Kirkpatrick v. Com.

• Decision Date: 12 October 1970
• Citation: 176 S.E.2d 802,211 Va. 269
• Parties: Michael Allen KIRKPATRICK v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

Page 802

176 S.E.2d 802

211 Va. 269

Michael Allen KIRKPATRICK v. COMMONWEALTH of Virginia.

Supreme Court of Appeals of Virginia.

Oct. 12, 1970.

John A. Paul, Harrisonburg, for plaintiff in error.

A. R. Woodroof, Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., on brief), for defendant in error.

Before SNEAD, C.J., and I'ANSON, CARRICO, GORDON, HARRISON, COCHRAN and HARMAN, JJ.

HARRISON, Justice.

In the court below the jury found defendant, Michael Allen Kirkpatrick, guilty of robbery in the second degree, and fixed his punishment at 5 years confinement in the penitentiary. The trial judge sentenced defendant accordingly, and we granted him a writ of error to the final judgment.

On the 20th day of May, 1968, at about 2:20 A.M., James Thomas, employed as a desk clerk by the Belle Meade Motel in Harrisonburg, was robbed of $93 in United States currency (two $20 bills, one $10 bill and forty-three § bills) by an individual subsequently identified as Wayne Edward Poole. ¹

In accomplishing the robbery Poole pointed a sawed-off shotgun at the clerk. The gun was concealed in a large suitcase which Poole carried when he entered the motel. The clerk noted that the robber fled in a red car.

The police were immediately notified of the robbery and within approximately 30 minutes located a 1960 red Ford four-door hardtop automobile with a warm engine at the Rockingham Motel. Having ascertained that it driver, Kirkpatrick, was registered there, they sought and gained entry to his room, arrested and dispatched him to the Belle Meade Motel for a possible identification by Thomas. The officers thereupon completed their search of defendant's room and found Poole, who was concealed under a bed armed with a loaded sawed-off shotgun and 4 shells. He was arrested and removed from the room together with the gun and shells.

The police found in the room a large blue suitcase which was open and contained a pair of trousers with twenty-two $1 bills in the pockets. In Poole's pocketbook they found some change, one $20 bill and twenty-one $1 bills, including a creased $1 bill identified by Thomas as having come from the Belle Meade's cash register. Kirkpatrick had on his person some change, two $10 bills and seven $1 bills. In the glove compartment of Kirkpatrick's car was found a box containing twenty 12-gauge shotgun shells of the same size, type and calibre as the 5 shells that were found on Poole when arrested under the bed. A full box contains twenty-five shells.

About 1:45 A.M. on May 20th and prior to the robbery, Poole entered the lobby of the Rockingham Motel and inquired about the rental of a room for 2 or 3 days. Some 15 minutes later Kirkpatrick inquired of the clerk at the Holiday Inn about accommodations for several days. The clerk there noted that defendant was operating a red car. Neither Poole nor Kirkpatrick rented the rooms about which they inquired. The two motels and the Belle Meade are in the Harrisonburg area.

At about 2:30 A.M. and following the robbery, Kirkpatrick rented a room at the Rockingham Motel. The clerk noted that he was very nervous, impatient and excited while registering. He did not observe anyone in the red car which Kirkpatrick was driving. Poole testified that he was in the car, but was 'not setting up'--he was 'sort of down * * * over to the side'.

The Commonwealth established that for about two months prior to the robbery Kirkpatrick had lived in his father's home near Clarksville, Virginia, and during that time had worked briefly for Lawson Jones, a contractor; that in his construction office Jones kept a 12-gauge shotgun and rifle; that Kirkpatrick had been in this office a number of time; that the Jones office building was broken into and the gun and rifle removed sometime between 12 noon on May 18th and 5 A.M. on May 20th; that about 3 P.M. on May 19th, C. C. Bowman, who operates a garage across the road from the Jones office building, observed two men standing by a red 1960 Ford hardtop car at the back corner of the Jones building; and that shortly thereafter Bowman observed the car and two men leaving the premises at a rapid speed. This witness knew defendant, was familiar with the Kirkpatrick car, and thought he recognized the car as the one that defendant drove. He said the car was the only one of its model in his area at that time.

The sawed-off shotgun used by Poole in the robbery was identified by Jones as the gun taken from his office, as was the rifle also recovered by the Harrisonburg police. Defendant's father identified the suitcase and stated that it was missing from the home in which his son lived. He also said that he owned the red Ford car customarily used by defendant, and that defendant was driving it on May 19th--20th.

Poole's home is in Los Angeles, California. There is no evidence that anyone in Clarksville other than defendant knew him; that Poole was ever in Clarksville prior to Saturday evening, May 18th; or that Poole had any knowledge of the Clarksville area or its people. He was introduced to Mr. Kirkpatrick, Sr. by defendant on Sunday, May 19th. At that time Poole and defendant left Clarksville saying they intended to go to Baltimore. Defendant was not given any money by his father.

Harrisonburg is approximately 175 miles from Clarksville. Poole testified and made an effect to absolve Kirkpatrick of all involvement in the Belle Meade robbery. During the course of his testimony he said that they arrived in Harrisonburg Sunday evening, May 19th, at about 8:30 P.M. and went to see his sister, a student at Madison College, staying there until about 12:00 midnight.

Kirkpatrick made no statement to the officers following his arrest, other than to say that he did not know who Poole was, had never seen him before and did not have any idea how Poole got in the room. He said that he did not know anything about Poole.

Defendant's first assignment of error is that the court erred in allowing evidence to be introduced of the breaking and entering of the Lawson Jones office in Clarksville and the theft therefrom of two weapons. In his motion to suppress this evidence, he contended that it was 'immaterial to the alleged robbery' and that its introduction was merely intended to prejudice the jurors against the defendant.

The general rule is well established that in a criminal prosecution, proof which shows or tends to show that the accused is guilty of the commission of other crimes and offenses at other times, even though they are of the same nature as the one charged in the indictment, is incompetent and inadmissible for the purpose of showing the commission of the particular crime charged. It is also well established that evidence of other offenses should be excluded if offered merely for the purpose of showing that the accused was likely to commit the crime charged in the indictment. However, the exceptions to the general rule are equally as well established. Evidence of other offenses is admitted if it shows the conduct and feelings of the accused toward his victim, if it establishes their prior relations, or if it tends to prove any relevant element of the offense charged. Such evidence is permissible in cases where the motive, intent or knowledge of the accused is involved, or where the evidence is connected with or leads up to the offense for which the accused is on trial. Also, testimony of other crimes is admissible where the other crimes constitute a part of the general scheme of which the crime charged is a part. Frequently it is impossible to give a connected statement showing the crime charged without incidental reference to such contemporaneous and similar crimes and where there is only such incidental disclosure of other offenses. See Williams v. Commonwealth, 203 Va. 837, 127 S.E.2d 423 (1962); Day v. Commonwealth, 196 Va. 907, 86 S.E.2d 23 (1955); Barber v. Commonwealth, 182 Va. 858, 30 S.E.2d 565 (1944); Boyd v. Commonwealth, 156 Va. 934, 157 S.E. 546 (1931); Colvin v. Commonwealth, 147 Va. 663, 137 S.E. 476 (1927).

We have repeatedly recognized that the leading case on the principles here involved is Walker v. Commonwealth, 1 Leigh (28 Va.) 574 (1829). There a man was indicted for stealing a watch and evidence was admitted that at one time he had stolen a coat. In setting aside his conviction the court held that this evidence was inadmissible because it was a distinct charge which the prisoner was not called on to defend, which he could not be prepared to defend, and which had no such necessary connection with the transaction then before the court as to be inseparable from it.

In the course of its opinion, the court, speaking through Judge Brockenbrough, enunciated the principles which control our decision here as follows:

'It frequently happens, however, that as the evidence of circumstances must be resorted to for the purpose of proving the commission of the particular offence charged, the proof of those circumstances involves the proof of other acts, either criminal or apparently innocent. In such cases, it is proper, that the chain of evidence should be unbroken. If one or more links of that chain consist of circumstances, which tend to prove that the prisoner has been guilty of other crimes than that charged, this is no reason why the court should exclude those circumstances. They are so intimately connected and blended with the main facts adduced in evidence, that they cannot be departed from with propriety; and there is no reason why the criminality of such intimate and connected circumstances, should exclude them, more than other facts apparently innocent. Thus, if a man be indicted for murder, and there be proof that the instrument of death was a pistol; proof, that that instrument belonged to another man, that it was taken from his house on the night preceding the murder, that the prisoner was there on that night, and that the pistol was seen in his possession on the day of the murder, just before the fatal act...