Myers v. Commonwealth

111 S.E. 463, 132 Va. 746, 1922 Va. LEXIS 74

• Court: Supreme Court of Virginia
• Decided: March 16, 1922
• Status: Published

Opinion

Sims, J.,

after making the foregoing statement, delivered the following opinion of the court.

[1] One of the assignments of error in the petition is as follows:

“The court erred in failing and refusing to sustain objections to the admissibility of the evidence as shown by the exceptions in the record noted.”

There is no bill of exceptions or certificate of the judge in the record pointing out the rulings complained of in the assignment of error just referred to. The exceptions mentioned in this assignment of error are contained in the general bill of exceptions certifying all of the evidence and noting at intervals that objections were made to the admissibility of evidence, that the objections were overruled by the court and exceptions taken. It is well settled that this is not sufficient to bring up such rulings, or any of them, for review on appeal. Norfolk & Western R. Co. v. Shott, 92 Va. 34, 22 S. E. 811, and cases therein cited; and Kibler’s Case, 94 Va. 804, 813, 26 S. E. 858.

Therefore, the assignment of error just mentioned will not be considered.

The questions raised by the other assignments of error will be disposed of in their order as stated below.

1. Is the indictment sufficiently specific in its description of the property alleged to have been stolen?

This question must be answered in the affirmative.

[2, 4] The indictment, since it contains only one count, must be regarded as an indictment for car breaking. Speers’ Case, 17 Gratt. (58 Va.) 574; Vaughan’s Case, 17 Gratt, (58 Va.) 576; Butler’s Case, 81 Va. 159. Concerning the sufficiency of the description, in such an indictment, of the property alleged to have been stolen, this is said in Vaughan’s Case, just cited: “* * * allegation of an actual larceny is only in aid of the allegation of intent. If the allegation were struck out altogether, enough would remain to describe the offense of which the prisoner has been convicted. Such being the object for which the charge of an actual larceny is introduced in cases of this character, it need not be laid with the same formality as in an indictment for the larceny itself.” (Citing cases.) “It is always better, however, to lay the charge of larceny in proper form, to avoid objection in case the prisoner should, as he may, on such a count as this, be found not guilty of the breaking and entering, but guilty of the larceny.” See to same effect Wright’s Case, 82 Va. 183.

The indictment in the case in judgment is sufficiently specific in its description of the property stolen to have sustained a conviction of larceny thereunder, even if it had contained no other description of the property stolen than the species or names of the articles, their number, and the name of the special owner thereof (this being a case of special ownership or bailment, the goods having been stolen from a common carrier—a special owner), all as set forth in the indictment. 2 Bish. New Cr. Proc. (4th ed.), sections 699, 700, 702, 710. The indictment, however, also names the consignees to whom the property was shipped. This furnished further means of identifying the property beyond all reasonable doubt. Therefore, in any aspect of the case, the indictment was sufficient in its description of the property.

[5] 2. Did the court err in giving instruction X, copied in the statement preceding this0opinion?

This question must be answered in the negative.

The only portion of this instruction which is claimed to have been erroneous is italicized in the copy of it appearing above. The material portion of the instruction reads as follows:

“If you believe from the evidence beyond a reasonable doubt * * * that the defendants, or either of them, broke and entered the railroad car with intent to commit larceny therein, you should find them guilty, as charged in the indictment * *

It is obvious that if this language were to be understood as meaning literally and in the abstract what it says, the instruction would be erroneous. • But every instruction must be construed in the light of the evidence which has been introduced before the jury. In the case in judgment, the circumstance that both of the accused were seen together and were shown by the evidence to have acted in concert in the occurrences which most incriminated them, prominently appears from the record. And it is so obvious, when the instruction is read in the light of the evidence, that the jury were intended to be instructed that they could find both of the accused guilty of the car breaking if they believed that only one of them did the breaking, only in the event that the jury believed from the evidence that the other, in such case, was aiding and abetting the commission of the offense; and, indeed, a different understanding of the instruction would have been so plain a direction to the jury to find a verdict that would shock the sense of justice of every one, that we are satisfied the jury were not misled by the instructions to the prejudice of either of the accused.

[6] 3. Did the court err in refusing to give instruction A, asked for by the accused?

It will be observed that it was not asked that the jury be told by this instruction that the mere evidence of the possession referred to was not of itself sufficient to establish the guilt of the accused of the crime of the car breaking. The instruction as asked would have told the jury, in substance, that the possession referred to was not a circumstance which they could consider at all as evidence of the guilt of the accused of the crime of the car breaking. Such an instruction, according to all of the authorities, would have been erroneous. 2 Bish. Cr. Proc. (4th ed.), sections 152, 739-747, and the authorities cited in the notes to these sections; Henderson’s Case, 98 Va. 800, 34 S. E. 881; Gravely’s Case, 86 Va. 396, 10 S. E. 431; Hall’s Case, 3 Gratt. (44 Va.) 593; Wright’s Case, 82 Va. 183; Branch’s Case, 100 Va. 837, 41 S. E. 862; Tyler’s Case, 120 Va. 868, 91 S. E. 171; Stallard’s Case, 130 Va. 769, 107 S. E. 722; Elmoe’s Case, ante, p. 529, 110 S. E. 257; State v. Brady, 121 Iowa 561, 97 N. W. 62, 12 L. R. A. (N. S.) 199, and note thereto, and authorities therein cited.

As said in 2 Bish. New Cr. Proc., sec. 152, supra: “The goods stolen—in a burglary, as connecting the defendant with the corpus delicti, his recent possession of them, whether charged in the indictment to have been stolen or not, the circumstances of the possession and how far he accounted therefor, may be shown. We shall see (post, sections 739-746), that in cases of pure larceny, opinions are not quite uniform upon the effect of this evidence; it is the same in burglary. The question is much influenced by the facts special to the particular case. In reason, the. jury, not the court, should determine what this evidence proves. * * *” (Citing numerous authorities and among them Gravely’s Case, supra (86 Va. 396, 10 S. E. 431).

[7] As said in Gravely’s Case: “* * * Where the goods have been obtained by means of a burglary or house breaking, the fact of such possession is a most material circumstance to be considered by the jury, and where, in addition to such possession, other inculpatory circumstances are proved, such, for example, as the refusal of the accused to give any account, or his giving a false account, of how he came by the goods, such proof will warrant a conviction. In other words, to use the language of the books, there should be some evidence of guilty conduct, besides the bare possession of the stolen property,’ before the presumption of burglary or house breaking is superadded to that of the larceny * *

[8,11] As held by all the modem cases, including all of the cases in Virginia on the subject, the conclusion to be drawn from the circumstances of the possession of the stolen goods, in cases of the character of that in judgment, is one of fact, and not of law, and is one which is peculiarly and solely in the province of the jury. And it is a subject more than ordinarily beset with difficulties and on which any instruction which may be given by the court must be phrased with very great care indeed so as not to infringe upon the prerogative of the jury as sole judges of the credibility and weight to be given to the testimony. The issues of fact involved in such case are frequently numerous and, under our practice, the evidence bearing upon such issues need to be weighed and considered by the jury, where there is a trial by jury, uninfluenced by the opinion of the trial judge. There is the corpus delicti to be proved before any inference of guilt can arise from the possession of the fruits of the crime. 2 Bish. New Cr. Proc., secs. 152 ;and 739-(2). Then there are the special facts of the particular case concerning the circumstances of the possession, in connection with the other evidence. The significance of the possession will vary with the special facts and the other evidence in each case; among which are the nearness or remoteness of - the proven possession to the crime charged; the nature of the thing possessed, as passing readily from hand to hand or not, or as likely or not likely to have been put by another in the possession of the accused without his knowledge at the time; whether any explanation is given by the accused of the possession; whether, if the accused is silent on the subject, his silence, under the circumstances, is consistent with his innocence of the crime imputed to him; what explanation is given of the possession, where the accused undertakes to give one; together with such other circumstances as ought reasonably to influence a juror’s opinion. 2 Idem,, sec. 740; Kibler’s Case, 94 Va. 804, 814-15, 26 S. E. 858. What is said above is subject to this qualification: As said in 2 Bish.- New Cr. Proc., sec. 742: “The just doctrine would seem to be that if the possession is very remote, yet how remote must depend on the special facts of the case, the judge, at his discretion, will exclude it as having no sufficient tendency to prove anything * * It is not claimed, however, in the case in judgment, that the possession wtas so remote as to come within this qualification.

The record in the case before us shows that there were “other inculpatory circumstances proved,” and “some evidence of guilty conduct” of both of the accused, “besides the bare possession of the stolen property.” Hence, we have no hesitancy in' holding that the trial court committed no error in refusing to give the instruction under consideration, which, in substance, would have made the court say to the jury, as a conclusion of law, that they could not consider the evidence as to the possession of the stolen goods, even though they might believe from the evidence that there were other inculpatory circumstances proved, and other evidence of guilty conduct of both of the accused, besides the bare possession of the stolen' property.

[12] 4. Did the court err in refusing to set aside the verdict? • '

The indictment containing but one count, and the verdict, being a general one, was a verdict finding the accused guilty of the major offense of car breaking, charged in the indictment. Speers’ Case, supra (17 Gratt. [58 Va.] 574); Butler’s Case, supra (81 Va. 162).

The position is taken for the accused that, even if the evidence with respect to the possession of the stolen goods could have been properly considered by the jury, “there is not a syllable of evidence in the record to connect, (the accused) with the robbery of (the) car * * * and while the possession of recently stolen articles raises the presumption of a larceny of the articles, it has never been held that the possession of the stolen property, unaccompanied with any guilty conduct, could raise the presumption of house breaking.” Citing Henderson’s Case, Gravely’s Case and Branch’s Case, supra.

[13] It is unnecessary for us to consider here whether there is, accurately speaking, any difference between the rule prevailing in modern times in almost, if not quite, all of the jurisdictions, including Virginia, upon the subject of the inference of guilt of the accused which the jury may be warranted in drawing from the circumstances of the possession of stolen property, in larceny, as distinguished from burglary or house breaking cases, further than to say this: There are statements in the opinions in a number of the cases in Virginia to the effect that “the general rule of the common law” on the subject iñ cases of larceny has never been held in Virginia to apply to the same effect in cases of burglary or house breaking. But the fact remains that the rule which the Virginia cases lay down as applicable to cases of burglary and house breaking is, in truth, precisely the same as “the general rule of the common law” on the subject as applied to larceny cases, according to Mr. Bishop and the great weight of authority.

In Wright’s Case, supra (82 Va., a,t p. 188), indeed, this is said: “Though the mere possession of the stolen property might not be prima facie evidence of the burglary or house breaking charged, yet, in connection with other evidence of such burglary or house breaking, evidence of such possession of stolen goods is admissible, and upon proof of a larceny having been committed, and of the goods stolen having been found shortly afterwards in possession of the prisoner, the general rule will attach that * * * it is incumbent upon the prisoner to prove how he came by the property, otherwise the presumption is that he came by it feloniously. Russell on Crimes, Ed. 1887, p. 123; Davis’ Crim. Law, p. 193; 3 Greenleaf Ev., sec. 31; 3 Rob. Prac., old, p. 224.” This is a statement of the rule under consideration, as applicable to burglary and cases of that character, almost, if not precisely, in the very form in which the oldest authorities lay it down as applicable to oases of larceny. In Branch’s Case, supra (100 Va., at pp. 839-840, 41 S. E. 862), the modern doctrine on the subject, applicable alike to the former class of cases just mentioned and to larceny cases, is approved as in force in Virginia, by citing the same sections of. 2 Bish. New Cr. Proc., as those we have above cited. In the opinion of the court in Branch’s Case, 100 Va. at pp. 839-40, 41 S. E. 862, 863, this is said: “* * * recent unexplained possession of stolen goods is a pregnant circumstance and, accompanied by other incriminating facts, may be conclusive of guilt of the * * * crime of breaking the house from which it is shown that the goods were stolen; and if the recent possession by the accused of articles stolen from the house broken into is proved, and it appears that he could only have gotten the articles by taking them from the house feloniously entered, this would seem to be sufficient to convict him of house breaking. Whart. Cr. L., sec. 1605; Bish. Cr. Proc., sections 152, 739 and 747; Walker’s Case, 28 Gratt. (69 Va.) 969.” And Gravely’s Case is also cited and the doctrine of that case is restated.

And in Stallard’s Case, supra, this is said: “The jury might have convicted of larceny only, upon the evidence of recent unexplained and exclusive possession of stolen goods, but when to the evidence of such possession was added the evidence that the goods were initially acquired by entry of Sivert’s barn in the nighttime, and a false account of how defendant came'by the goods, the jury were justified in convicting the prisoner of the higher offense.”

There can, indeed, be little doubt but that, in the particular under consideration, as in others, there has been a development and improvement in the condition of the law in modern times. Not that the law" itself has changed, but the statement of it has changed. As said in 2 Bish. New Cr. Proc., sec. 740 (3) : “* * * the doctrine in some of our States is not now the same as in earlier years.” - (Referring to numerous cases in thirty of the American States and in England.) “It will be comforting to the well-wishers of oür jurisprudence, who examine these cases, and who remember the condition of the law on this subject fifty years ago, to note that very little now remains in our reports of unfortunate old doctrines which have melted before inflowing light.”

It would take us too far afield to here pursue the inquiry as to what is the precise rule, stated as aforesaid as applicable in larceny cases, to which reference is made in some of the cases of burglary and house breaking in Virginia. It is sufficient here to say that the rule, as stated in the last-named cases as applicable to burglary and the like character of cases, is, in substance, the same as laid down in the quotation we have made above from Gravely’s Case.

[14] The precise question we have presented for our decision, therefore, is this:

5. Does proof that the initial wrongful possession of the goods in question was obtained by means of the felonious breaking and entering, coupled with the further proof (a) of actual false swearing by the accused on the subject ojj the possession of the stolen goods (such as,- for example, on voluntarily taking the stand as a witness, his testifying that he never had any possession of any of the stolen goods, when there is ample evidence for the Commonwealth to the contrary), or (b) of his giving a false account of the possession of the stolen goods; or (c) that the offenses of the breaking and entering and of the larceny were committed at the same time and by the same person or persons, and the circumstance that the accused, although testifying as a witness in the ease, does not claim that he obtained the possession of the goods from any one or in any other way than by means of the felonious breaking and entering—furnish sufficient evidence of the “other inculpatory circumstances,” or other “guilty conduct, besides the bare possession of the stolen property,” which, according to the authorities, will support a verdict of the jury finding the accused guilty of the crime of the breaking and entering with the intent to commit larceny?

We are of opinion that in any one of the three situations stated, there would be sufficient evidence of the super-added facts mentioned to support such a verdict. And, as appears from the statement preceding this opinion, all three of these situations appear from the record in the case before us, as the jury were warranted by the evidence in finding, and involve both of the accused, with respect certainly to some of the raincoats, and some of the shoes also, which constituted portions of the stolen property according to the evidence for the Commonwealth.

It should be said that in all of the Virginia cases which have been referred to. in argument, and which have been cited above, in which convictions of burglary or housebreaking have been sustained, there were some circumstances in evidence, such as tracks supposed to be those of the accused, or possession of tools supposed to> have been used in the breaking, or other like circumstances, to connect the accused with the breaking and entering; and in none of these oases did the conviction rest upon such situations as (a), (b). or (c), aforesaid,.alone;, but the court did not base its decisions, in these cases upon the existence of .such special circumstances; and, in reason and upon just principles, which are elaborated in the authorities above cited and need not be further set forth here, in such situations the possession of the stolen property cannot be said to be unaccompanied by evidence of guilty conduct, and the guilty conduct, which the evidence tends to prove, is, in such situations, so inextricably linked up and connected .with the felonious breaking and entering that it has convincing probative value as tending to establish the guilt of the accused of that offense; and, where a verdict of guilt of such offense is returned by the jury, must be considered as evidence supporting the verdict in its finding connecting the accused with such offense.

[15] As said in Elmoe’s Case, supra: “It is unnecessary for us to say anything as to the right of the accused to remain silent as to how he obtained the goods, as he did not remain silent.” Both of the accused in the case in judgment voluntarily took the stand as witnesses, land a defense which they did not make for themselves in their testimony, such as that they obtained the possession of the stolen property from some one else, who may have committed the offense of car breaking, cannot be regarded by us as entitled to sufficient weight to disturb the verdict of the jury in view of all the evidence in the case; and the guilty conduct of both of the accused in false swearing cannot be said by us not to have been evidence tending to show their guilt of the car breaking.

[16] 6. D'id the court err in refusing to give instruction B, asked for by the accused, to the effect that it was incumbent on the Commonwealth to. prove that the general owners of the goods were deprived of such ownership ?

This question must be answered. in. the negative.

As said in 2 Bish. New Cr. Proc. (4th ed.), secs. 720, 721:

“2. Where there is both a general and special owner, the rule is nearly universal that the pleader may charge the goods as belonging to either, though often the convenience of making, proof will suggest practical grounds for choice. For example—

“3. Goods stolen from a common carrier—may be laid •as his or as the general owner’s. More fully—

“Sec. 721. 1. Special ownership.—The rule is general * * * that where chattels are taken feloniously from .any bailee or other special owner * * * the ownership may be laid either in such possessor or the real owner, at the election of the pleader.”

[17] In the case in judgment the special ownership of the ■common carrier was laid in the indictment by allegation •of the facts constituting such ownership, and such facts, .and, hence, such ownership, was proved at the trial. Such being the case, proof of the general ownership and loss by the general owner was unnecessary.

There is but one remaining question presented for our decision by the assignments of error, and that is this:

[18] 7. Did the court err in refusing to give instruction C, asked for by the accused, which was as follows: “The court instructs the jury that there is no evidence in this case to support the charge of car breaking.”

We have a statute (section 6003 of the Code) which expressly forbids such an instruction being given in civil cases. As held in Montgomery’s Case, 98 Va. 852, at page 856, 37 S. E. 1, it is not the practice in the courts of this State to give such an instruction in criminal cases. And, besides, since the Commonwealth has no appeal in' criminal cases such as that in judgment and, hence, has no means of correcting the error if such an instruction is erroneously given in such cases, it is manifest that the inauguration of the practice of giving such instructions as that in question cannot be approved by the courts, although not forbidden by statute.

The case will be affirmed.

Affirmed.