Harris v. Commonwealth

• Decision Date: 22 April 1946
• Parties: HARRIS. v. COMMONWEALTH.
• Court: Virginia Supreme Court

37 S.E.2d 868

185 Va. 26

HARRIS.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

April 22, 1946.

Error to Hustings Court of City of Richmond; Willis C. Pulliam, Judge.

Russell C. Harris was convicted of breaking and entering a gasoline service stationand stealing therefrom money and other property and he brings error.

Judgment affirmed.

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

W. A. Hall, Jr., of Richmond, for plaintiff in error.

Abram P. Staples, Atty. Gen., and V. P. Randolph, Jr., Asst. Atty. Gen., for Commonwealth.

SPRATLEY, Justice.

Russell C. Harris was indicted for breaking into and entering, on February 16, 1945, the gasoline service station of H. T. Cox in the city of Richmond, and stealing therefrom United States currency in the amount of $15.04 and "one glass bank and 65 gasoline coupons, " the money and property of H. T. Cox. No specific value was placed upon the last-named property. Upon his trial, a jury being waived, he was found guilty by the trial court and his punishment fixed at five years in the State penitentiary.

This is a companion case to that of Miller v. Commonwealth, 37 S.E.2d 864, wherein Miller was found guilty by a jury and his punishment fixed at four years in the penitentiary, in which an opinion has been handed down this day.

The petition for a writ of error in this case does not comply with Rule XIV of this court. It contains neither a clear statement of the facts nor a precise assignment of the errors relied on. The facts are referred to in what are termed four propositions, discussions of law and facts, evidently intended as four assignments of error. This practice does not comply with our rules, and should not be followed.

The evidence is certified in narrative form. It may be briefly summarized and stated as follows:

About 2 o'clock in the morning of Saturday, February 17, 1945, two Richmond city police officers, S. E. Fortune and A. L. Tatum, were cruising in a police car on Bainbridge street near Carter Jones Park in South Richmond, when they saw two men come out of Toler street. The police officers rode on and around, but kept a watch on the men. The men disappeared; but shortly thereafter they were observed walking under a street light. The officers turned the lights off the police car and drove up to them before they were noticed. They then recognized the two men as Russell C. Harris and Wilson V. Miller. They talked to them before they got out of the car, and the two men said that they had been over in Carter Jones Park shooting crap. Fortune noticed that the front pockets of the men were full of something. He put his hands on their pants, and discovered it was money. When asked where they got the money, they both said they had won it in a crap game in the above-named park.

The police officers took the men to the police station, and told them that they would be held for a few minutes until it could be ascertained whether any place on the beat of the officers had been broken into. When the men got in the car, a screw driver was observed in the pocket of Harris. Sergeant Hall, at the police station, ordered the men to be held at the station, while he started checking the beat of the officers at one end and the officers checked at the other end. About fifteen or twenty miputes after leaving Miller and Harris at the station, the officers received a call from Sergeant Hall telling them to meet him at Cox's service station, as that station had been broken into, and to bring the screw driver found on Harris. The officers went to the station, carrying the screw driver with them, and found that it fitted the marks on the service station door. They got Mr. and Mrs. Cox to come to the station and tell them what was missing. They were given a list of gasoline ration coupons, about $200 in money and a little Standard Oil Company bank. They went back to the station and questioned Miller and Harris. Sixty-five gasoline coupons were found stuck in a sock inside a shoe of Harris and $15.04 in his pockets, when he was stripped and searched. One of these coupons bore a license number which Fortune happened to know belonged to C. R. Lawson, the officer having seen it often. This license number was 5116, thesame as the address of Lawson, 5116 Devonshire Road. Another of these coupons, number 5116, was taken off of Miller, together with other coupons bearing different license numbers.

Lawson was called on the telephone, and when asked if he bought any gasoline at Cox's service station, replied that he had used two A-14 gasoline coupons, with license number 5116 on them, in that station that night just before dark. He stated that he usually purchased his gasoline on Saturday morning; but on Friday afternoon he noticed a gasoline truck at Cox's station; that he went home, ate his supper, and told his wife he had better get his gas that evening. He also said that the station of Cox was "the only place that he had cashed any gasoline coupons along about that time." Among the coupons found on Miller were some bearing the license number 25048, belonging to P. H. Gabriel, who said he had cashed coupons bearing that number with Cox on the evening of February 16, 1945.

Miller and Harris were asked to take the officers to the place where they had been shooting crap. They were taken separately. Harris was taken first to Carter Jones Park. From there he took Officer Fortune to an alley between Twenty-sixth and Twenty-seventh streets, and told Fortune that was the place where the crap game took place. Fortune said that the spot Harris showed him was under a street light and up against a garage where it was impossible for any one to shoot crap, because the ground was covered there with grass three or four inches high, there was a crack under the garage door about three inches high, and the dice would have rolled under the door.

Officer Tatum corroborated Fortune in respect to the alley as the location of the crap game pointed out by Harris.

Sergeants Inman and Hall, of the police force, also testified that Harris told them he had won the gasoline coupons in a crap game in Carter Jones Park.

Russell C. Harris testified that he was twenty-two years of age, and lived in South Richmond; that he had been dis charged from the United States Navy after two years and seven months service with a bad conduct discharge; that his discharge was not "dishonorable"; and that he expected to be recalled to the Navy because the charge against him related only to drawing mess rations, which charge he could satisfactorily explain when he was able to obtain a certain witness. He undertook to explain the possession of the loose change and the gasoline ration coupons as follows:

He said he left a pool room about 9 o'clock Friday night and attended a moving picture show until shortly before midnight; that he then returned to the pool room and later went to a place called Wallace's Grill; and that he there heard that a crap game was going on at Carter Jones Park. Upon arriving at the park, he saw a crap game was going on at the baseball backstop. He then went to a spring with two boys who had been watching the game at I the backstop; that he left the spring with the two boys and went to the alley between Twenty-sixth and Twenty-seventh streets, and started a game with the two boys; and that after "breaking" these boys, he went to the backstop and got in that crap game and there won the gasoline coupons. He told the officers that he was on his way home, about half a block away, and Miller was accompanying him to borrow an overcoat. He said he and Miller got the coupons from a man who ran a gasoline station in the west end of Richmond, and that the man, whose name he did not know, told him that he would meet them at Seventh and Broad streets, Richmond, the next day at 12:30 o'clock p.m., and redeem the coupons; and that if the man failed to show up, he knew where he could sell them. He admitted he told the police that he had been in crap game at Carter Jones Park, and there had won some money; and that he had put the coupons in his sock while talking to the three policemen in the station house, because he knew he didn't "have any business with them, " and if they found them on him "there would be trouble." He said that he and Miller were continuously questioned by the police officers and theyrepeatedly denied that they had anything to do with breaking into Cox's service station or taking anything therefrom. He also said that when the officers took him to the Carter Jones Park and asked him where the crap game took place, they did not ask him about the gasoline coupons, and he took them to the alley between Twenty-sixth and Twenty-seventh streets, and told them a crap game took place there. He explained that the screw driver found in his pocket had been used by him earlier in the...