James v. Com., 3862

• Decision Date: 05 September 1951
• Docket Number: No. 3862,3862
• Citation: 66 S.E.2d 513,192 Va. 713
• Parties: BERNARD JAMES v. COMMONWEALTH OF VIRGINIA. Record
• Court: Virginia Supreme Court

Page 513

66 S.E.2d 513

192 Va. 713

BERNARD JAMES v. COMMONWEALTH OF VIRGINIA.

Record No. 3862.

Supreme Court of Appeals of Virginia

September 5, 1951.

John B. Boatwright, for the plaintiff in error.

J. Lindsay Almond, Jr., Attorney General, and Frederick T. Gray, Assistant Attorney General, for the Commonwealth.

JUDGE: SPRATLEY

SPRATLEY, J., delivered the opinion of the court.

Bernard James, sometimes hereinafter referred to as the defendant, has been tried and convicted by a jury of receiving stolen property of a greater value than $50, knowing the same to have been stolen, and his punishment fixed at one year in the penitentiary. Code of Virginia, 1950, section 18-169. He asks us to set aside his conviction on the several grounds set out in his 'Notice of Appeal and Assignment of Error.' Rule of Court 5:1, section 4. His brief fails to contain the required statement of errors assigned, Rule of Court 5:12, section 1(b), but it is therein argued that the trial court erred in the admission of improper evidence, in refusing to grant certain instructions and in refusing to set aside the verdict of the jury for insufficiency of the evidence.

The material evidence of the Commonwealth was substantially as follows: The storehouse of Houston Cabell, near New Canton, in Buckingham county, Virginia, was broken into sometime between midnight of September 23, 1950, and three a.m. of the following morning. $240 in United States currency, contained in a cigar box, and a 38 calibre pistol were stolen therefrom. Cabell promptly reported the housebreaking and larceny to H. B. Adams, the sheriff of Buckingham county. On September 30, 1950, Sheriff Adams, without a warrant, arrested Perry Green, 18 years of age, and Bernard James, 20 years of age, near New Canton, on a passenger bus bound for Richmond, Virginia. Green, as he got off the bus, took a 'roll of money' out of his pocket and threw $74 in paper money on his seat in the bus. Asked why he threw the money away, he said, that it did not belong to him. Asked then about the robbery of Cabell's store, Green told the sheriff, in the presence of James, that prior to September 23rd, he and James had arranged to break into the store that night, but James did not show up so he broke into the store himself and robbed it; that sometime during the following Sunday morning, he went to the home of James and both of them went into the woods to divide the money; and that he gave James $60, which was less than half of the amount stolen.

The sheriff handcuffed James and Green together, and took them in his automobile to Cabell's store. There it was found that James had $43 or $44 in paper bills and silver on his person, and Green some silver coins.

Sheriff Adams testified that at the Cabell store he further questioned the handcuffed youths without advising them of their legal rights or warning them that their statements might be used against them. Present were two of his deputies, Winfrey Taylor and D. V. Coleman, and also Houston Cabell and Laura James, mother of the defendant. James then admitted to the sheriff that he and Green had planned to break into the store together; that he failed to meet Green at a certain oak tree as planned; and that he accepted $60 from Green on the following day, knowing the same to have been stolen from Cabell's store. He said that he did not notify Cabell that he had the stolen money because he was afraid the latter would shoot him.

There was no evidence of force, threats, intimidation, inducement, promise of reward, or hope thereof held out by the sheriff or his deputies in the examination of Green and James, or that the statements of the latter were other than purely voluntary.

Winfrey Taylor, one of the sheriff's deputies, testified that he was present at Cabell's store on September 30th, when Adams questioned Green and James. He said he heard most of what was said, and corroborated the testimony of Adams as to the admissions of Green and James.

After his arrest, Green took Adams into the woods near the former's home and there produced the cigar box which had contained the money stolen from Cabell's store. In corroboration, Louise Jones, mother of Green, said that on Sunday morning, September 30th, 'about half way between breakfast and dinner' James came to her house and he and Green went together into the woods in the direction where the sheriff found the empty cigar box.

Green, during his confinement in jail, made the statement that James had entered the store on the night of September 23rd with him. Upon his trial, he pleaded guilty to breaking into the store and stealing the money, and said that someone was with him at the time of the housebreaking.

James, in his defense, denied all connection with the crime, saying he knew nothing of its commission and received none of the stolen money. He admitted that the sheriff questioned him at length; but denied making any admission of his guilt. He explained that the money on his person when arrested consisted of $15, which his mother had given him and $30 or more of his own. He further said that he was 'hard of hearing,' and 'was not sure what Perry Green told the sheriff about breaking in Cabell's store.' He claimed that he was not in the vicinity of Cabell's store the night of September 23rd-24th, and that he taught a class in Sunday school on the morning of September 24th, and did not see Green on that day. He stated that he did not know Green was going on the bus on the 30th until he was ready to get on it himself.

Several witnesses testified that James was not in the vicinity of the Cabell store on the night in question. Three witnesses testified that the defendant was a young man of excellent character and reputation. Laura James said her son was 'rather deaf;' that she gave him $15 to purchase some goods for her in Richmond; and that she did not hear him tell the sheriff 'anything at all about having gotten any money from Perry Green at any time.'

In the trial court, the defendant objected to the evidence of the sheriff and his deputy as to the statements made by Green on the ground that they were made while Green was under arrest and without advice as to his legal rights. In his brief, he contends that the statements of Green, although made in his presence, were hearsay evidence and inadmissible, because he was so hard of hearing and the usual rule should not apply. The latter objection not being made in the court below cannot be considered for the first time on appeal. Rule of Court 1:8; Warren v. Warren, 93 Va. 73, 24 S.E. 913; Jackson v. Chesapeake, etc., R. Co., 179 Va. 642, 20 S.E. (2d) 489. However, there is no merit in either contention. The statements of Perry Green and the confession of Bernard James were voluntarily made. There is not a particle of evidence to the contrary.

It is generally held that the mere fact that a confession has been made, while under arrest, to a police officer, sheriff, or public prosecutor does not render it inadmissible, in the absence of any inducement, threat, or promise of reward or hope thereof held out by persons in authority. Vol. 2, Digest of Va. & W. Va. Rep., Michie, Confessions, section 1, et seq. and cases cited; Vol. 6, Va. & W. Va. Digest, West, Criminal Law, section 517, et seq.; 7 M.J., Evidence, section 227, page 606; 20 Am. Jur., Evidence, section 498, page 431; 22 C.J.S., Criminal Law, section 822, page 1441.

It is also the general rule that when a statement tending to incriminate one accused of committing a crime is made in his...