a suggestion that either the cause originally, or some collateral matter arising therein, does not belong to that jurisdiction, but to the cognizance of some other court.

A WRIT OF PROHIBITION DOES NOT LIE TO PREVENT ERRORS AND IRREGULARITIES if the matter adjudged is within the jurisdiction of the tribunal. A WRIT OF PROHIBITION MAY ISSUE, THOUGH THE RECORD ON ITS FACE shows the court to have jurisdiction, if it appears by extrinsic evidence that such showing is false.

PLEDGE OF SEVERAL ARTICLES AND ACTIONS THEREFOR.-If several articles are pledged to secure a loan the pledgor's right of action upon the pledgee's failure to return the property on demand is entire. He cannot maintain a separate action for each article.

PLEDGE-ONE ENTIRE CONTRACT.-If several items of property are pledged at one time, for one sum, and no reason exists for a demand of the several items at separate times, it is one entire contract.

A JUDGMENT FOR A PART OF ONE ENTIRE DEMAND is a conclusive bar to any other suit for another part of the same demand.

ACTIONS-CONSOLIDATION OF.-It is a common practice to consolidate actions pending in the same court that might have been brought in one action. A WRIT OF PROHIBITION WILL ISSUE TO PREvent the SplITTING UP OF AN ENTIRE INDIVISIBLE CLAIM so as to give a justice of the peace jurisdiction, if that judicial officer insists on proceeding, notwithstanding the objections interposed.

PETITION for a writ of prohibition to prevent the petitionees from proceeding with certain suits against the petitioner. Dee & George, for the petitioner.

M. Buck, for the petitionees.

600 TAFT, J. This is the first instance in this state, within our knowledge, of a petition for a writ of prohibition. No mention is made of one in our reports and it is first mentioned in legislation in the revision of 1839, when the supreme court was given power to grant one. That provision still exists in the Revised Laws, section 782. The writ may issue if "necessary to the furtherance of justice and the regular execution of the laws." The proceedings to obtain one are regulated by the Revised Laws, chapter 74. The object of the writ in this jurisdiction can be accomplished generally by appeal, exception, or writ of error. One never issues it if there is other adequate remedy. It is an ancient and valuable writ, the use of which in all proper cases should be upheld and encouraged, as it is important to the due and regular administration of justice that each tribunal should confine itself to the exercise of those powers with which, under the constitution and laws of the state, it has been intrusted. The writ is so ancient that forms of it are given in Glanville (Beames' translation), pages 56, 97, et seq., the first book of English law, written in 1189, and mention is made of it in nearly all the treatises upon the common law, and the early reports. The object and scope of the writ is stated in 3 Blackstone's Commentaries, 112, as "A writ directed to the judge and parties of a suit in any 601 inferior court, commanding them to cease from the prosecution thereof, upon a suggestion that either the cause originally or some collateral matter arising therein does not belong to that jurisdiction, but to the cognizance of some other court."

The writ goes against "as well the party and his counsel as the judge himself": 5 Jacob's Law Dictionary, 1st Am. ed., 316. If a court has no jurisdiction of a cause, nor of a collateral matter incidental thereto, prohibition is an appropriate remedy, if the party aggrieved has no other relief.