Allard v. Com., No. 770629

• Docket Nº: No. 770629
• Citation: 243 S.E.2d 216, 218 Va. 988
• Case Date: April 21, 1978
• Court: Supreme Court of Virginia

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243 S.E.2d 216 218 Va. 988 James Virgil ALLARD
v.
COMMONWEALTH of Virginia. Record No. 770629. Supreme Court of Virginia. April 21, 1978.

[218 Va. 989] 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 [218 Va. 988] I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, HARMAN and COMPTON, JJ.

[218 Va. 989] 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

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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 [218 Va. 990] 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...