Riegert v. Com., 761371

• Decision Date: 07 October 1977
• Docket Number: No. 761371,761371
• Parties: William P. RIEGERT v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 803

237 S.E.2d 803

218 Va. 511

William P. RIEGERT v. COMMONWEALTH of Virginia.

Record No. 761371.

Supreme Court of Virginia.

Oct. 7, 1977.

Laurence G. Roman, Vienna (Joseph Semo, Roman, Lechner & Seifman, Vienna, on brief), for plaintiff in error.

Jim L. Chin, Asst. Atty. Gen. (Anthony F. Troy, Atty. Gen., on brief), for defendant in error.

Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

COMPTON, Justice.

In this criminal appeal, we examine the evidence to determine whether it is sufficient to convict the defendant of larceny by false pretenses. We also consider whether duly-attested abstracts of civil money judgments against the defendant were admissible as evidence in this criminal trial and whether the defendant was prejudiced by references made during the trial to a proceeding in which defendant was adjudicated a bankrupt. We find error in all three instances and reverse the conviction.

Defendant William P. Riegert was indicted on November 24, 1975 for "steal(ing) property of Haywood L. Darnell having a value of approximately $5350.00. Va.Code §§ 18.1-100, ¹ 18.1-118. ² " Tried by a jury on June 8, 1976, defendant was found guilty as charged and his punishment was fixed at confinement in jail for 90 days and a fine of $1,000. To the trial court's June 18, 1976 judgment of conviction, which confirmed the jury's verdict, we awarded defendant a writ of error.

Viewed in a light most favorable to the Commonwealth, the evidence discloses these facts. On Saturday, January 11, 1975, Darnell, an auctioneer, pursuant to a contract with Mrs. John G. Carpenter, conducted an auction on the Carpenter property in Orange County to dispose of a part of the estate of Mrs. Carpenter's deceased husband. Among the items advertised to be sold at the auction were livestock and "app(roximately) 8,000 Bales" of hay.

One of those attending the auction was the defendant Riegert, who resided in Northern Virginia and who had received a brochure publicizing the event. Riegert, a developer and contractor for five years who planned to buy a farm, had purchased hay (20 bales) only once before.

Prior to commencement of the bidding on the hay, Darnell announced to the audience that the hay would be sold in bulk and not by the bale. He also stated several times to the group that less hay than advertised was available for sale; he invited those who planned to bid on it to carefully examine the quantity of hay, which was stored at several different locations on the Carpenter property. Although the defendant testified to the contrary, the Commonwealth's evidence showed the Darnell said nothing to the group about making any "adjustment" in case the lot of hay actually bought by the successful bidder was less than the purchaser thought he was buying. According to the testimony, the audience was told by Darnell that "what you seen is what you are buying."

The defendant was the high bidder in the amount of $3850 on hay which was stored in a barn near the auctioneer's tent. The evidence showed that this barn contained, at the most, 4500 bales. Defendant also bought six head of cattle for a total of $1500. He then wrote a personal check to Darnell's order drawn on the Guaranty Bank and Trust Company of Fairfax, Virginia, for $5350 dated the day of the auction. Written in the margin on the face of the check, apparently by the defendant, was "auction Orange 6 head & 8,000 Hay." The check was delivered on the day of the auction and defendant was given a statement from Darnell showing that $3850 was paid for "Hay in Barn." Defendant moved the cattle and "some of the hay" from the site on that day.

Darnell, testifying for the Commonwealth, stated that on the Wednesday following the auction, defendant called him complaining that only about 2800 bales of hay were in the barn and seeking an adjustment in the price, which Darnell refused. On the following Friday, January 17, 1975, defendant orally ordered Guaranty Bank to stop payment on the Darnell check, ³ which was done. After learning of the stop-payment, Darnell contacted defendant who said "he liked the cows" but again complained about the quantity of hay and told Darnell "you have got to do something about the hay." Darnell again refused to make any adjustment and, when he was unable to "get any satisfaction out of (Riegert) at all", subsequently contacted an Orange County attorney who suggested that Darnell bring a civil suit to recover the amount due.

Defendant continued to remove the hay after payment was stopped on the check and eventually removed it all. Two hundred and fifty bales were sold by defendant for one dollar a bale on the day of the sale to a West Point, Virginia, contractor who attended the auction.

A civil judgment for $5350 was obtained in favor of Darnell against Riegert after a jury trial on July 18, 1975 at which Riegert appeared by counsel only. At the time of his criminal trial almost one year later, this civil judgment remained unsatisfied. Defendant testified that on July 22, 1975 he offered to satisfy the judgment by paying Darnell $5000. Darnell denied that any such offer was ever made.

The Commonwealth called as a witness William W. Duncan, who, during late 1974 and early 1975, was in charge of the bookkeeping department of the Guaranty Bank. Testifying from bank records, Duncan stated that on the day before the auction, Riegert had a balance of $510.93 in his checking account and that this balance had dropped to $286.93 by January 17, the day the bank received the stop-payment order. The records also showed that on January 14 a check drawn on the account for $460 was returned as an overdraft.

Duncan stated that during the first three weeks of January there was "some activity" in Riegert's account but that no loans were actually made to defendant. He testified, however, that Riegert was "over collateralized" with the bank, meaning that defendant had "excessive collateral on deposit with the bank for some thirty thousand odd dollars. . . ." Duncan said that it was "not inconceivable that additional monies would be made available to (defendant)", but that such additional sums were not advanced because "(a) pparently they were not requested." On cross-examination, Duncan stated that in order for additional sums to be made "available", the bank required "a formal request from either Mr. or Mrs. Riegert or both for . . . an additional loan to be made to them."

Duncan further stated that the bank made loans by allowing overdrafts. He stated that when there were insufficient funds in an account to pay a check, a branch manager or loan officer who had knowledge of the depositor's financial condition made the decision whether to pay that particular overdraft. In response to questions from the trial court, interjected during cross-examination, Duncan explained that the January 14 overdraft was not paid but was returned "for insufficient funds" because "apparently" the particular loan officer on that occasion decided not to permit the overdraft.

When asked to describe "the bank's practice with respect to stopping payment on a check where there (were) insufficient funds in the account to cover that check", Duncan testified:

"The policy of the bank in dealing with stop payment is that we will not accept a stop payment on a check if the balance of the account is less than the amount of the check being requested that stop payment be placed on. In other words, if a check is requested to have a stop payment placed on it and the balance of the account is less than the amount of the check it's the policy of our bank that we will not accept that stop payment. . . ."

Duncan further testified that he personally issued the stop payment on the check in question and that when the order was received from Riegert,

"I had a telephone conversation with a loan officer, I cannot tell you the individual's name at this point because it's one of many, who authorized me to place a stop payment on this check which would indicate that funds were available to pay the check through the bank resources. I had that conversation with the loan officer and that loan officer authorized the stop payment."

Duncan also answered "correct" to the question: "(I)f no prior arrangements had been made to pay the check the bank would not have issued the stop payment . . . ?"

On redirect examination, when asked whether defendant was treated as a customer in a different manner in January 1975 than in February of the same year, Duncan testified that Riegert's account with the bank during those months "was always handled with the same attitude and atmosphere within the bank." He stated that if there were additional overdrafts in February, they "might not (be paid) but on the other hand they might (be paid)." Duncan then testified, when handed defendant's February bank statement, that during the month one overdraft was "apparently" paid and three others were "returned."

The defendant's evidence, a great deal of which was obviously rejected by the jury, showed the following facts. He testified that he wanted to fulfill "a dream to live on a farm some day and work the farm", so he commenced purchasing cattle and looking for a farm to buy during the Fall of 1974. Riegert, 33 years of age, bought about 50 head of cattle in October and November and intended to buy other cattle in December. In order to finance that anticipated purchase, and the purchase of hay to feed the cattle, defendant said that he, along with a friend, had arranged to borrow $11,000 from the Federal Land Bank. Introduced into evidence was a copy of a promissory note in that amount dated January 13, 1975, payable to the Warrenton Production Credit Association executed by defendant, his friend and their respective wives. ⁴ Defendant said he had applied for the loan in December after he had learned of the Carpenter auction.

Defendant further testified that because he had not obtained the loan...