Owens v. Commonwealth

• Decision Date: 03 September 1947
• Citation: 43 S.E.2d 895,186 Va. 689
• Court: Virginia Supreme Court
• Parties: OWENS. v. COMMONWEALTH.

43 S.E.2d 895

186 Va. 689

OWENS.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Sept. 3, 1947.

Error to Corporation Court of City of Norfolk, Part 2; Richard B. Spindle, Judge.

Abbitt Owens was convicted of grand larceny, and he brings error.

Reversed and remanded.

Before HUDGINS, GREGORY, EG-GLESTON, SPRATLEY, and BUCHANAN, JJ.

W. R. Ashburn, of Norfolk, for plaintiff in error.

Abram P. Staples, Atty. Gen., and M. Ray Doubles, Asst. Atty. Gen, for the Commonwealth.

EGGLESTON, Justice.

This case is before us on a writ of error to a judgment in the court below whereby Abbitt Owens was sentenced to serve five years in the State penitentiary, pursuant to the verdict of a jury finding him guilty of grand larceny.

One of the main assignments of error is that the verdict is contrary to the law and the evidence and without credible evidence to support it. Viewed in the light of the verdict the facts may be stated thus:

On August 2, 1946, W. M. Watkins, from whom the larceny was committed, was the manager of two housing projects, both known as Suburban Parkway and owned by Lee Housing Corporation. One of the projects is located in Portsmouth and the other in Norfolk. As manager it was Wat-kins' duty to collect the rents paid by the occupants of the apartment units and deposit the collections in bank for the account of his employer. He maintained an office at each of the developments.

Owens, as a tenant, occupied an apartment in the Norfolk project, closely adjoining the apartment and office in which Watkins resided. On the date mentioned the two men had known each other for about two or three months, during which time they had become rather intimate. Prior to his employment as a rental agent for the Lee Housing Corporation, Watkins had been a taxicab driver. Sometime during the preceding year Owens seems to have been engaged in the business of selling electrical refrigeration fixtures, but at the time of the occurrences with which we are concerned, according to his own testimony, the business enterprise had become dormant. In fact, his testimony as to his means of support is vague and unsatisfactory.

Jackson Eugene Vaughan, who according to his testimony actually committed the theft, was an intimate friend of Owens and had frequent access to the latter's apartment. Vaughan was likewise well known to Watkins.

At the time in question Vaughan, in association with others, was preparing to open a "club" at 605 Colley avenue, in the city of Norfolk.

Owens desired to sublet, his Suburban Parkway apartment and to sell his furniture therein, which required the consent of Watkins as the agent of the landlord. To further this purpose, Owens went to Watkins' Portsmouth office in the early afternoon of August 2. Watkins agreed to meet Owens and the prospective tenant at Owens' apartment that night to determine whether the subletting would be satisfactory. Owens remained at Watkins' office until after 6:00 p. m, during which time the two men had several drinks. They planned to go to Norfolk, have dinner at a restaurant, and then proceed to Owens' apartment to meet the prospective tenant. Mrs. Wilson, Watkins' stenographer, was to accompany them.

Watkins testified that the safe at his Portsmouth office was out of repair and for that reason it was necessary that he take his rent collections of the day, consisting of $605 in money and $3,400 in checks, to his Norfolk office and deposit them in his safe there. Watkins further testified that, in Owens' presence, he (Watkins) prepared a deposit ticket for the rental collections and put them in a canvas bag which he locked in the trunk or rear compartment of his (Watkins') automobile. Accompanied by Mrs. Wilson the two men drove to Norfolk.

At Owens' suggestion the party went to Vaughan's club at 605 Colley avenue, in Norfolk. While Watkins and Mrs. Wilson remained in the car, Owens went into the apartment and returned with Vaughan. The quartet sat in the car and had a "roundof drinks." After a short while Owens and Vaughan left the car and disappeared into the doorway leading to the hallway of the apartment. About ten minutes later Owens returned to the car and went with Watkins and Mrs. Wilson to a restaurant where they had dinner.

About 9:00 o'clock the three left the restaurant, proceeded to Owens' apartment in the Suburban Parkway in Norfolk, parked the car near by and went into the apartment.

Owens' prospective tenant came in about 10:30 p. m. He turned out to be George Barger who was well known to Watkins and entirely acceptable as a tenant. Thus the arrangement for which the meeting had been planned was concluded in a few minutes.

Strange as it may seem, although Watkins, Barger and Owens were well known to each other, and although Barger was entirely satisfactory to Watkins as a tenant, yet until this meeting Owens had never disclosed to Watkins that Barger was his prospective tenant.

Barger was accompanied to Owens' apartment by a Miss Anderson. After the business arrangement had been completed, which, as has been said, required only a few minutes, Owens and Barger began a card game which lasted until about midnight. During this time Watkins, Mrs. Wilson and Miss Anderson remained in the apartment.

About midnight Watkins and Mrs. Wilson prepared to leave. Owens announced that he would accompany them to Watkins' automobile. When the three reached the car they found that it had been plundered. The upright cushion in the rear seat had been pulled forward, the cardboard partition between the rear seat and the trunk compartment had been cut through, and the canvas bag containing the checks and money was missing. The glove compartment had been forced open and the wiring tampered with. In the car were found a kitchen knife and a screw driver which Owens later admitted were his property and had come from his apartment.

While Owens, Watkins and Mrs. Wilson were standing around the car discussing what should be done, Barger came down from the Owens apartment to see what was detaining Owen and interrupting their card game. After some discussion the parties proceeded to the Second Precinct Police Station where the occurrence was reported.

Detective Jones had Watkins relate his movements during the entire afternoon and evening and as a result of this recital Jones' suspicion rested on Owens. Jones ordered Owens detained at the police station while officers were sent to look for Vaughan who was located at the Colley avenue apartment. Upon a search of Vaughan's premises the canvas bag containing the checks and bankbook was found concealed in an unused oil heater. In a coat pocket $500 in currency was found, and Vaughan gave up the rest.

Confronted with this situation, Vaughan confessed that he had pilfered the car and implicated Owens as an accomplice. Vaughan said that when the party came by his apartment in the afternoon, Owens disclosed to him that a considerable amount of money was in the rear of Watkins' car and that the vehicle would be parked in front of his (Owens') apartment during the early part of the night. Owens suggested, Vaughan said, that the latter break into the car and take the money. While Watkins, Owens and Mrs. Wilson were at the restaurant Vaughan said he proceeded to Owens' apartment, entered it with a key which Owens had loaned him, and procured the knife and screw driver which were used in pilfering the car.

In the meantime Owens had been questioned and had denied any knowledge of or connection with the theft. Vaughan was then brought into the room and in Owens' presence and hearing made the statement that Owens was his accomplice, and, indeed, had planned the theft in the manner we have related. In the face of this accusation Owens remained silent. He neither denied nor affirmed Vaughan's accusation. Thereupon both Vaughan and Owens were put under formal arrest and charged with the crime.

The two men were jointly indicted at the September term of court and elected to be tried separately. Vaughan was put on trial first and pleaded guilty. Pending the pro-nouncement of judgment on him he was admitted to bail in the sum of $1,000, his automobile being given as security.

Upon Owens' trial Vaughan was one of the principal witnesses for the Commonwealth and testified as has been stated.

It is argued that the testimony of Vaughan, the self-confessed accomplice, contains so many conflicting statements as to render it inherently incredible and unworthy of belief.

There are inconsistencies in the statements of this witness. Indeed, some of his testimony, as transcribed, is incoherent and meaningless. Manifestly, this is due in part, at least, to the inaccuracy of the reporter, for similar defects appear in the testimony of other witnesses and are the subject of comment in the briefs on both sides.

But the inconsistencies and inaccuracies complained of do not, we think, render the testimony of this witness inherently incredible or entirely lacking in probative value. In the main his testimony is corroborated by these uncontroverted circumstances:

Owens knew that a considerable amount of money had been placed in the automobile compartment and that the car would be at his (Owens') apartment that night. He must have conveyed the information to Vaughan, for how else could the latter have known it?

Owens had ample opportunity to convey the information to Vaughan while they were together, on two occasions, in the Vaughan apartment, out of the hearing of Watkins and Mrs. Wilson while the latter sat in the parked car.

Vaughan had possession of Owens' key, as testified by Vaughan, because Watkins had to gain access to Owens' apartment by the use of his (Watkins') master key. Moreover, the key to the Owens apartment was in Vaughan's possession when the latter was arrested.

Owens admitted that the knife and screw driver used by Vaughan in entering the car came from his (Owens') apartment which corroborates Vaughan's statement that he entered the apartment while the party was...