Guss v. Com.
| Decision Date | 11 June 1976 |
| Docket Number | No. 751121,751121 |
| Citation | 225 S.E.2d 196,217 Va. 13 |
| Parties | Lloyd Alfred GUSS v. COMMONWEALTH of Virginia. Record |
| Court | Virginia Supreme Court |
Charles D. Barrell, Culpeper (Lea, Davies, Crigler & Barrell, Culpeper, on brief), for plaintiff in error.
Gilbert W. Haith, Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., on brief), for defendant in error.
Before I'ANSON, C.J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.
The defendant, Lloyd Alfred Guss, was convicted by a jury of robbery 1 and sentenced in accordance with the verdict to five years confinement in the State penitentiary.
Defendant's sole contention is that the trial court erred in refusing an instruction on the offense of assault and battery.
The uncontradicted evidence shows that on the afternoon of December 3, 1974, defendant and David W. Lang, Joseph Shiflett and his brother, Junior Shiflett, were riding around Culpeper County in a truck or van owned by defendant. After several stops to purchase whiskey and cigarettes, Lang asked Joseph Shiflett, who was driving, to stop the truck so he could relieve himself. After all the men got out, Lang and defendant walked to the front of the truck, where defendant struck Lang on the head with a wrench or some other blunt instrument. The Shifletts, who had by then resumed their seats in the truck, witnessed this blow and observed both Lang and defendant fall to the ground.
Lang testified that during the attack defendant 'knocked me down and then got my wallet.' Lang also stated that he had begun the afternoon with more than $200 in his wallet.
Both Shifletts testified that defendant forced them to drive off and abandon Lang, and that shortly thereafter they observed defendant toss an unidentified object out of the passenger side window of the truck. A police officer, acting on information from Joseph Shiflett, later discovered Lang's wallet beside the roadway.
The evidence reveals that Lang had sustained injuries to his head, and that defendant had approximately $57 in his possession when he was apprehended about seven hours later.
Defendant contends that since assault and battery is a lesser included offense of robbery, an instruction for that misdemeanor should have been given.
Defendant concedes that this court has not addressed the precise issue, but relies upon several Florida decisions, which involved the interpretation of a lesser included offense statute, to sustain his position. In Brown v. State, 206 So.2d 377 (Fla.1968), the court held that a lesser included offense instruction should be given if the subsidiary crime May be included in the offense charged, even though the trial judge might be satisfied from the evidence that the more serious offense was committed. State v. Wilson, 276 So.2d 45 (Fla.1973), while recognizing the same rule, nonetheless held that the failure to give such an instruction was harmless error because the undisputed facts clearly showed commission of the greater offense.
A great majority of the courts follow the rule that when the evidence in a prosecution for robbery warrants a conviction of the crime charged, and there is no independent evidence warranting a conviction for assault and battery, an instruction on the lesser included offense need not be given. Wallace v. State, 290 Ala....
To continue reading
Request your trial
-
Williams v. Commonwealth
...given.’ ” Vaughn, 263 Va. at 36, 557 S.E.2d at 222–23 (second alteration in original) (emphasis added) (quoting Guss v. Commonwealth, 217 Va. 13, 14, 225 S.E.2d 196, 197 (1976) ). The evidence must “provide the necessary quantum of independent evidence” to support an instruction on the less......
-
Woods v. Commonwealth
...offense should not be given." Commonwealth v. Leal, 265 Va. 142, 145–46, 574 S.E.2d 285, 287 (2003) (citing Guss v. Commonwealth, 217 Va. 13, 14, 225 S.E.2d 196, 197 (1976) ). In this case, appellant does not assign any error to the sufficiency of the evidence for second-degree murder, but ......
-
Martin v. Com.
...could be drawn from the evidence. Thus, no basis in the evidence supported the tendered instruction on assault. In Guss v. Commonwealth, 217 Va. 13, 225 S.E.2d 196 (1976), a case strongly analogous to the case at bar, the Supreme Court upheld the trial court's refusal, on a charge of robber......
-
Witherow v. Commonwealth
...the lesser-included offense must always be given." Vaughn, 263 Va. at 35, 557 S.E.2d at 222 (citing Guss v. Commonwealth, 217 Va. 13, 14, 225 S.E.2d 196, 197 (1976) ). Instead, the evidence must "provide the necessary quantum of independent evidence" to support an instruction on the lesser-......