Stegall v. Com.

• Decision Date: 22 April 1968
• Citation: 208 Va. 719,160 S.E.2d 566
• Court: Virginia Supreme Court
• Parties: James F. STEGALL v. COMMONWEALTH of Virginia.

Page 566

160 S.E.2d 566

208 Va. 719

James F. STEGALL v. COMMONWEALTH of Virginia.

Supreme Court of Appeals of Virginia.

April 22, 1968.

George H. Fralin, Jr., Lynchburg, for plaintiff in error.

Charles Shepherd Cox, Jr., 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.

I'ANSON, Justice.

Defendant, James S. Stegall, was indicted for unlawfully and feloniously stealing and carrying away a 1966 Chevrolet Impala automobile of the value of $3,000. Upon the request of defendant's counsel, the attorney for the Commonwealth filed a notice with the court stating that it would rely on § 18.1--109, ¹ Code of 1950, as amended, 1960 Repl.Vol., in the prosecution of the case. Defendant pleaded not guilty, waived trial by jury, was found guilty as charged in the indictment, and was sentenced to two years in the State penitentiary. We granted defendant a writ of error.

The defendant contends that the evidence was insufficient to support the conviction, and that the Corporation Court of the City of Lynchburg lacked venue to try the case.

The Commonwealth's evidence shows that on the night of December 18, 1965, defendant and a companion went to the Thomas & Stephens Gulf Station in the city of Lynchburg, Virginia, agent for Avis Rent-A-Car Company, to rent an automobile. Defendant made a deposit of $25 and signed a contract in which he agreed to rent the car for two days and to return it to the Thomas & Stephens Gulf Station on or before the expiration of the rental period. The car was not returned in accordance with the rental agreement and it was later found abandoned in Nashville, Tennessee.

It appears from the record that defendant was arrested in the State of Michigan about seven months after the alleged offense was committed.

Defendant testified that he was employed by Jerome Kay and that they were in Lynchburg working on a show promotion project. He rented the Avis car at Kay's request and Kay furnished the deposit money for the rental. Defendant signed the rental contract and drove the car away from the rental station. After first going by their hotel room, defendant and Kay drove over to Roanoke around 8:30 that night. Defendant first testified that he got out of the car in Roanoke and has not seen it since. Later he said that after eating at 'some little restaurant' in Roanoke he granted Kay permission to use the car for a few minutes. When Kay did not return within a reasonable time with the car he decided to hitchhike back to Lynchburg. He spent the night at his hotel and the next morning, December 19, 1967, he checked out and left the State. He has not seen or heard from Kay since he last saw him in Roanoke. When he left Lynchburg, Kay's belongings were still in his hotel room.

Defendant said that he did not think anything was wrong when Kay failed to return to the restaurant to pick him up. He did not report to the Avis agent what had happened to the car because it did not have to be returned until the following day and he was sure Kay would return it in accordance with the terms of the rental agreement.

Defendant first contends that the evidence was insufficient to support his conviction. He argues that his uncontradicted testimony explaining why he did not return the leased automobile to its rightful owner shows that he did not wrongfully and fraudulently convert the automobile to his own use, and that his testimony should have been accepted by the trial court.

When the sufficiency of the evidence is assailed, it is our duty to look to the evidence which tends to support the judgment of the trial court and permit it to stand unless it is plainly wrong. Snyder v. Commonwealth, 202 Va. 1009, 1016, 121 S.E.2d 452, 457 (1961); Ingram v. Commonwealth, 192 Va. 794, 803, 66 S.E.2d 846, 850 (1951). The judgment of a trial judge based on evidence heard ore tenus has the same weight as the verdict of a jury. Pierce v. Commonwealth, 205 Va. 528, 534, 138 S.E.2d 28, 31 (1964); 1B Mich.Jur., Appeal and Error, §§ 278--280, pp. 406--414.

The precise legal question presented here as to whether the failure of one hiring a motor vehicle to return it as agreed constitutes embezzlement under Code § 18.1--109 has not been before this court for decision. In other jurisdictions, however, the courts have held that if one rents an automobile which he agrees to return to its lawful owner pursuant to the terms of the rental agreement and later forms an intent to convert it to his own use, he is guilty of embezzlement. Chapman v. State, 90 Okl.Cr. 224, 212 P.2d 485 (1949); State v. Russell, 265 S.W.2d 379, 45 A.L.R.2d 617, 620, 621 (Mo.1954); Annot., 'Embezzlement--Hired Vehicle,' 45 A.L.R.2d 623.

In 29A C.J.S. Embezzlement § 11, pp. 27, 28, it is said:

'The mere failure to return property or account for a trust fund, while evidence of a conversion, does not necessarily constitute embezzlement, But failure to perform an absolute duty to return the property or refusal to account or pay over on demand Constitutes embezzlement, or is, at least, evidence from which a fraudulent conversion may be inferred.

'There is no settled mode by which a fraudulent conversion or appropriation must take place, and the means by which it is accomplished are immaterial. It may be effected by any exercise of the right of ownership inconsistent with the owner's rights, and with the nature and purposes of the trust.' (Italics supplied.)

Ordinarily, uncontradicted evidence should be accepted as true and cannot be wholly discredited or disregarded if not opposed to probabilities, even though the witness is an interested party. Uncontradicted evidence is not, however, necessarily binding on the court or the jury. It may be disbelieved where it is inherently improbable, inconsistent with circumstances in evidence, or somewhat contradictory in itself, especially where the witness is a party or is interested. Neither courts nor juries are required to believe that which they know...