La Prade v. Com., 3719

• Decision Date: 09 October 1950
• Docket Number: No. 3719,3719
• Citation: 191 Va. 410,61 S.E.2d 313
• Court: Virginia Supreme Court
• Parties: HARRY E. LAPRADE v. COMMONWEALTH OF VIRGINIA. Record

Page 313

61 S.E.2d 313

191 Va. 410

HARRY E. LAPRADE v. COMMONWEALTH OF VIRGINIA.

Record No. 3719.

Supreme Court of Appeals of Virginia

October 9, 1950.

J. Bradie Allman and Clyde H. Perdue, for the plaintiff in error.

J. Lindsay Almond, Jr., Attorney General, and Henry T. Wickham, Assistant Attorney General, for the Commonwealth.

JUDGE: MILLER

MILLER, J., delivered the opinion of the court.

Harry E. LaPrade was indicted under the provisions of section 4428, Code, 1942 (sec. 18-149, Code, 1950), for maliciously burning in the nighttime a stable containing livestock.

The trial was had before a jury and accused elected not to testify nor did he offer any witnesses in his behalf. The evidence against him was wholly circumstantial. He then contended and now asserts that it was insufficient to justify conviction. A verdict of guilty was, however, returned which fixed his punishment at three years confinement in the penitentiary. To a judgment entered thereon, this writ of error was awarded.

Petitioner relies upon two assignments of error:

(1) That the evidence is insufficient to sustain the verdict, and in that respect asserts that (a) it does not establish beyond a reasonable doubt that the fire was of incendiary origin, and (b) if so, then it is not proved that he was the guilty agent; and

(2) That improper and harmful testimony was admitted over his objection.

The errors assigned render it necessary to set out the salient facts and circumstances proved which are as follows:

On the night of March 25, 1949, between 9:00 and 9:30 o'clock, a building (interchangeably called a barn or stable) owned by J. C. Angle, containing hay and in which several head of livestock were housed, was destroyed by fire. The building was a total loss, and though some of the stock escaped, four head of cattle and one horse were killed. There had been rain a day or two before the fire and the night was damp and foggy. The owner, assisted by his two children, had attended to the usual chores at the barn and departed therefrom between sunset and dark. He does not smoke and was the last of these three in the building. There was no electric or delco system servicing the barn, nor was there any combustible material such as oil, gas or explosives kept in or about the structure. The home of Houston Angle, a son of the owner, is about two hundred yards from the barn. That night he looked at a clock in the window of his residence at 9:15 p.m., and in so doing, faced directly towards the stable, but saw no evidence of fire. However, two or three minutes later when he again looked in that direction, the flames had engulfed the building and 'it looked like the whole earth was lit up.' He ran from his home toward the stable but when he arrived, the fire was so intense that it was unsafe to go nearer than fifty feet of the building. At that time the barn 'was burning all over, fire running out of the roof, sides, eaves, everywhere,' and the 'floor under the shed was falling in * * *.'

When about half way from his home to the conflagration, Houston Angle thought he smelled the odor of gasoline. However, when he thought he sensed that odor, he was about as close to his parked automobile as he was to the burning barn, and upon arriving at the fire, he noticed no such odor. J. C. Angle's residence is also nearby and as Houston Angle ran towards the fire, he called and notified his father, who, in a minute or two, followed him to the scene.

At the stable, the owner and his son saw human footprints in the mud. These tracks disclosed that someone whose feet were clad only in socks had approached, entered and departed from the barn. The imprints were distinctly visible in soft red mud around the barn, which contained small particles of isinglass.

Upon ascertaining that they could do nothing to free the stock or stop the fire, J. C. Angle and his son drove to Rocky Mount to notify R. C. Ramsey, sheriff of Franklin county. When the two returned some thirty minutes later, they recognized accused's truck parked on the edge of the public road just opposite the road leading to the barn and within sight of the burning building. They did not ascertain whether or not the truck was occupied, but when the sheriff and his deputy arrived about five minutes later and noticed the truck, they saw that it was occupied by Harry E. LaPrade and his cousin, a boy named Eunice Lynch. They stopped and talked a moment with the occupants and asked if they had been to the fire, to which inquiry accused replied that 'they had not.' The sheriff and his deputy observed that accused was then intoxicated. They proceeded on a short distance to the scene of the fire, and after being there a few minutes and observing the footprints in the mud, they heard the LaPrade truck drive off. It proceeded along the public highway and turned into accused's home, which is situated across that road from the barn. The sheriff and his deputy thereupon ceased for the time being their investigation at the barn and went to LaPrade's home, where they found him still seated in his truck and much under the influence of intoxicants. Accused was wearing shoes which he was requested to remove, and after some slight hesitation, complied. It was then ascertained that he wore no socks and red mud was on his feet, between his toes and in his shoes, which mud contained particles of isinglass. He was asked where his socks were and replied that 'he didn't have none.' He was again asked if he had been to the barn and said, 'No, sir, I haven't been there.'

About twelve or fifteen sock clad foot tracks were distinctly visible at, about and entering the barn, and some forty or fifty less distinct tracks led away from the barn. Still further along, there were some marks of mud on the grass, leaves and rocks. The sheriff gives this description of the tracks at and near the premises:

'I saw those tracks leading into the barn -- barefooted. * * * The tracks come out of the barn and turned right up the road like a man was staggering, the tracks weaved that away, stepped in a deep ditch, a rut that deep you might say, of mud where automobiles had been, then he staggered out, one foot on the bank, and one in the road, kept on up the road a ways and turned out to the left up a bank over some rocks. We tracked him on up through there that night by the mud on his feet.'

The sock clad footprints near and about the barn appeared to be those of a man wearing about a seven or eight size shoe. They were sufficiently visible as they led away from the scene to be followed for some distance and to the woods. From there the tracks were indistinct but the pedestrian's course could be traced by particles of mud left on leaves and stones until it reached an old road. From there some rather indistinct tracks appeared but they disclosed that the maker there wore shoes. This course could be, however, followed with difficulty along a graveled road to within forty or fifty steps of LaPrade's home where 'it gave out.'

The next morning a further investigation was made and the sheriff went again to LaPrade's home. He asked accused where the shoes were that he had worn the night before and accused replied that the shoes that he was then wearing were the same that he had worn the previous night. However, defendant's consin, Eunice Lynch, then in the presence of defendant contradicted that statement and said that the shoes then worn by defendant belonged to him (Lynch) and he had loaned them to defendant, whereupon accused answered no further inquiries concerning the shoes that he had worn the evening of the fire.

On the other hand, it appears that though a careful investigation and search were made around and about the scene the night of the fire, and the course of the tracks followed as best they could be by the aid of flashlights, and accused's home and premises examined, no muddy socks were located, nor was any container that might have held gasoline observed. The following morning a more thorough examination and search were made but no such articles were found. We therefore conclude that the mere thought on the part of Houston Angle that he smelled the odor of gasoline when some considerable distance from the barn is of no probative value to establish that gasoline was an ingredient used by some incendiary to start the fire.

It should now be also stated that a rather cursory examination was made of the mud near and about accused's home and though some of it was of a somewhat different color from that about the barn, it contained particles of isinglass.

About a month after the fire, accused told the deputy sheriff that 'the reason I didn't let you all have the shoes was my lawyer advised me not to.' Yet it is rather obvious that accused had not enjoyed an opportunity to consult counsel between the night of the fire and the following morning when questions were propounded to him.

On the morning of March 26th when the sheriff called at the home of accused, he found his feet free of mud that had been noticed the previous night. Request was made that he go to the site of the barn and there he was asked to take off his shoes and put his bare foot into one or more of the then visible imprints. The sheriff says that accused somewhat reluctantly complied, but when he placed his foot in the first track, he did it in such a manner as to touch the side of the imprint and enlarge the track. He was then directed to try another print, which he did. The testimony is that his foot fit that track.

Two other tracks or imprints in the...