Myers v. Commonwealth

• Decision Date: 16 March 1922
• Citation: 111 S.E. 463
• Parties: MYERS et al. v. COMMONWEALTH.
• Court: Virginia Supreme Court

111 S.E. 463

MYERS et al.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

March 16, 1922.

Error to Corporation Court of Roanoke.

William Myers and another were convicted of breaking and entering a railroad car, and they bring error. Affirmed.

The accused were jointly indicted. The indictment contains only one count, and in that one count charges that both of the accused, at a certain time and place stated, did feloniously break and enter a certain railroad car, the number, etc., of which is stated, "then and there in the lawful custody and control" of a certain railroad company designated, "with the intent to commit larceny therein"; and further charges both of the accused with actual larceny, at the same time and place, consisting of the feloniously taking, stealing, and carrying away from said railroad car of "26 raincoats of the value of $253.50, and 12 rain hats of the value of $6.50, * * * billed to" certain consig nees named, in a certain state named, "and 48 pairs of shoes of the value of $276 billed to" certain consignees named, at a certain place in a certain state, both named; "all of which said raincoats, rain hats, and shoes being then and there of the aggregate value of $536, and being then and there in the lawful custody and possession of the said" railroad company, again naming it, "and in said railway car being then and there found. * * *" The accused demurred to the indictment on the ground that it "contained no specific description of the articles alleged to have been taken." The court overruled the demurrer.

Thereupon the accused were jointly arraigned and pleaded not guilty. Upon this issue there was a trial by jury, which resulted in the following verdict:

"We, the jury, find the defendants, T. J. Stewart and Wm. Myers, guilty as charged in the within indictment and fix their punishment at 3 years each in the penitentiary"

—and the judgment under review was entered accordingly.

The material facts and circumstances, as the jury were warranted in finding them from the evidence, may be summarized as follows:

The corpus delicti, both of the burglary and of the larceny charged in the indictment, were established by the proof beyond a reasonable doubt.

Upon the question of the identity of the thief or thieves, the jury were warranted by the evidence in finding the following facts namely:

That the offenses of the car breaking and the larceny charged in the indictment were committed at one and the same time by the same person or persons. The situation upon this subject, as shown by the record, is as follows: The car was inspected after it arrived in the city, at 6:54 p. m. on August 2, 1920, and found to need some small repairs. The doors of the car were at that time found to be fastened and sealed, and the car was in such condition that it could not have been entered through the doors without breaking the seals. In that condition the car was, during that night, placed on a repair track. The next morning, at about 9 o'clock, the car repairers when they came to repair the car, found the seals broken, that the doors had been opened, and that some of the raincoats, hats, and shoes which had been in the car had been stolen, some broken boxes, shoes and raincoats being still in the car, lying scattered over the car floor. In their testimony in the case neither of the accused nor any witness in their behalf claimed that the accused obtained possession of the stolen goods, subsequently found in their possession as below stated, from any other person, orin any other way, than from the custody of the railroad company by means of the breaking and entering of the said car. The sole claim made by the testimony of and for the accused on this subject was that neither of them ever had any of the stolen goods in their possession.

Three days after the car breaking and larceny aforesaid several boxes of the stolen shoes, with the name of the consignees stated in the indictment appearing on the boxes, were seen by a witness for the commonwealth in the same city in which the car breaking and larceny were committed in a garage in which the accused Stewart kept his automobile. The garage was kept locked by Stewart at the time. This witness, in Stewart's absence, looked through a crack in the side boarding of the building, and saw the boxes of shoes aforesaid. The witness was the owner of the garage, and rented it to Stewart about three months before he discovered the stolen goods as just stated. At the time Stewart rented the garage, Myers, the other accused, accompanied Stewart, and from time to time thereafter Myers and Stewart were seen together at the garage. Subsequently to the aforesaid discovery of the stolen shoes, and during the same month of such discovery, the wife of the owner of the garage, also a witness for the commonwealth, saw Myers come from the direction of the garage with several pairs of shoes, which, from the description given by the witness, the jury were warranted in finding were some of the stolen shoes, and carry them upstairs to a room rented by his sister, in which Myers sometimes stayed about this time. Myers took the stand as a witness in behalf of himself and of Stewart, and upon cross-examination admitted that he was familiar with the garage aforesaid; had been in there several times. He gave a false account, however, of how he came by the shoes which the witness for the commonwealth last mentioned saw him carrying from the garage, if the testimony of that witness is to be believed. On this subject Myers testified that he "might have carried some old shoes that (he) had left up in the garage there somewhere" from the garage to his sister's apartments, but denied that he so carried any shoes of the description of the stolen shoes from the garage, or ever saw any such shoes in the garage or any shoe boxes therein.

During the same month that the shoes were discovered in the garage as aforesaid Stewart sold two pairs of the stolen shoes to one Philpots, Stewart stating at the time of the sale as the reason for his selling the shoes that they were too small for him. Stewart also testified as a witness in behalf of himself and Myers, and admitted selling two pairs of shoes to Philpots at the time aforesaid, but gave a false account of how he came by them, claiming that he bought them while on a trip in West Virginia. These two pairs of shoes were identified by the testimony for the commonwealth as having come from the lot of shoes described in the indictment, by proof which amounted to practically absolute certainty. It was proved before the jury that the lot of shoes described in the indictment had certain numbers stamped by the manufacturers at the time they were made on the lining on the inside of the shoes and on the soles of the shoes, underneath the heels. The numbers on the two pairs of shoes just mentioned, on the lining on the inside of the shoes, had been inked out when they were sold to Philpots, and so appeared at the trial; but at the trial, when the heels were removed, the numbers found there were the numbers put thereon by the manufacturers on certain of the shoes described in the indictment, and so identified these shoes as having come from that lot of shoes almost beyond all possibility of doubt.

As to the raincoats and hats: The car breaking and larceny aforesaid was in the nighttime or early morning. The day following, or upon the next day, according to the testimony for the commonwealth, Stewart and Myers were, in the same city aforesaid, seen in the manual possession of seven of the raincoats and eight of the rain hats which were stolen as aforesaid. They drove up to the store of an Assyrian named Assaid, in said city, in an automobile, accompanied by two other men. One of the men stayed in the automobile. Stewart and Myers, accompanied by the other man, came into Assaid's store. Stewart and Myers brought in with them the raincoats and hats just mentioned, and asked if Assaid would buy them or handle them. Assaid was not himself present, his wife and son being in the store in charge of it. The wife and son first declined to buy or handle the goods, stating to Stewart and Myers that Assaid was about to sell his stock of goods in bulk, and expected to inventory the stock that week. Whereupon Stewart and Myers said:

"You can inventory them [the raincoats and hats they had brought in the store as aforesaid] with the stock, and whatever you get for them you can pay us, and we won't fall out over the price"

—and left the goods there with that understanding. Neither of the accused ever came back to the store or asked for any settlement for the goods. These goods were found iu the store by an officer some 20 days after they were left there as aforesaid by Stewart and Myers. The manufacturer's labels on them had been removed, but when the bunch of coats were taken up one of the labels was found lying "sort of on the sleeve" of one of the coats, which was a label of the manufacturer of the raincoats and hats which were stolen as aforesaid. In their testimony in the case both Stewart and Myers deniedall knowledge of the raincoats or hats just mentioned, denied that they ever had any of them in their possession, said that it was not true that they carried them into the As-said store or ever were in that store.

At the trial the court gave the following instructions, (Nos. 2, 3, 4, and 5 being given at the request of the accused):

"Instruction No. X. You are instructed that the burden is upon the commonwealth to prove the guilt of the defendants beyond a reasonable doubt. If you believe from the evidence beyond a reasonable doubt, first, that the defendants, or either of them, broke and entered the railroad car with intent to commit larceny therein, you should find them guilty as charged in the indictment; or, second, if you believe that they stole the goods out of the car without breaking and entering beyond a reasonable doubt, you should find them guilty of grand...