Comer v. Com.

• Decision Date: 04 September 1970
• Citation: 211 Va. 246,176 S.E.2d 432
• Parties: Thomas James COMER v. COMMONWEALTH of Virginia, (2 cases).
• Court: Virginia Supreme Court

Page 432

176 S.E.2d 432

211 Va. 246

Thomas James COMER v. COMMONWEALTH of Virginia, (2 cases).

Supreme Court of Appeals of Virginia.

Sept. 4, 1970.

H. R. Pollard, IV, Richmond, for plaintiff in error.

William M. Phillips, Asst. Atty. Gen. (Robert Y. Button, Atty. Gen., on the brief), for defendant in error.

Before I'ANSON, CARRICO, GORDON, HARRISON, COCHRAN and HARMAN, JJ.

HARMAN, Justice.

This is an appeal from a judgment of the trial court, after a waiver of trial by jury, finding the defendant, Thomas James Comer, guilty of robbery under Code § 18.1--91 and of 'unauthorized use' of an automobile under Code § 18.1--164. He was sentenced to ten years in the state penitentiary on the robbery conviction with two years of this sentence suspended. Imposition of sentence was suspended under Code § 53--272 on the 'unauthorized use' conviction upon condition that the defendant be of good behavior for a period of ten years.

The questions before us are whether the evidence was sufficient to sustain these convictions and whether defendant can be indicted and convicted of both robbery and unauthorized use.

On January 19, 1968, at approximately 7:00 p.m., James F. Talbot, Sr., a driver for Veterans Cab Association, picked up two male passengers on the corner of 25th and Marshall Streets in the City of Richmond. Upon arriving at their destination, which was in the 300 block of St. John Street, an object which Talbot thought was a pistol was placed at the back of his head and he was informed that 'it was a stickup.' Talbot handed the passengers his wallet and $12.00 which he was holding in his hand. The total sum taken was approximately $80.00.

Talbot was then ordered to 'get out of the cab, walk down to the corner, which was about a third of the block away, turn the corner and not look back * * *' After Talbot turned the corner the sub was driven off.

Talbot's testimony was that he never saw the faces of the two men who robbed him well enough to identify them but that he noticed that one of them wore a brown suede jacket. Prior to seeing the money which was seized at the time defendant was arrested, Talbot had informed the police that one of the one dollar bills which had been taken from him had a hole through Washington's face.

At approximately 7:25 p.m., and before a report was made of the robbery of Talbot, Detectives Coleman and Stokes of the Richmond Police were on patrol in their car traveling west on Hospital Street. They observed two men running 'fast' in an easterly direction along Hospital Street. Because of this unusual conduct, the detectives turned their vehicle and followed the two men in an attempt to stop and question them. The men eluded them by running into a wooded area in the vicinity of 17th Street. Other officers were called and a search was made of the wooded area. The suspects were not located and most of the officers returned to their normal activities.

At approximately 8:00 p.m. Officer Jenkins of the Richmond Police, who had been called in to aid in the search, observed the defendant emerge from the wooded area and proceed along 17th Street. Officer Jenkins pulled up behind the defendant in his police vehicle and asked him to get in. The officer testified that as the defendant climbed into the vehicle, he saw him drop something on the sidewalk.

Detective Coleman, summoned to the scene, positively identified the defendant as one of the men whom he had seen on Hospital Street and had chased into the wooded area. Detective Coleman testified that he had looked directly at the defendant's face when he first observed the two men and was able to positively identify the defendant. The description of the clothing worn by one of the men, which Detective Coleman had earlier given to the other officers, was identical to the clothing worn by the defendant at the time he was arrested. One of the items of clothing worn by the defendant was a brown suede jacket.

Before moving the police vehicle, Officer Jenkins made an inspection of the sidewalk where he had observed the defendant drop something. Approximately $35.00 in currency was found on the sidewalk and in the adjacent gutter. This currency included a one dollar bill with a hole through Washington's face. A search of defendant's person revealed an additional $31.00 in his pocket.

Detective Coleman testified that when he first observed the defendant, only minutes after he was picked up by Officer Jenkins, he noticed that the defendant was breathing hard and was perspiring, although it was a cold night. Mud on defendant's shoes was similar to mud in the wooded area where Coleman had last seen the suspects.

Talbot's cab was recovered at the corner of 5th and Hospital Streets, approximately 30 feet west from the point where Coleman and Stokes first observed the two men.

While the defendant denied committing the crime, and offered an alibi, he produced no evidence to corroborate this alibi.

It is well settled in Virginia that 'When the sufficiency of the evidence is challenged after conviction it is our duty to view it in the light most favorable to the Commonwealth, granting all reasonable inferences fairly deducible therefrom. The judgment should be affirmed unless 'it appears from the evidence that such judgment is plainly wrong or without evidence to support it'.' Crisman v. Commonwealth, 197 Va. 17, 18, 87 S.E.2d 796, 797 (1955); Jones and Hall v. Commonwealth, 210 Va. 299, 302, 170 S.E.2d 779, 782 (1969); Corbett v. Commonwealth, 210 Va. 304, 306, 171 S.E.2d 251, 252 (1969); Cameron v. Commonwealth, 211 Va. 108, 110, 175 S.E.2d 275, 276 (1970).

Where the Commonwealth relies upon circumstantial evidence to establish guilt, the chain of circumstances must be unbroken and the evidence, as a whole, must be sufficient to satisfy the guarded judgment that both the Corpus delicti and the criminal agency of the accused have...