Castle v. Com.

• Decision Date: 08 September 1954
• Citation: 196 Va. 222,83 S.E.2d 360
• Court: Virginia Supreme Court
• Parties: RALPH CASTLE v. COMMONWEALTH OF VIRGINIA

Page 360

83 S.E.2d 360

196 Va. 222

RALPH CASTLE v. COMMONWEALTH OF VIRGINIA.

Supreme Court of Appeals of Virginia

September 8, 1954.

Quillen & Carter and Coleman & Coleman, for the plaintiff in error.

J. Lindsay Almond, Jr., Attorney General and Thomas M. Miller, Assistant Attorney General, for the Commonwealth.

JUDGE: SMITH

SMITH, J., delivered the opinion of the court.

The defendant, Ralph Castle, was jointly indicted with J. L. Christian for the larceny of 'three hams of meat (pork), of the value of $45.00; three sides of pork or middlings of the value of $35.00, of the goods and chattels of one C. D. Fields,' the son-in-law of Mr. and Mrs. T. B. Frazier, from whose smokehouse the meat was stolen. Upon his trial by a jury the defendant was found guilty of grand larceny as charged in the indictment and sentenced to two years in the penitentiary, to which judgment we granted this writ of error.

There are four assignments of error. The first and most vital is whether the evidence established beyond a reasonable doubt that the stolen meat was found in the exclusive possession of the defendant, thus raising the presumption that he was the thief. The other assignments deal with the refusal of the court to give certain instructions, and its failure to discharge the jury because of improper argument by the attorney for the Commonwealth.

A discussion of the first assignment of error requires a review of the evidence. The meat here involved was stolen on the night of March 23, 1952, from the smokehouse of Mr. and Mrs. T. B. Frazier who live five miles from Nickelsville and near Little Duck Road in Scott county, Virginia. The next day three Scott county officers found the meat in a house reputedly occupied by the defendant in the Warm Springs section of Scott county, about three miles south of Gate City, Virginia and a short distance from U. S. Route No. 23. Apparently the house is located near the Tennessee line and about twenty miles from the place of the theft. The meat was later identified as that stolen from the Frazier smokehouse.

Only two of three investigating officers testified and their descriptions of the house and its contents create uncertainty as to the nature of its occupancy; they disagreed as to whether the house contained two or three rooms, one or two beds and whether both doors of the house were open upon their arrival. They agreed, however, that the house was not enclosed by a fence, and was about forty feet from a well traveled highway and about 100 yards from the house occupied by the defendant's mother. The officers further testified that there was nothing in one of the rooms; some of the windows were broken; there was no wearing apparel found in the house; the house contained a stove, a table, chairs and cooking utensils in which meat had recently been fried, and that there were two or three quilts covering the stolen meat which was found on the table. No one was found in the house at the time of the investigation, but while the officers were there the defendant's wife and children came out of his mother's house.

The house had been serviced with electricity in the name of the defendant, but the records of the company showed that this service was discontinued on September 25, 1951.

The owner of the house, Mrs. Hattie Johnson, testified that it was occupied by the defendant when she inherited it in 1946 and that she had continued to rent it to him. She further stated that no rent had been paid on the premises since September, 1951; that although she went to collect the rent she had not seen the defendant there for over six months and when she last saw him he was at his mother's house. To a question whether there was any furniture in the house, she replied that somebody's was there but she did not know who owned it. She was further asked; 'Did he [defendant] ever state to you that he was moving out or had moved out'? She answered: 'He went away and I never would see him. His mother, I would always see his mother, and he wouldn't be there, * * *.'

There was undisputed testimony that the defendant and his wife were not living together, and that he had been living with his mother for at least one or two months prior to the time of the larceny. One witness, Kelly Darnell, testified that in February, 1952, he went to the house in question and that it presented the appearance of being abandoned. On this occasion, Darnell found the defendant at the home of his mother.

On April 13, 1952, the day before the return of the indictment in this case, officer Bill J. Pendleton went to the house where he found and 'picked up' a man named C. R. Bishop. The defendant was not there at that time but his wife was there making up the bed.

A sworn statement of J. L. Christian, now a fugitive from justice who lived about one mile from the house in which the stolen meat was found, was introduced in evidence. In this statement Christian admitted that he and his brother, now dead, stole the meat and stated that the defendant was not with them at the time of the theft. It also appears from this statement that the defendant and J. L. Christian left Kingsport, Tennessee soon after the theft and went to Cleveland, Ohio, at which place the defendant was apprehended. The defendant had to be extradited and he did not testify in his own behalf.

The Commonwealth sought to connect the accused with a strange car which was seen in the vicinity of the Frazier home on the evening of March 23, 1952, and described as an old gray or white 1941 Ford, with three or four people in it. This car was referred to in the sworn statement of J. L. Christian as owned by Marion Pleasant, who has also been indicted for the theft of the meat here involved, and as the car used to transport the stolen meat to the place where it was found. It had salt and grease in it similar to some found in the house and its tire treads were identified as similar to those found around the Frazier place and near the place where the meat was recovered. Mrs. Frazier testified that about 5:30 or 6:00 p.m. on March 23, 1952, she saw a strange light gray or tan old coupe with three or four persons in it pass her house but she did not recognize the occupants. She also testified that prior to the date of the theft she had seen the defendant in that community about twice a week and that on these occasions he visited a girl, the gate to whose home was approximately one hundred fifty feet from her house. Another witness, W. G. Winninger, testified that on a Sunday morning in the spring of 1952 he saw the defendant, Marion Pleasant and the two Christian boys in an old cream colored Ford, but he could not relate this to the time of the crime or say in what month of the spring he saw them.

The evidence obviously does not show directly and beyond a reasonable doubt that the defendant actually took the meat from the Frazier smokehouse or aided and abetted in the taking. Therefore in order to support the conviction the Commonwealth must rely on the presumption of fact, arising from possession of recently stolen property, that defendant was the thief. Hence we must inquire whether the evidence is sufficient to show beyond a reasonable doubt that the stolen meat was afterwards found in the exclusive possession of the defendant.

The rule laid down in Price v. Commonwealth, 21 Gratt. (62 Va.) 846, 869, is the law of Virginia applicable to this inquiry.

'If the property be stolen, and recently thereafter be found in the exclusive possession of the prisoner, then such possession of itself affords sufficient ground for a presumption of fact that he was the thief; and, in order to repel the presumption, makes it incumbent on him, on being called on for the purpose, to account for such possession consistently with his innocence. If he give a reasonable account of it, then it devolves on the Commonwealth to prove that such account is untrue. If he give an unreasonable account of it, then it devolves on the prisoner to sustain such account by other...