Pierce v. Com.

• Decision Date: 11 September 1964
• Citation: 205 Va. 528,138 S.E.2d 28
• Parties: Ruben PIERCE v. COMMONWEALTH of Virginia. Hubert Earl HOFFLER v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

Page 28

138 S.E.2d 28

205 Va. 528

Ruben PIERCE v. COMMONWEALTH of Virginia.

Hubert Earl HOFFLER v. COMMONWEALTH of Virginia.

Supreme Court of Appeals of Virginia.

Sept. 11, 1964.

Robert J. Parr, Suffolk (Major M. Hillard, Jr., Portsmouth, Thomas L Woodward, Parr & Hunter, Suffolk, on brief), for plaintiffs 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, WHITTLE, SNEAD, I'ANSON and CARRICO, JJ.

BUCHANAN Justice.

The defendants, Ruben Pierce and Hubert Earl Hoffler, were indicted separately for robbery in taking an ignition key to a truck from Joseph Jordan by putting him in fear by means of a loaded pistol. Code § 18.1-91. Each waived a jury and at their request and by agreement they were tried together by the court. After hearing the evidence the court found each guilty of robbery and fixed his punishment at five years in the penitentiary and each was sentenced accordingly.

Each defendant was granted a writ of error and they are here on a joint brief in which they contend that the judgments were contrary to the law and the evidence; that there was no evidence of any intent to steal; and that Pierce in no way acted in concert with Hoffler.

The evidence is in conflict. Four persons were present at the scene of the alleged crime, which occurred in a house on Crumpler Lane in the city of Suffolk on January 13, 1962. Two of those present testified for the Commonwealth as follows:

Joseph Jordan testified that a few days prior to January 13 he had a conversation with Pierce in which Pierce said he wanted to buy Jordan's truck and Jordan told him he would sell it to him for $150. Pierce said he wanted to take it to his buddy and let him look at it, so Jordan gave Pierce the keys and Pierce kept the truck about three days and then brought it back and gave Jordan the keys.

Prior to offering to sell the truck to Pierce, Jordan had agreed o sell it to Gilbert Rollins for $150, and Rollins had paid him $115, but had later given Jordan permission to sell the truck and return to Rollins the amount he had paid on it, and Jordan said that was what he was planning to do.

On January 13, Pierce came to the house on Crumpler Lane and told Jordan he wanted to take him to see his buddy and get the money to pay for the truck. On the way Pierce told Jordan he was going to give him $32 and three cases of liquor for the truck. Jordan told him he did not want that; that he wanted money for the truck; so Pierce brought him back to the house and left, saying he was going to get the money. This was about ten o'clock in the morning. He came back around two o'clock that afternoon bringing with him the defendant Hoffler, whom Jordan had never seen before.

Pierce came into the house first, followed by Hoffler. Hoffler asked Jordan why he made a deal with Pierce and then wanted to back out. Jordan tried to explain to him he had not made any deal and looked around to say something to Pierce. As he did so, Hoffler whipped out a pistol and hit Jordan on the side of the head with it and fired the pistol. The bullet went through a wall of the room. Hoffler then held the pistol on Jordan and forced him to give the keys to the truck to Pierce, who was standing by. Pierce and Hoffler then drove the truck away and it was afterwards picked up by the police and returned to Jordan. Neither defendant ever gave Jordan any money for the truck.

After this occurrence Jordan procured a warrant against Hoffler charging him with larceny of the truck in Nansemond county but did not press that charge and it was withdrawn. He said the people told him he had to get a warrant before he could get his truck back.

Florence Staton, another of the four persons present, corroborated the testimony of Jordan that Hoffler forced Jordan at the point of a pistol to give the keys to Pierce, and that no money was given or involved in the occurrence. She said that after Hoffler fired the pistol Pierce told Hoffler he didn't want to have any trouble; then Jordan at the command of Hoffler gave the keys to Pierce, and Pierce and Hoffler backed out of the door as Hoffler kept the gun on Jordan.

On behalf of the defendants, Pierce testified that he bought the truck from Jordan for $150 and paid him $115 in cash; that Jordan delivered the truck to him and he told Jordan he would bring the rest of the money back in a day or two and pick up the title; that in about a week or more he came to Suffolk, picked Jordan up and took him in a car to mr. Cofield's, in Norfolk, and on the way Jordan told him he was not going to let him have the truck at the price he promised; and he, Pierce, wouldn't agree to give him any more. They went on to Cofield's and there Hoffler, in the presence of Cofield, said, 'Well, take him on back and let him give you your money back.' When they got back to Suffolk, Jordan said he wasn't going to give him any money until he brought the truck back, so Pierce returned to Portsmouth where the truck was [he first said it was in Norfolk] and got Hoffler to drive the truck back. Their purpose was, he said, to get the money he had given Jordan.

When they arrived at Crumpler Lane, Hoffler stayed outside but Pierce went into the house and Jordan said 'I'm not going to give you the truck and I'm not going to give you the money.' Thereupon he, Pierce, called Hoffler, who came in and asked Jordan why he wouldn't give the money back, or was he willing to give the money back. Jordan said no and 'blowed up there and made a rush there and--* * * made a--sorta got loud in his talk and in a minute or two the gun fired and that's all there was to it. We didn't get the money and we didn't get the truck.' Pierce said he did not know who fired the gun or why. He was then asked, 'What about the keys?' He replied, 'We left the keys there.' But he also said that they took the truck back to Portsmouth and left it until some officer came and got it. He said Cofield saw him pay Jordan the $115 and 'counted the money himself.'

Defendant Hoffler testified that Pierce told him he had made arrangements to buy a truck in Suffolk and wanted him to look at it; that they met Jordan at the Amoco station on Norfolk Road and he, Hoffler, paid 'the man' $115 and took the truck to Cofield's junk yard in Portsmouth and left it there a week or then days. Then he asked Pierce 'did he ever get it straightened out.' He said no and he was going to find 'the boy.' Pierce brought Jordan to the junk yard but 'Jordan went up $50 on the price.' He asked Pierce why he didn't let Jordan give his money back and forget about the truck. Jordan said he would give him the money back if they would take him and the truck back to Suffolk. Hoffler drove the truck back to Suffolk. There Pierce went into the house to get the money but came back out and said Jordan wouldn't give him the truck or the money either, and that Jordan said 'come on in and we'll get the damn mess straight right now.' He, Hoffler, went into the house and said, 'What's all the argument about? * * * Give him the money back or give him the truck; the deal you agreed on.' Jordan reached into his pocket and took out a knife and said, 'You ain't got a damn thing to do with it.' He, Hoffler, then pulled a pistol out of his pocket and hit Jordan on the side of the head with it and told him, "Make another move with that knife, I'll kill you.' We backed out the door and got in the truck and left.' He said that Pierce had the keys. The gun went off accidentally, he said, when he hit Jordan with it.

The defendants assert first that this evidence does not furnish sufficient proof of robbery. The statute, code § 18.1-91, fixes the punishment for, but does not define the crime of robbery. Consequently we look to the common law for its definition. Butts v. Commonwealth, 145 Va. 800, 811, 133 S.E. 764, 767; Fleming v. Commonwealth, 170 Va. 636, 639, 196 S.E. 696, 697.

Robbery at common law is defined as the taking, with intent to steal, of the personal property of another, from his person or in his presence, against his will, by violence or intimidation. Mason v. Commonwealth, 200 Va. 253, 254, 105 S.E.2d 149, 150.

The evidence being in conflict, the judgment of the trial court who heard...