Dunlavey v. Commonwealth

• Decision Date: 19 November 1945
• Citation: 184 Va. 521,35 S.E.2d 763
• Parties: DUNLAVEY. v. COMMONWEALTH.
• Court: Virginia Supreme Court

35 S.E.2d 763

184 Va. 521

DUNLAVEY.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Nov. 19, 1945.

Error to Hustings Court of City of Richmond; John L. Ingram, Judge.

Thomas Orval Dunlavey was convicted of larceny of an automobile, and he brings error.

Affirmed.

Before CAMPBELL, C. J, and HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, J J.

A. Clair Sager, of Richmond, for plaintiff in error.

Abram P. Staples, Atty. Gen., and M. Ray Doubles, Asst. Atty. Gen., for the Commonwealth.

GREGORY, Justice.

The accused, Thomas Orval Dunlavey, was indicted for the larceny of an automobile. He was tried by the court without the intervention of a jury, a jury having been waived. He was found guilty and sentenced to the penitentiary for three years.

The indictment charged that the accused, on the 22nd day of November, 1944, in the city of Richmond, did unlawfully and feloniously take, steal and carry away, one Ford automobile, of the value of $474, which was the property of one J. T. Martin. The evidence was agreed upon in accordance with section 6342 of the Code (Michie, 1942). It is as follows:

"On Wednesday, November 22, 1944, the automobile designated and described in the indictment against the defendant was stolen by one Louis Hall, aided and abetted by one, Raymond White. Dunlavey, the de-fendant, had no connection whatsoever with the said larceny of said automobile on said date of November 22, 1944. Later, on Saturday, November 25, 1944, while said automobile was still in the custody of and under the control of the said Louis Hall, the defendant Dunlavey, pushed the stolen automobile with his, Dunlavey's automobile, in order to start the motor of the stolen automobile. This was done pursuant to a previous agreement between the defendant, Dunlavey, and Louis Hall made this date, three days subsequent to the larceny of the said automobile by Hall and White, that he, Dunlavey, would buy certain parts from said stolen automobile. Louis Hall testified that the defendant, Dunlavey, knew at the time he agreed to purchase the said parts that said automobile had been stolen by Hall and White. Dunlavey denied this statement by Hall. The evidence further showed that the stolen automobile was parked on Linden street, Richmond, Virginia, when Dunlavey pushed it with his automobile to get it started and that Hall, White and a fourth unidentified person drove the stolen automobile to a secluded section of Bryan Park, a distance of approximately three miles from Linden street, but still within the corporate limits of the city of Richmond; and that the defendant, Dunlavey, followed them in his own automobile to Bryan Park where the said four persons and two automobiles were later discovered by Poindexter, a park policeman. When thus apprehended, Hall, White and the unidentified person ran, but Dunlavey, the defendant, remained on the scene and was taken into custody by the park policeman. Later, when questioned, Dunlavey identified Louis Hall and Raymond White. When the defendant, Dunlavey, was apprehended, certain parts, which had been removed from the stolen automobile, were found in Dunlavey's automobile. Dunlavey testified that he had purchased said parts from Hall for the sum of $15.00. There was no evidence introduced at the trial as to the value of said parts. The owner of the stolen automobile did not testify at the trial, but it was stipulated by counsel for the defendant and the Commonwealth's attorney that the said automobile had been stolen in the city of Richmond, Virginia, and that the value of said stolen automobile was in excess of $50.00."

There is only one assignment of error. Its basis is the refusal of the court to set aside its judgment of conviction upon the ground that it is contrary to the law and the evidence. The accused contends that under the evidence he could not be convicted of grand larceny but that he could be convicted only of receiving stolen goods of the value of $15, knowing them to have been stolen—a misdemeanor. Therefore, we must determine whether the crime was grand larceny—a felony—or receiving stolen goods of less value than $50—a misdemeanor. The indictment does not charge the accused with receiving stolen goods or with being an accessory. It charges him with the principal offense, grand larceny.

Larceny as defined by our court in Vaughan v. Lytton, 126 Va. 671, 101 S.E. 865, is the wrongful or fraudulent taking of personal goods of some intrinsic value, belonging to another, without his assent, and with the intention to deprive the owner thereof permanently. The animus furandi must accompany the taking, but the wrongful taking of property in itself imports the animus furandi.

The position of the accused is that the automobile had been stolen and carried away from the possession of the rightful owner by others (Hall and White), three days before he knew anything about it. Thus he claims to have come into the picture three days after the larceny when he agreed to assist in moving the automobile and to purchase the parts to be taken from it. He therefore contends that his offense is that of receiving stolen goods of less value than $50.

The position of the Commonwealth is that aside and apart from the subsequent purchase and receipt of...