Ashley v. Com.
| Decision Date | 11 January 1980 |
| Docket Number | No. 790025,790025 |
| Citation | 261 S.E.2d 323,220 Va. 705 |
| Court | Virginia Supreme Court |
| Parties | George Felix ASHLEY, Jr. v. COMMONWEALTH of Virginia. Record |
Archer L. Jones, II, Richmond (Jones & Jones, P.C., Richmond, on brief), for appellant.
Linwood T. Wells, Jr., Asst. Atty. Gen. (Marshall Coleman, Atty. Gen., on brief), for appellee.
Before CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.
Tried upon an indictment charging him with grand larceny, George Felix Ashley, Jr., was found guilty by a jury, which fixed his punishment at a fine of $1,000; judgment was entered upon the jury verdict. The sole question raised by Ashley on appeal is whether certain testimony which the trial court admitted over his objection constituted inadmissible hearsay.
On November 22, 1976, the management of I.T.T. Gwaltney, Inc., at Smithfield, discovered that some cooked hams were missing. Lee Marshall, the company's Security Director, examined 20 empty ham boxes lying on the loading dock. He wrote down the weights stamped upon the sides of the cartons, and then reviewed the report of an inventory taken on the preceding Saturday, November 20, to confirm the absence of the 20 hams. Marshall testified that the total weight of the missing hams, as shown by the notations stamped upon the empty boxes, was 249 pounds, 3 ounces, with a total value as shown on the inventory of $712.14. The inventory records were no longer in existence at the time of trial.
Ashley, a Gwaltney employee who had been working at the plant over the weekend, had access to the hams. On December 16, 1976, he was questioned by Marshall and two police officers. Ashley signed a statement in which he asserted that during the preceding 30 days he had purchased from the Gwaltney ham store, maintained for the benefit of employees, seven hams varying in price from $16 to $26 each that he had sold to friends in North Carolina. He also stated that he had in his possession six hams that he had purchased at the ham store on two occasions approximately one week before Thanksgiving for more than $20 each; and that he did not order the hams in advance, but purchased them, unboxed, off the shelf at the store. When discrepancies in his statement were called to his attention, Ashley made no attempt to explain his answers and finally said, "I guess you caught me in another lie".
Marshall and the officers accompanied Ashley to the trailer where he resided; his refrigerator contained six unboxed hams corresponding to six of the missing hams described on the inventory. One of the police officers testified that later in the day when he expressed surprise at Ashley's conduct, Ashley replied, "When it is all over I will tell you how I done it". Photographs of the six hams were introduced into evidence.
A witness for the Commonwealth testified that he had twice purchased unboxed cooked hams from Ashley in October or November, the first time acquiring two, and later another five, for $18 each. According to this witness, Ashley explained that he had bought the hams from Gwaltney at a favorable price because they had not been sold by a specified deadline.
The manager and the cashier of the Gwaltney ham store testified to the procedure followed in selling hams. All hams purchased by employees were ordered in advance pursuant to order blanks signed by the purchasers, and all hams sold through the store were packaged in individual cartons. The manager said that Ashley had not purchased any hams, and that the cooked hams had a value of approximately $2.65 per pound at the time the missing hams were taken.
Ashley, who offered no evidence at trial, contends that the trial court committed reversible error in admitting, over his objection, Marshall's testimony as to the loss, weight, and value of the hams. This testimony, Ashley argues, was based upon business records that Marshall did not maintain, rather than upon his personal observation, and was not...
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