Drinkard v. Commonwealth
| Decision Date | 17 January 1935 |
| Citation | 178 S.E. 25 |
| Parties | DRINKARD. v. COMMONWEALTH. HICKS. v. SAME. |
| Court | Virginia Supreme Court |
Error to Corporation Court of City of Lynchburg.
Harry L Drinkard and W. E. Hicks were convicted of housebreaking with intent to commit larceny, and they bring error.
Judgment against Hicks affirmed; judgment against Drinkard reversed and cause remanded.
Argued before CAMPBELL, C. J., and HOLT, EPES, HUDGINS, GREGORY, and BROWNING, JJ.
A. S. Hester and M. H. Hester, both of Lynchburg, for plaintiffs in error.
The Attorney General, for the Commonwealth.
Harry L. Drinkard and W. E. Hicks were jointly indicted for breaking and entering "onthe---- day of December, " 1933, the storehouse and garage of Willie Cooper, In the city of Lynchburg, with the intent to commit larceny therein, and stealing therefrom a crocheted bedspread of the value of $50, and certain other household articles.
Upon their trial the jury returned separate verdicts as to each of the accused, both of which read: "We the jury find the defendant guilty as charged in the indictment and fix his punishment at two years in the penitentiary."
The indictment contains only one count, and the verdicts, being general verdicts, find the accused guilty of the major offense charged in the indictment, i. e., housebreaking with intent to commit larceny. Speers v. Commonwealth, 17 Grat. (58 Va.) 570, 574; Butler v. Commonwealth, 81 Va. 159, 162; Myers v. Commonwealth, 132 Va. 746, 762, 111 S. E. 463.
Each of the defendants moved the court to set aside the verdict against him because the evidence was insufficient to sustain a verdict finding him guilty of housebreaking. The court overruled their motions, and sentenced each of them in accordance with the verdict against him.
The single assignment of error made by each of them is that the court erred in refusing to set aside the verdict against him on that ground.
The evidence is certified in narrative form. So far as it is material, the evidence introduced by the commonwealth (given where it is placed in quotations in the language of the certificate of the evidence) is as follows:
Mrs. Willie Cooper testified "that on Wednesday, she believes the 20th of December, 1933, between * * * 10:30 in the morning and 8 o'clock in the evening, the lock on her garage was broken, the garage entered and the lid of two trunks pried open, from which were stolen the particular hand knitted bedspread in evidence and various other articles of wearing apparel and personal effects."
J. A. Pickett testified "that he runs a bootlegging establishment; * * * that he has known Drinkard and Hicks slightly for some time; that several days before Christmas [1933] Hicks and Drinkard came together into his place; that one of them (he didn't say which) asked him if he wanted to buy a bedspread; that about thirty minutes later they both came back together and Hicks had the bedspread under his arm; that he swapped them a five gallon can of liquor for the bedspread and another small article;1 that they left together with the can of liquor; * * * that the trade was made in the afternoon; that he gave the bedspread to his wife for a Christmas present * * *; that prior to the date he purchased the bedspread Officer Harvey had informed him of several thefts, and asked him to keep a lookout for bedspread and other articles; that after purchase was made witness's employee, Tuck, told witness that he [Tuck] had told Officer Harvey that he [Pickett] had a bedspread; that Harvey called him on the 'phone and asked him if he had such a spread and if he could see it; and [that] then witness delivered spread to police and informed them how it had been acquired."
Jackie Rogers (a woman) testified "that she did not live with Pickett, but that she visited Mrs. Warren at the establishment [Pickett's] and that she had been visiting there the greater part of the past several years; * * * that she had seen Drinkard and Hicks there frequently; that some time before Christmas [1933], she doesn't know the day, she saw Drinkard and Hicks there together; * * * that Hicks had a box under his arm; * * * that after seeing the box under Hicks' arm she looked in the box in a back room and saw the bedspread in it; that there were others at the house when Drinkard and Hicks were there; that they traded the bedspread to Pickett for a can of whiskey but [she] couldn't say that she was in the room when the trade was made and recalled no details of the conversation in regard to the trade."
The only other witness for the commonwealth was Officer Harvey, who testified as to the circumstances under which Pickett delivered the bedspread to the police and told where and how he had gotten it from Drinkard and Hicks. His testimony agrees with that of Pickett on these points.
Hicks and Drinkard each testified that he had never been on Mrs. Cooper's premises, and had never seen the bedspread introduced in evidence until it was exhibited at his examination on this charge in the police court; and that though he knew Pickett well and had been to his bootlegging establishment many times, he was not at his place on December 20, 1933, or at any time between that time and Christmas. Both testified that they left Lynchburg together about 2 a. m. on De-cember 20, went to Franklin county, and from there to Pittsylvania county, where they were arrested about noon on December 20 and
Hicks was put in jail in Chatham.
Drinkard does not account for his whereabouts from the time he was arrested until after Christmas, other than by his categorical statement that he was not in Lynchburg from
2 a. m. on December 20 until after Christmas. Hicks testified that he remained in jail in Chatham from about noon on December 20 until Christmas Eve, when his attorney, Mr. Anderson, a Lynchburg attorney who represented Hicks and Drinkard at this trial, came to Chatham with a bondsman and bailed him out.
Mr. Anderson took the witness stand and corroborated Hicks' statement that on Christmas Eve he went to Chatham and procured Hicks' release on bail, and said "that he thought Hicks had been in jail for three or four days for his friends had been trying to get him to go to Chatham to get him out for that long." He further said that the reason the jailer in Chatham had not been summoned to prove when Hicks was put in jail was that he (Anderson) had been and was still sick, and had not attended to having him summoned.
In support of his position that the court erred in refusing to set aside the verdict as to him, each of the accused makes two contentions.
(1) They contend that the testimony of Hicks and Drinkard, if believed, proves that they were not in Lynchburg at the time M/s. Cooper testified her garage was broken open, and could not have been guilty of breaking and entering it; and that the jury was not warranted in disbelieving or disregarding their testimony on this point
This contention is not well made. The testimony of Hicks and Drinkard that they were not in Lynchburg from 2 a. m. on December 20 until Christmas Eve (or in the case of Drinkard until after Christmas) was contradicted by the testimony of the witnesses for the commonwealth. If Mrs. Cooper's and Pickett's testimony is to be believed, neither Hicks nor Drinkard could have told the truth as to his whereabouts during this period. It is evident that the jury found that the commonwealth's witnesses were, and Hicks and Drinkard were not telling the truth; and for the purposes of this review we must accept this as being a fact established.
In Spratley v. Commonwealth, 154 Va. 854, 152 S. E. 362, and Messer v. Commonwealth 145 Va. 83S, 133 S. E. 761 (), the testimony of the accused, which was disregarded by the jury, was uncontradicted and not inconsistent with any other evidence in the case. What was said in those cases with reference to the disregard by the jury of the testimony of an accused, or of a witness for the accused, is not applicable to a case such as this.
(2) They contend that, even if it be accepted as established that Pickett's testimony is true and that they have testified falsely in an effort to rebut it, yet the evidence is not sufficient to sustain a verdict finding them, or either of them,...
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