Stapleton v. Commonwealth

• Decision Date: 18 September 1924
• Citation: 124 S.E. 237
• Parties: STAPLETON . v. COMMONWEALTH.
• Court: Virginia Supreme Court

124 S.E. 237

STAPLETON .

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Sept. 18, 1924.

Appeal from Corporation Court of Roanoke.

H. A. Stapleton was convicted of grand larceny, and he appeals. Affirmed.

The indictment charges that the accused, H. A. Stapleton, and two others, to wit, Herman Crews and James Wilcher, at the time and place mentioned, "feloniously and burglariously did break and enter, with intent' to commit larceny, a certain dwelling house of John G. Paul [situate, etc.], and [certain jewelry, described and valued in detail, of the aggregate value of $29S], being the property and jewelry of John G. Paul, then and there situate in said dwelling house, there and then feloniously and burglariously did steal, take, and carry away, " etc.

All three of the parties indicted demurred to the indictment and moved to quash the same on the single ground that it did not allege that the dwelling house was occupied. The demurrer and motion to quash were overruled. There is no assignment of error challenging the correctness of such action of the court.

Thereafter the accused, Stapleton, elected to be tried separately, and was first and separately tried. The trial resulted in the following verdict:

"We, the jury, find the accused, H. A. Staple-ton, guilty of grand larceny, as charged in the indictment, and fix his punishment at five years in the penitentiary."

In accordance with this verdict the judgment under review was entered.

The material facts, and other matters shown by the record, may be stated as follows:

The crimes of burglary and grand larceny, charged in the indictment, were committed on the night of October 25, 1922, in the following manner:

A few hours prior to the burglary, the accused, Stapleton, according to the testimony of Wilcher, a witness for the commonwealth, told Crews and Wilcher that the Paul house "was empty: that there was nobody there, and it would be a good place to hit it, if we [they] would do it, and he [the accused] said he would take the stuff * * * to Baltimore and sell it and give us [Crews and Wilcher] half of the money." Wilcher and Crews, who was also a witness for the commonwealth, both testified, in substance, to the effect that Stapleton was not present at the commission of the burglary, Wilcher and Crews being the active participants in that affair and in the taking of the stolen goods out of the dwelling house burglarized, but that, in addition to having first incited and conspired with Wilcher and Crews, as aforesaid, thereafter, and Immediately after the burglary, and when Wilcher and Crews were on their way with the stolen property to the house of the accused, Stapleton, the latter met them. Thereupon they informed him that the burglary and theft had been successfully accomplished, and that they had then and there the stolen property. Whereupon the accused, Stapleton, went for an automobile, met these parties at another point, took them and the goods in the automobile out into the country, where Stapleton took a look at the stolen property, and Stapleton then and there received the property and took it in the automobile to his home.

It was shown by the testimony for the commonwealth, of witnesses other than Wilcher and Crews, that the stolen goods mentioned in the indictment were of the value of over $188, and that such goods, along with other stolon goods, the fruit of other burglaries and thefts by Crews and Wilcher, presently to be mentioned, were found in the possession of the accused in Baltimore, where he was arrested, on November 4, 1922, 11 days after the burglary and theft alleged in the indictment in the instant case.

Upon his arrest and being found in the possession of the stolen goods as aforesaid, the accused made the following statement to the officer who arrested him:

"That he had gotten all of this stuff from Crews and Wilcher, and that they had pawned it to him for $18, and that he had had it for two or three weeks, and that it would not payhim his money, and he brought it to Baltimore to pawn it, or sell it, or get his money; that he needed his money and wanted it, and was coming to Baltimore on business, and he brought this jewelry to pawn it, or sell it, to get his money."

He said he "had not stolen this jewelry." He said "it might have been stolen, but he did not steal it." He also stated to the same officer that he "bought it from these two boys." Another statement made by the accused to another officer, immediately following the statement just quoted, was that he bought the jewelry "from a couple of crooks named Wilcher and Crews, " and, when then asked when he got the jewelry, said he got it "yesterday."

It was also shown by the testimony for the commonwealth that, prior to the time the other stolen goods, not mentioned in the indictment, were found in the possession of the accused, Stapleton, he knew them to have been stolen; that he knew that they were the fruit of five or six burglaries or housebreakings, accompanied with larceny of goods, committed by Wilcher and Crews, all of which, except one, occurred before the burglary and larceny mentioned in said indictment, and all of which stolen goods were received by Stapleton of Wilcher and Crews promptly following their theft, and on the respective times of his receipt of such goods Stapleton was expressly informed that the goods were stolen.

There was also testimony for the commonwealth on the subject of the attempt by the accused to induce the attorney for Crews to get Crews to exonerate the accused from all complicity' in the crimes charged in the indictment, which testimony is that of such attorney, and was as follows:

"Q. After you had been employed by Mr. Crews to represent him on this charge, did Mr. Stapleton come to your office?

"A. He did.

"Q. I will ask you to state what statement, if any, he made to you with reference to this matter?

"A. I cannot recollect the day, but it was one day last week. My best judgment is that it was Wednesday, about 5 o'clock, or a little after, in the afternoon. I was getting ready to go home when Stapleton came in, and he says: 'Mr. Challice, you are in a position to do me a great favor if you will.' I says: "What is it about?' He says: 'It is about these robberies here in Itoanoke.' I says: 'Mr. Stapleton, I represent one of these boys, and our interests are conflicting, and perhaps you had better not talk to me about this thing.' He says: Well, I have got confidence in you, and do not hesitate to talk to you.' And I says: 'If you feel like you want to talk, I will listen to anything you have to say.'

"By Mr. Hunt: Q. Was he talking to you in confidence as an attorney?

"A. I told him he had better be careful how he talked; that I did not want to talk about his case; but he said he had confidence in what I was going to run for—that he knew I was going to run for commonwealth's attorney next year, and I told him I had not given it any thought.

"By the Court: Get right to the point.

"A. With reference to this conversation, he says: 'Mr. Challice, I am in for it on these robberies, and if you will get the man that you represent, Crews, to take the full responsibility for it, I will give you $200.' I very frankly told him that I considered that an insult; that I did not think my honesty could be bought for $200 or $2,000, 000, and I told him, if that was the proposition he had to make, that I did not want to talk about the case, and he says: 'You are in a position to do me lots of good. If you will just take that $200 and get Crews to assume the full responsibility for it, so that I will not have to go to the penitentiary or the reform school, I will also agree to give them $10 a week while they are down there.' And I told him that I could not consider his proposition for one moment, and would have nothing to do with it. * * * "

T"he following instruction was given at the request of the commonwealth over the objection of the accused:

"Instruction No. 3 for the Commonwealth.

"The court instructs the jury that, if property be stolen and recently thereafter be found in the exclusive possession of the prisoner, then such possession of itself affords sufficient ground for the presumption of fact that he was the thief, and in order to repel the presumption makes it incumbent on him, on being called for the purpose, to account for such possession consistently with his innocence. If he gives a reasonable account of it, then it devolves on the commonwealth to prove that such account is untrue. If he give an unreasonable account of it, then it devolves on the prisoner to sustain such account by other evidence.

'You are further instructed that the circumstances under which the prisoner is found in possession of such property, the time and place, the conduct of the accused, and his account of his possession are all matters for the consideration of the jury."

The following instructions asked for by the accused were refused:

"Defendant's Instruction A.

"The court further instructs the jury that the testimony of accomplices must be received with great care and caution, and if you believe from the evidence that either of the alleged accomplices were induced to testify falsely against the defendant, through either fear of punishment or hope of reward, you should disregard their testimony in its entirety, and in such case it would be your duty to acquit.

"Defendant's Instruction B.

"The court further instructs the jury that the fact that the defendant did not exercise the same degree of care in coming into possession of the goods as would a man of ordinary care and prudence is not a matter for your consideration, but to convict the defendant the commonwealth must show that the defendant had actual knowledge that the goods were stolen."Defendant's Instruction C.

"The court instructs the jury that, even though you may believe from the evidence that the defendant was negligent in acquiring possession of the articles described, and that if he had have been...