Simmons v. Com.

• Decision Date: 22 April 1968
• Parties: Howard Stuart SIMMONS v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

Page 569

160 S.E.2d 569

208 Va. 778

Howard Stuart SIMMONS v. COMMONWEALTH of Virginia.

Supreme Court of Appeals of Virginia.

April 22, 1968.

J. L. Tompkins, Hillsville, for plaintiff in error.

A. R. Woodroof, Asst. Atty. Gen., (Robert Y. Button, Atty. Gen., on brief), for defendant in error.

Before EGGLESTON, C.J., and BUCHANAN, SNEAD, I'ANSON, CARRICO, GORDON and HARRISON, JJ.

CARRICO, Justice.

Howard Stuart Simmons, the defendant, was indicted along with Early J. Burnett and Gerald R. Martin for the unlawful and felonious burning of a bridge belonging to the Norfolk & Western Railway Company. (Code, § 18.1--81.) The defendant elected to be tried separately. Upon his trial before a jury, he was convicted, and his punishment was fixed at three years in the penitentiary. He was awarded a writ of error to the final judgment confirming the conviction and imposing the sentence.

The sole question to be decided is whether the evidence was sufficient to sustain the defendant's conviction.

The evidence shows that the fire in question occurred at approximately 6:30 p.m. on November 7, 1966, at Bridge 1521 of the Norfolk & Western Railway Company. The bridge was located at a point where the railway company's line overpassed State Route 639 near Ivanhoe in Wythe County. The bridge, supported by large creosoted wooden piers, was extensively damaged by the fire.

The railway's line runs north and south in the area of the bridge. Ivanhoe Station is located on the west side of the railroad, north of the bridge. Highway 94 parallels the line on its west side. The village of Ivanhoe is located farther to the west, approximately 1/2 mile from the line.

State Route 639 leads from the village of Ivanhoe in an easterly direction, intersects Highway 94, continues under the bridge, then curves to the south and roughly parallels the railroad for about 3/4 mile to a point where the road curves to the west, underpasses the railroad at a trestle, and again intersects Highway 94.

Near the foot of Bridge 1521 and adjacent to Route 639, there was located a dump used by residents of the area for dumping and burning trash. 'A lot of trash' was 'burnt in the vicinity of this bridge.' A space 75 to 100 feet wide had been cleared between the foot of the bridge and the dump after an earlier fire at the bridge.

On the date in question, Burnett, Martin, and the defendant traveled in the latter's automobile from their homes in Grayson County to go hunting near Ivanhoe. After they finished hunting, the trio purchased two bottles of wine at 'the wine joint' in Ivanhoe and drove to the dump at the railroad bridge 'to take a drink.' At the dump, they alighted from the vehicle. Martin 'shot two rats with a shotgun,' and they 'all took a drink.'

Several persons visited the dump and saw the defendant and his companions there. Clyde Hyatt was the only one of those visiting the dump to give any testimony of importance. He arrived in his truck at approximately 6:15 p.m. with a barrel of trash and saw a car sitting about 100 feet from the bridge, occupied by three men. He turned his truck around; its lights 'blinded' the occupants of the car, and 'they turned their heads.' He recognized the defendant and Burnett, with whom he was acquainted, as two of the occupants of the car.

As soon as Hyatt pulled into the dump, the defendant started his vehicle and turned on his lights. The car left the dump, traveling under the bridge in a westerly direction toward Ivanhoe.

While he was there, Hyatt observed smoke rising from the dump about 150 feet from the bridge. He also observed some cardboard boxes stacked in two piles between a set of the wooden piers supporting the bridge, but saw no fire around the bridge.

Hyatt was at the dump 'not over a minute' before he left. He drove to a service station in Ivanhoe, and within five to ten minutes heard the fire alarm. He went to the firehouse and inquired as to the location of the fire. He was told it was at the railroad bridge, and he went there and found the bridge burning 'all the way cross.' The 'heaviest part of the burning' was located where Hyatt had observed the piles of cardboard boxes stacked between the piers.

The defendant and his companions were next observed between 6:30 and 7:00 p.m. by Howard Alley, who lived on Route 639, 3/4 mile southeast of Bridge 1521. Alley, accompanied by his family, was backing his automobile out of his driveway when he saw a vehicle approaching from the direction of the bridge. He permitted the vehicle to pass, and it 'went on up the road pretty fast.' Alley proceeded up the road in the direction taken by the other vehicle. At about that time, his daughter said, 'There is a big fire down there'; and Alley looked and saw that the railroad bridge was on fire.

After traveling a short distance, Alley observed the other vehicle parked on a side road. As he passed, the occupants turned their heads; and one of them 'kind of pulled his coat up over his face.' Alley turned around and went back and secured the license number of the vehicle. He then went to his own driveway and turned around. When he again reached the side road, the vehicle was gone.

Alley informed the police of the license number he had secured, and it turned out to be the number assigned to the defendant's vehicle.

The defendant reached his home, located 10 to 12 miles from the scene of the fire, between 7:15 and 7:30 p.m. He 'ate something,' watched television for awhile, and went to bed.

At approximately 11 p.m., a deputy fire marshal arrived at the home of the defendant and asked to see him. The marshal found the defendant in bed and tried to talk to him, but 'he was not coherent' and 'had a strong odor of alcohol about his breath.'

The next morning, the deputy fire marshal talked to the defendant. The latter denied that he had been at the dump the evening before, and stated that he had not been nearer the burned bridge than 'a bootlegger's joint,' located 1 1/2 to 2 miles south of the bridge.

The defendant was arrested on December 7, 1966, one month after the fire occurred. On the day following his arrest and after he had been released on bail, he went to the home of Clyde Hyatt and asked him what he knew about the fire. When Hyatt said he 'didn't know...