Hummel v. Com., 751451

• Decision Date: 14 January 1977
• Docket Number: No. 751451,751451
• Citation: 217 Va. 548,231 S.E.2d 216
• Parties: Lindberg HUMMEL v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 216

231 S.E.2d 216

217 Va. 548

Lindberg HUMMEL v. COMMONWEALTH of Virginia.

Record No. 751451.

Supreme Court of Virginia.

Jan. 14, 1977.

Holmes C. Harrison, Harrisonburg (Clark, Bradshaw, Jolly & Smith, Harrisonburg, on briefs), for plaintiff in error.

Jerry P. Slonaker, 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.

PER CURIAM.

Defendant was indicted as an accessory before the fact of breaking and entering with the intent to commit larceny, and with feloniously receiving stolen property exceeding $100 in value, knowing it had been stolen. The jury found the defendant not guilty as an accessory before the fact, but guilty of receiving stolen property. His punishment was fixed at 10 years confinement in the State penitentiary, and judgment was entered on the jury's verdict.

The defendant contends that the trial court erred in unduly limiting him in his cross-examination of the Commonwealth's principal witness.

On June 22, 1974, Ray Wolfe, owner of a cabin in Augusta County, found that his cabin had been broken into. A number of articles valued at more than $100 had been taken from the premises.

Carl Stroop, Mark Brannon, Walden Harmon, and Anthony Terry were charged with breaking and entering the Wolfe cabin and stealing certain articles. They were all convicted felons and each testified for the Commonwealth in the present case. Their testimony was sharply conflicting. However, each one admitted his participation in the breaking and entering and theft of the articles. Stroop and Brannon testified that the stolen articles were placed in a back room of a pool parlor operated by the defendant in Harrisonburg and that the defendant was in another part of the building when the articles were brought on the premises. Harmon testified that the defendant refused to purchase the articles from Terry and ordered their removal from his premises, which was done.

Terry testified that the defendant loaned him a pickup truck to transport the stolen articles, and that the defendant paid him $70 for the articles. Terry admitted he made pre-trial statements which were inconsistent with his testimony. He also said that he had been promised immunity from prosecution for his participation in this offense and four other unrelated offenses.

During cross-examination of Terry, defendant elicited an admission from the witness that he had previously been convicted of two unrelated felonies. The defendant then attempted to show that Terry had been convicted of a third felony; whereupon, the trial judge sustained the Commonwealth's objection and ruled that the defendant could only show that the witness had been convicted of A felony and not the nature and details of the conviction. Relying on Harmon v. Commonwealth, 212 Va. 442, 185 S.E.2d 48 (1971), the trial judge instructed the jury that the only appropriate question to the witness was: 'Have you been previously convicted of a felony?' Defendant then proffered evidence that the witness had been convicted of three additional felonies, namely: breaking and entering, forgery, and uttering a forged instrument.

Defendant argues that because Terry was the prosecution's principal witness, it was vital to his defense that he be allowed to attack Terry's credibility by showing that he had been convicted of a total of five felonies.

The Commonwealth argues that the trial court properly relied on Harmon in ruling that the defendant could only show that the witness Terry had been convicted of A felony without...