Hall v. Com., 821941

• Decision Date: 17 June 1983
• Docket Number: No. 821941,821941
• Citation: 303 S.E.2d 903,225 Va. 533
• Parties: David Guy HALL v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 903

303 S.E.2d 903

225 Va. 533

David Guy HALL v. COMMONWEALTH of Virginia.

Record No. 821941.

Supreme Court of Virginia.

June 17, 1983.

James A. Eichner, Richmond (Beale, Eichner, Wright, Denton & Shields, Richmond, on brief), for appellant.

Linwood T. Wells, Jr., Asst. Atty. Gen. (Gerald L. Baliles, Atty. Gen., on brief), for appellee.

Before CARRICO, C.J., and COCHRAN, POFF, COMPTON, STEPHENSON, RUSSELL and THOMAS, JJ.

COMPTON, Justice.

Indicted for statutory burglary under Code § 18.2-91, David Guy Hall was found guilty in a bench trial and sentenced to imprisonment for five years. The sole issue on appeal is whether the evidence is sufficient to support the conviction.

The theory of the Commonwealth is that the defendant was a lookout, aiding and abetting a burglar who escaped from the premises in question. The defendant, who did not testify at trial, contends the proof shows mere presence at the scene of the crime. We agree with the defendant.

According to settled principles of appellate review, we will examine the evidence in the light most favorable to the Commonwealth. About 2:00 a.m. on September 11, 1981, police responded to an alarm at King's Department Store in the City of Richmond. Upon arrival, Officer Wyatt observed the defendant at the rear of the shopping-center building combing his hair. The defendant was positioned about 300 feet from the north end of the long building, which lies in a north-south direction parallel to Jefferson Davis Highway. The rear of the building was "a block or a block and a half" from the highway.

Defendant was standing approximately 20 feet from a rear exit fire door and just below a point on the roof subsequently determined to be the burglar's place of entry to the one-story building. Wyatt testified that from such point on the roof a person would have a clear view of vehicles approaching the building from any direction.

Defendant told Wyatt that he came to the location "to go to the bathroom." He said he sought a secluded place because he had been drinking and did not want to be arrested for being drunk in public.

Wyatt found a pair of rawhide gloves and a large flashlight 20 feet from where defendant was standing. At the trial, the accused tried on the gloves and the court observed that they "fit the defendant." The officer testified that the gloves were dry when found, although the surrounding ground was wet due to rain earlier in the day.

Officer Cook arrived on the scene after Wyatt had taken defendant into custody. Defendant told Cook he had been at a nearby night club, approximately "a quarter of a mile" away; after leaving he felt ill and went behind the department store to vomit. Cook examined the immediate area and found no evidence that defendant had been ill. Cook testified that in his opinion defendant "had been drinking" but not to such excess that he would have been placed under arrest for being intoxicated in public.

After interviewing defendant, Cook entered the building. Believing he heard a noise in the overhead, Cook climbed into the "false" ceiling and walked through the air duct system. Guided by a set of fresh footprints, Cook followed the noise along the ceiling but was unable to apprehend the burglar, who escaped apparently by dropping through the ceiling into the premises of a grocery store housed in the same building.

Witnesses called by the defendant testified that he had been at the night club alone drinking beer during the evening in question. According to the evidence, defendant left alone about 1:00 a.m. At that time, he was "feeling no pain," although he spoke coherently and walked without apparent difficulty. No gloves or flashlight were observed on his person.

Testimony further indicated that defendant, age 21 and employed by a construction company, lived about three miles from the scene of the crime. He owned no motor vehicle and customarily walked home late at night along the highway on the side where the department store was located.

The law is settled that mere presence is not sufficient to establish that one is a principal in the second degree, an aider and abettor to the commission of a crime. The prosecution must prove that the accused did or said something showing his consent to the felonious purpose and his contribution to its execution. Jones v. Commonwealth, 208 Va. 370, 373, 157 S.E.2d 907, 909 (1967). Moreover, to establish the defendant as an aider and abettor, he must be present and shown to have procured, encouraged, countenanced or approved commission of the crime; he must share the criminal intent of the actual perpetrator or be guilty of some overt act. Id.

Endorsing the trial judge's conclusions of fact, the...