Harris v. Com.

• Decision Date: 07 March 1966
• Citation: 147 S.E.2d 88,206 Va. 882
• Parties: Paul Roderick HARRIS v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

Page 88

147 S.E.2d 88

206 Va. 882

Paul Roderick HARRIS v. COMMONWEALTH of Virginia.

Supreme Court of Appeals of Virginia.

March 7, 1966.

W. Bascom Jordan, Danville, for plaintiff in error.

W. P. Bagwell, Jr., Asst. Atty. Gen. (Robert Y. Button, Atty. Gen., on brief), for defendant in error.

Before EGGLESTON, C.J., and SPRATLEY, BUCHANAN, SNEAD, I'ANSON, CARRICO, and GORDON, JJ.

SNEAD, Justice.

The sole question presented in this appeal is whether the evidence was sufficient to sustain the conviction of Paul Roderick Harris, defendant, of statutory burglary.

Harris moved the court to strike the Commonwealth's evidence at the conclusion thereof on the ground that it was insufficient to support a finding of guilty, but the motion was overruled. Harris then rested his case without presenting evidence in his own behalf and renewed his motion to strike. The court again overruled the motion and submitted the case to the jury. A verdict was returned finding defendant guilty of statutory burglary as charged in the indictment and fixing his punishment at two years in the penitentiary. Defendant's motion to set aside the verdict as being contrary to the law and the evidence was overruled and judgment was entered upon the verdict. We granted defendant a writ of error.

The record discloses that on Saturday, May 16, 1964, at about 3 p.m., defendant Harris, Robert Hyman, and Edith Mitchell (also known as Edith Price) approached Benjamin Parker, the operator of a gasoline station in the city of Norfolk, and asked if they could borrow his truck. Parker was acquainted with Edith Mitchell, but he did not know either Hyman or Harris by name. Parker informed them that he had sold his truck but that they could rent a vehicle at the Noble Leasing and Rental Service across the street. Edith Mitchell said that Hyman wanted to move his wife 'about two hundred miles away' and requested Parker to ascertain from Noble what it could cost to rent a truck for that purpose. Parker contacted an employee of Noble and reported to the three interested persons that the rental fee would be $75. The threesome 'talked among themselves' and told Parker that they would come back.

About 4 p.m. Hyman returned with the money and Parker rented a truck from Noble in his own name. It was an International 'walk-in' type vehicle and was light green in color. Hyman departed and returned with defendant at approximately 5 p.m. to pick up the vehicle at Parker's station. After Parker had secured Hyman's 'license number', as requested by Noble, Hyman and defendant drove off in the truck together. Parker did not observe who was driving it.

Aubrey Toone testified that on Sunday night, May 17, he was helping at a body shop in South Hill. At approximately 11 p.m. a green, 'walk-in truck' stopped at the establishment. There were three men in the vehicle. Toone said, 'When they come up on the driveway, Hyman was driving and one of them was laying down and had a red blanket over him, laying on a jacket, and the other one was standing up.'

Toone positively identified Hyman as the driver of the truck and described the clothes that he was wearing. He was not able to identify the man standing up in the truck at the door, but he pointed out defendant in the courtroom as being out of the three occupants of the vehicle. Before the trial he was shown photographs of Hyman and defendant which apparently aided him in making an identification of the two men. He testified:

'Q. Which one was the picture of the one lying down?

'A. Harris.

'Q. And which one was the picture of the man standing up?

'A. I didn't see that one. I just saw Hyman and Harris.'

At one point in his testimony he stated that he did not know who was lying down, but at another point he said:

'A. I'd say that Harris was laying down, I mean I'm not real sure about it.

'Q. You're not real sure about it?

'A. No, I just took a glimpse of him.'

Toone further testified that the truck remained at the station for about 15 minutes; that he pumped 10 gallons of gasoline into its tank; that he wrote out a cash ticket for the purchase in the amount of $3.90, and that he erroneously dated the receipt May 16 instead of May 17.

On Monday morning, May 18, between 4 and 5 o'clock, Officer H. R. Chaney was patroling Riverside Drive in Danville. He stopped his automobile on a used car lot, got out of the vehicle and stretched his legs. At that time of morning there was no traffic and 'everything was perfectly quiet.' Chaney heard a noise, looked across the highway, and observed a truck backed up to the loading door at the end of a building occupied by J. W. Wyatt and Company, a wholesale food distributor. Chaney became suspicious because he had 'never seen a truck like that there before, and nobody at the building at that time.' He drove across the highway with his lights off, 'cut the motor off', and 'heard a noise that sounded like somebody dropped something or somebody running, back toward the inside the building.'

Chaney approached the truck, which was later positively identified as the one rented from Noble in Norfolk on the previous Saturday in the name of Parker at the instance of Hyman, Edith Mitchell and defendant, and noticed that the rear doors and a sliding door on the driver's side were open. He observed a large quantity of 'cigarettes in half cartons' which appeared 'to be just thrown into the truck'. Upon further inspection of the premises he also observed that the large overhanging 'roll-up type door' to the building was open; that Wyatt's truck was backed up to the loading platform, and that the entrance door to the building was open.

Chaney radioed the Danville police head-quarters for assistance and three officers responded. They made a detailed check of the premises and of the two trucks. A hole about 3 feet in diameter had been knocked through the cinder block wall at the west corner of the building which gave access to the inside of the building. Another hole was found at the east end of the building, but it came to a dead end. The Wyatt company truck contained assorted merchandise. About one-half of the merchandise had been removed from the truck and placed onto the loading platform.

The rented Noble truck found just outside of the building contained, among other things, 26 half-cases of cigarettes, a blanket, a pillow, some scattered nabs, a pistol, a cash sales ticket for gasoline in the amount of $3.90 issued by the South Hill Body Shop dated May 16, and a size 7 gray hat with the initials 'P H' stamped in gold on the sweatband. Both the inner lining and the band were labelled 'Diamond Hatters, Norfolk, Va'. According to Detective Boone 'it appeared that someone had been sleeping and eating in the truck.'

On Monday afternoon, May 18, (the day of the burglary) at approximately 3 o'clock, Hyman telephoned Benjamin Parker in Norfolk, informed him that the truck had been stolen, and told him to report the theft to the rental company. Parker promptly made the report to an employee of the company, and about 25 minutes later Hyman and Harris, the defendant, appeared at Parker's station and asked him what the rental company had said about the truck being stolen. Parker replied that nothing had been said.

The next day, May 19, at about 12:20 p.m. Harris, Hyman, and Garland Turner were riding in a late model Cadillac automobile and were arrested by Sergeant Hurst near the home of Edith Mitchell, defendant's girl friend, in Norfolk. The Norfolk police had received certain information from the Danville authorities and were on the 'lookout for Harris'. After Harris was placed in Hurst's police car, he asked for his hat which he had left in the Cadillac. Hurst knew that the Danville police were looking for 'a particular hat with particular initials in it'. He went to the car, secured defendant's hat (brown in color), looked at it 'real quick', saw that it had the initials 'P H' stamped in it, and gave it to defendant.

Harris was then transferred to patrol wagon 39 and transported to police head-quarters. Upon arrival he was asked to place his hat upon a rack in the hall. While he was in one of the rooms of the Detective Bureau, Hurst and two Danville detectives examined the hat and found that 'the whole inside of the hat, the hatband and everything, had been torn out.' Harris was asked what had happened to the inside of his hat and he replied: 'I don't know what you're talking about.' He said that 'nothing had happened, that he hadn't done anything to it.'

Sergeant Hurst then went back to patrol wagon 39 and found 'the inside of a hat' stuffed beneath the seat in the place 'where they keep the stretcher.' The sweatband of the hat was stamped in gold with the initials 'P H'. The band and the inner lining each bore the name of 'Diamond Hatters, Norfolk, Va.' A tag showed that the hat was a size 7. Defendant had been transported alone in the patrol wagon, and no one else had been in the vehicle since his arrest. Sergeant Hurst showed the band and inner lining of the hat to defendant and told him that he had found them in the patrol wagon. Defendant said, 'So what, what does that prove?'

Defendant was also questioned about his use of the Noble truck, but he denied that he ever used the vehicle or that he knew anything about it. He stated that he had never been in the truck; that he had never been to Benjamin Parker's service station, and that he had never been in Danville.

Benjamin Parker testified that about a week after Hyman had reported that the truck had been stolen defendant came by the service station again. On this occasion Harris told Parker that he (Parker) 'wasn't coming to Court and testify against him'; that 'they was going to kill' him, and that he (Harris) 'wont no small time operator that he was a big time operator.'

Defendant contends, Inter alia, that the evidence against him was entirely circumstantial; that there was no evidence placing him at the scene of the crime; that...