Allard v. Com., 770629

Citation243 S.E.2d 216,218 Va. 988
Decision Date21 April 1978
Docket NumberNo. 770629,770629
PartiesJames Virgil ALLARD v. COMMONWEALTH of Virginia. Record
CourtSupreme Court of Virginia

Royston Jester, III, Royston Jester, IV, Lynchburg (Jester & Jester, Lynchburg, on brief), for plaintiff in error.

Robert H. Anderson, III, Asst. Atty. Gen. (Anthony F. Troy, Atty. Gen., on brief), for defendant in error.

Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, HARMAN and COMPTON, JJ.

HARRISON, Justice.

In this criminal appeal we consider whether the trial court erred in refusing to grant the defendant an instruction relating to the corroboration of the testimony of an accomplice. 1 James Virgil Allard, having elected trial by jury, was convicted in the court below of statutory burglary and sentenced to confinement for five years in the penitentiary.

About midnight on October 14, 1976, Lynchburg police officers discovered that a jewelry store operated by the Lynchburg Stamp & Seal Company had been burglarized. Thereafter, Lloyd Howard Rosser admitted that he had broken and entered the building, and he implicated the defendant, Allard, in the burglary. The defendant says that the testimony given by Rosser, an accomplice, was uncorroborated and that the court erred in not giving a cautionary instruction.

In the recent case of Dillard v. Commonwealth, 216 Va. 820, 224 S.E.2d 137 (1976), we enunciated the principles that determine when a cautionary instruction should be given in cases involving the testimony of accessories. There we noted that such an instruction should be granted in the absence of the corroboration of an accomplice's testimony. We rejected the defendant's argument that independent evidence supporting the ultimate fact that the accused committed the offense charged was required to be shown. We held that a less demanding test, the "relation to guilt standard", was the proper test and said:

"The corroborative evidence, standing alone, need not be sufficient either to support a conviction or to establish all the essential elements of an offense. If those were the requirements, and the Commonwealth had at hand independent evidence sufficient to satisfy them, then the need to use accomplice testimony would not arise.

"Where, therefore, the testimony of an accomplice is corroborated in material facts which tend to connect the accused with the crime, sufficient to warrant the jury in crediting the truth of the accomplice's testimony, it is not error to refuse a cautionary instruction. This rule applies even though the corroborative evidence falls short of constituting 'independent evidence which supports the alleged ultimate fact' that the accused committed the offense charged." 216 Va. at 823-24, 224 S.E.2d at 140.

In Dillard we quoted from Jones v. Commonwealth, 111 Va. 862, 869, 69 S.E. 953, 955 (1911), where we said: "(T)he corroboration or confirmation must relate to some fact (or facts) which goes to establish the guilt of the accused." We found the test in Jones to be the proper standard, observing that it was "not as rigid as the ultimate fact test". 216 Va. at 823, 224 S.E.2d at 140. In the instant case we must analyze the testimony to determine whether, as stated in Jones, the corroboration of the testimony of Rosser "related to some fact which goes to establish" the guilt of Allard, or, as stated in Dillard, such corroborative testimony "tends to connect" Allard with the burglary. If so, it was not error for the court to have refused a cautionary instruction.

Rosser testified at length regarding the events that led up to and followed the breaking and entering of the jewelry store on October 13th. He said that he and Allard got together in the early afternoon hours at his father's apartment; that they had several drinks there and that he and Allard "were together about all day from then on, and we went drinking, just messing around and stuff"; that Allard suggested that they break into the Lynchburg Stamp & Seal Jewelry Store because "we could probably get the money out of there"; and that, while he demurred at first, he was eventually persuaded to participate in the burglary. Rosser said that they entered the building about 10:30 or 11:00 p. m.; that although they searched through the store they were unsuccessful in their efforts to find any money; that after they left the building they went to a nearby bar, referred to in the evidence as the Virginia Grill and as Ginger's Diner, where they "drank a few beers". Rosser said that while they were in the bar he observed several Lynchburg policemen who were investigating the burglary which by then had been discovered by the police.

Rosser admitted that at the time of his arrest for breaking and entering the jewelry store he asked police officer Viar "if Mr. Allard had been charged with the same thing". It was after Rosser was told that his fingerprints had been found on some broken glass in the jewelry store that he confessed and gave the statement which implicated Allard.

M. D. Roach of the Lynchburg Police Department testified that he investigated the burglary on the night of the break-in and that in the course of the investigation he and other officers went to Ginger's Diner. He said that there he saw both Rosser and Allard, who were together. When asked if Allard did anything unusual on the occasion, he replied in the affirmative, saying that he (Roach) "remained outside along with several other police officers, and James Allard came up to me and wanted to know what we were doing". Roach said that Allard wanted to know "who we were...

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8 cases
  • State v. Vance
    • United States
    • West Virginia Supreme Court
    • January 22, 1980
    ...independent evidence sufficient to satisfy them, then the need to use accomplice testimony would not arise.' Allard v. Commonwealth, 218 Va. 988, 243 S.E.2d 216, at 217 (1978), quoting Dillard v. Commonwealth, 216 Va. 820 at 823, 224 S.E.2d 137 at 140 (1976)." (253 S.E.2d at In State v. Mes......
  • Watkins v. Com., s. 890094
    • United States
    • Virginia Supreme Court
    • September 22, 1989
    ...necessity of the cautionary instruction. Clark v. Commonwealth, 219 Va. 237, 242, 247 S.E.2d 376, 379 (1978); Allard v. Commonwealth, 218 Va. 988, 993, 243 S.E.2d 216, 219 (1978); Dillard, 216 Va. at 824, 224 S.E.2d at Although the majority recognizes the difference between a jury's right t......
  • Cardwell v. Com.
    • United States
    • Virginia Supreme Court
    • November 4, 1994
    ...not agree. The requested instruction should be granted only when the accomplice's testimony is uncorroborated. Allard v. Commonwealth, 218 Va. 988, 989, 243 S.E.2d 216, 217 (1978). The instruction need not be granted if the accomplice's testimony is corroborated "in material facts which ten......
  • Commonwealth v. Herring
    • United States
    • Virginia Supreme Court
    • June 5, 2014
  • Request a trial to view additional results

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