Booth v. Commonwealth

• Decision Date: 10 January 1936
• Citation: 183 S.E. 257
• Parties: BOOTH . v. COMMONWEALTH.
• Court: Virginia Supreme Court

183 S.E. 257

BOOTH .

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Jan. 10, 1936.

Error to Corporation Court of Lynchburg.

Charlie Booth was convicted of robbery, and he brings error.

Affirmed.

Argued before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, and EGGLESTON, JJ.

Hester & Hester, of Lynchburg, for plaintiff in error.

A. P. Staples, Atty. Gen., and Edwin H. Gibson, Asst. Atty. Gen., for the Commonwealth.

EGGLESTON, Justice.

The petitioner was convicted on a charge of robbery and sentenced to eight years in the penitentiary.

We are first asked to reverse the judgment on the ground that there was a fatal variance between the indictment and the proof. The petition states that the indictment alleged that the money stolen belonged to R. E. Thompson, whereas the evidence showed that it was the property of D. Pender Grocery Company, which owned and operated the store of which Thompson was the manager.

This contention of the petitioner is without merit for two reasons. In the first place, no question of the variance between the allegation and the proof was raised in the court below. No objection was made to the admissibility of the evidence and no motion was made to exclude it on account of the supposed variance. It is well settled in Virginia that such objection cannot be raised for the first timeon appeal. Burks' Pleading and Practice (3d Ed.) p. 577, § 308; Southern R. Co. v. Finley, 127 Va. 132, 138, 102 S.E. 559, and cases there cited. The reason for such holding is that if the attention of the trial court had been called to the alleged variance, it could have been cured by an amendment to the indictment under Code, § 4878. Robinson v. Com. (Va.) 183 S.E. 254, decided at this term.

In the second place, as it is said in 23 R.C.L. p. 1154, § 20, "The great majority of the reported cases uphold the rule that an indictment for larceny, robbery, or some other crime based on a larceny, which alleges ownership in a certain person, will be sustained by proof that such person is the agent or bailee of the true owner, or has, in behalf of the owner, the control, care, and management of the property stolen." See, also, State v. Carroll, 214 Mo. 392, 113 S.W. 1051, 21 L.R. A.(N.S.) 311, and note; Clark's Criminal Law (2d Ed.) p. 326; State v. Hackle, 110 W.Va. 485, 158 S.E. 708, 710. In State v. Montgomery, 181 Mo. 19, 79 S. W. 693, 67 L.R.A. 343, 2 Ann.Cas. 261, a conviction of robbery was upheld where the indictment charged that the money taken belonged to the clerk in charge of the store during the absence of his employer, while the evidence showed that the money was the property of the latter. Since Thompson was in charge of the store, and had custody of the money stolen, the allegation that he was the owner thereof was sufficient.

The principal assignment of error is that the lower court erred in refusing to.strike out the commonwealth's evidence and in refusing to set aside the verdict of the jury on the ground that it was contrary to the law and the evidence. The specific complaint under this assignment is that the evidence fails to prove that the accused was sufficiently identified as the person who committed the robbery.

The evidence on behalf of the commonwealth shows that about 10:30 o'clock on the night of Saturday, January 26, 1935, two men, armed with pistols and with their faces partly masked by handkerchiefs, entered the store of D. Pender Grocery Company at 510 Cabell street in the city of Lynchburg. The robbers covered with their pistols the manager of the store and the two other employees, compelled one of these to open the cash register, and took therefrom the sum of...