Jordan v. Com.

• Decision Date: 20 November 1966
• Parties: Willard C. JORDAN v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

Page 390

151 S.E.2d 390

207 Va. 591

Willard C. JORDAN v. COMMONWEALTH of Virginia.

Supreme Court of Appeals of Virginia.

Nov. 20, 1966.

Murray A. Stoller, Roanoke, for plaintiff in error.

D. Gardiner Tyler, 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.

Willard C. Jordan, defendant, was indicted for statutory burglary and grand larceny. The jury found defendant guilty of grand larceny and fixed his punishment at confinement in the State penitentiary for a term of seven years. The case is before us upon a writ of error awarded to the judgment entered on the jury verdict.

Early on the morning of March 13, 1965, Roanoke City Police Officers E. B. Hamblett and W. L. Bowling were patrolling the northwest section of the city. As they approached Starland Bowling Lanes on Shenandoah avenue the lights of their automobile were turned off as was customary, and they drove into Starland's parking lot for a 'routine check' of the property. Starland had been closed and was 'under Government supervision'. ¹ There were signs posted on the building which read '(N)o trespassing Government property'. Adjacent to the bowling alley and surrounded by an eight-foot cyclone fence is the Macke V.C.S. Vending Corporation building which was later discovered to have been burglarized.

As Hamblett drove the vehicle under a light in Starland's driveway, Bowling spotted defendant running on Starland's property adjacent to the building. Because of defendant's suspicious conduct Hamblett chased defendant across a field toward an abandoned 'go-cart track'. He called for defendant to halt and upon his failure to comply fired a warning shot in the air. Defendant ran into a fence surrounding the track which 'knocked him back and he jumped back and broke the fence.' He surrendered inside the fence and was brought back to the police car. Although the weather was 'mild', defendant was attired in 'coveralls' and was wearing cotton gloves.

Defendant told the officers that he was running because they 'excited him'; that he left the highway and went on the Starland property for 'physical purposes'; that he was cold and was 'trying to find a place to sleep'; that his home was in Florida; that he had hitchhiked from West Virginia and had just arrived in Roanoke; and that he owned a 1955 Buick with Florida license tags which was parked at a motel where he was staying 'up the road about a couple of miles.' Defendant was placed under arrest at the scene by Officer Bowling. Hamblett was asked on direct examination why defendant was arrested. He testified 'Well he was on Government property.' After defendant's arrest, a search of his person revealed a woolen mask of a type generally used by skiers which completely covers the head, except for eye, nose and mouth openings, and also a 'Wittenburg Sandwich Machine wrench' which is specially designed for the adjustment and repair of vending machines. This tool was later positively identified as having been taken from a locker drawer in the Macke building.

Before leaving the scene, the officers made a casual outside inspection of the buildings in the vicinity, but saw no evidence of an entry. The officers, accompanied by defendant, attempted to locate defendant's motel and Buick automobile. The search was futile and defendant was taken to police headquarters where he was docketed at 4:41 a.m. for 'vagrancy' and held for 'investigation.' Hamblett and Bowling immediately returned to the scene to make a thorough check of the premises. They arrived there about 5 a.m. and proceeded to trace 'the same route we had taken when we arrested Mr. Jordan.'

The officers found 'evidence of where someone had climbed the fence' which separated the Macke property from the Starland property. A small part of the fence at its base had been pushed up. An empty money bag was discovered close to and inside the fence. In the grass on the Starland side of the fence the officers found a money bag which contained between forty and fifty dollars in silver. A similar amount in coin was found scattered along the fence toward the Starland driveway.

An official of Macke was called to the scene and a search of the interior of the building disclosed that the building had been burglarized. It was ascertained that entry had been accomplished through a small rear window that was very difficult to see from the outside. On the inside, holes had been punched through two cinder block walls to gain entry to the room where the safes were located. A large double door 'wall safe' and a smaller safe were found to be badly damaged and the doors open. A Macke official testified that approximately $11,000 had been taken of which 85 percent was in coin, and that a coin sorter valued at $1,000 was also missing.

Lieutenant Thomas of the Roanoke detective bureau, who was in charge of the investigation, arrived at the scene at 6:30 a.m. He testified that he found near the fence three metal coin cans, two wheeled dollies which Macke used on the inside of its building to move freight, and also truck tracks on Starland's side of the fence. Immediately after the investigation on the morning of March 13, Lieutenant Thomas charged defendant with the offense of statutory burglary.

The clothing defendant was wearing at the time of his arrest and specimens of safe insulation and paint chips taken from the safes, mortar and cinder block chips taken from the floor where the partitions were knocked out, were each individually packaged, sealed and forwarded by the Roanoke Police Department to the Federal Bureau of Investigation laboratory for analysis and comparison. Richard W. Flach, an FBI laboratory technician and F. L. Edwards, an FBI agent assigned to the spectrographic unit, after qualifying as experts, testified in detail as to the results of their respective analyses. Flach stated that the safe insulation, cinder block chips and mortar found on defendant's clothing were of the same consistency as the samples forwarded. Edwards testified that the paint chips removed from one of Macke's safes matched paint fragments found on defendant's clothing.

The defendant neither testified nor offered any evidence in his behalf.

The defendant has made 14 assignments of error. Essentially, he alleges (1) that his arrest was illegal and as a consequence evidence obtained by the search of his person was inadmissible; (2) that the interrogation of him by an officer was unlawful; (3) that a witness was improperly qualified as an expert; (4) that the court erred in refusing to strike the Commonwealth's evidence; (5) that the court erred in giving and in refusing certain instructions; (6) that the court erred in failing to set aside the verdict which convicted him of grand larceny because of insufficient evidence and because the jury was not instructed on the elements of grand and petit larceny; (7) that his 'rights were infringed' by the imposition of excessive bail; and (8) that the court erred in refusing to set aside the verdict as being contrary to the law and evidence.

First, we shall consider defendant's contention that his arrest was unlawful. He says this is so because (1) he was not arrested on a warrant; (2) he did not commit a misdemeanor in the presence of the arresting officers, and (3) the officers did not have reasonable grounds to believe that he had committed a felony. On the other hand, the Commonwealth takes the position that defendant's arrest was lawful because a misdemeanor was committed in the presence of the officers and because the officers had reasonable grounds to believe that defendant had committed a felony.

Code, § 19.1-20 provides in part:

'* * * Every conservator of the peace shall arrest without a warrant for felonies committed in his presence, or upon reasonable suspicion of felony, and for breaches of the peace and All misdemeanors of whatever character committed in his presence.' (Emphasis added.) See also Byrd v. Commonwealth, 158 Va. 897, 902, 164 S.E. 400, 402; 2 M.J., Arrest, §§ 8 and 9; 5 Am.Jur., 2d, Arrest, §§ 25 and 28; 6 C.J.S. Arrest, § 5.

Code, § 18.1-173 reads:

'If any person shall without authority of law go upon or remain upon the lands, buildings or premises of another, or any part, portion or area thereof, after having been forbidden to do so, either orally or in writing, by the owner, lessee, custodian or other person lawfully in charge thereof, Or after having been forbidden to do so by a sign or signs posted on such lands, buildings, premises or part, portion of area thereof at a place or places where it or they may be reasonably seen, he shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a find of not more than one thousand dollars or by confinement in jail not exceeding twelve months, or by both such fine and imprisonment.' (Emphasis added.)

It is manifest from a reading of the two foregoing sections of the Code that a police officer may arrest without a warrant when a misdemeanor is committed in his presence, and that when a person without authority of law goes upon the lands, buildings or premises of another after having been forbidden to do so by a sign or signs posted on the 'premises or part, portion or area thereof at a place or places it or they may be reasonably seen, he shall be guilty of a misdemeanor.'

The record shows that there were signs posted by the U.S. Government in conspicuous places on the Starland building which read '(N)o trespassing Government property.' The defendant was first seen by the officers running on Starland's property adjacent to its building. The defendant had no authority of law to be on the premises and his presence there under the circumstances constituted a misdemeanor.

It is true that Officer Bowling testified that he placed defendant under arrest for 'vagrancy', and that defendant was...