Stone v. Commonwealth

• Decision Date: 25 November 1940
• Citation: 11 S.E.2d 728
• Court: Virginia Supreme Court
• Parties: STONE. v. COMMONWEALTH.

11 S.E.2d 728

STONE.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Nov. 25, 1940.

Error to Circuit Court, Wise County; George Morton, Judge.

Junior Stone was convicted of grand larceny, and he brings error.

Reversed and remanded.

Argued before CAMPBELL, C. J., and HOLT, HUDGINGS, GREGORY, BROWNTNG, SPRATLEY, and EGGLESTON, JJ.

A. N. Kilgore, of Wise, and George L. Taylor, of Big Stone Gap, for plaintiff in error.

Abram P. Staples, Atty. Gen., and Joseph L. Kelly, Jr., Asst. Atty. Gen., for the Commonwealth.

CAMPBELL, Chief Justice.

This writ of error brings under review a judgment of the Circuit Court of Wise county, sentencing Junior Stone to confinement in the penitentiary for a term of one year, in accordance with the verdict of a jury finding him guilty of grand larceny.

The indictment upon which the accused was tried and convicted charged him and one Gilmer Shupe, jointly, with the felonious taking from the person of one A. P. Green, the sum of $26.

The indictment contained two counts, reading as follows:

"The Grand Jurors of the Commonwealth of Virginia, in and for the body of said County of Wise and now attending said Court at its July term, in the year, 1939, upon their oaths, do present that Junior Stone and Gilmer Shupe, on the * * * day of June, 1939, within one year next prior to the finding of this indictment, in the said County of Wise, in and upon one A. P. Greene, feloniously did make an assault, and him, the said A. P. Greene, feloniously did strike, beat and assault, and him the said A. P. Greene, in bodily fear feloniously did put, and $26.00, of the goods and chattels, money and property of the said A. P. Greene, from the person, and against the will of the said A. P. Greene, then and there, to-wit:

"On the day and year aforesaid, in the county aforesaid, feloniously and violently did take, steal and carry away, against the Peace and Dignity of the Commonwealth.

"Second Count.

"And the Grand Jurors aforesaid upon their oaths aforesaid do further present that the said Junior Stone and Gilmer Shupe, on the * * * day of June, 1939, in the said County of Wise, did unlawfully and feloniously, take, steal and carry away from the person of one A. P. Greene, $26.00 in lawful currency of the United States, of the value of $26.00, of the property of A. P. Greene.

"Against the peace and dignity of the Commonwealth of Virginia."

Upon their arraignment, accused elected to be tried separately, and the jury found Stone guilty under the second count of the indictment.

It is assigned as error that the trial court refused to set aside the verdict of the jury because it was contrary to the law and the evidence.

The accused, a young man twenty-two years of age, is the son of A. E. Stone, store manager of the Peerless Coal Company, and bore a good reputation as to character, and so far as the record shows, was a law-abiding citizen. A. P. Green, the alleged victim of the robbery, was a neighbor and acquaintance of the Stone family, and lived in Glamorgan, Virginia.

On Saturday, June 24, 1939, Stone and Gilmer Shupe visited the town of Norton and spent the afternoon sauntering around the streets, visiting the movies, and together with two other young men, consuming a pint of whiskey purchased from the A. B. C. store in Norton. Shupe had with him $2.25, and Stone had $5.

A. P. Green and his eighteen year old brother were also visitors to Norton on that day and spent the afternoon sauntering around the town, partaking of refreshments in a restaurant, visiting the movies and drinking whiskey. Green, who had primarily visited Norton to bargain for a second hand automobile, had on his person the sum of $31. Sometime in the evening, Stone, Shupe and the two Greens met in a restaurant and in response to the request of Stone and Shupe, who said they were "broke" Green purchased a pint of whiskey and gave it to Stone.

It is not shown how much liquor Green had consumed during the day, but it is conceded that he was "somewhat intoxicated", as were Stone and Shupe.

Someone suggested that all of them go to a dance at the nearby C. C. C. camp. Green's brother decided to go home, and in the presence of Shupe and Stone, Green gave him one dollar from a roll of bills. At approximately nine o'clock at night, Stone, Shupe and Green left for the dance at the camp.

Green's account of the alleged robbery is as follows:

"Q. Tell what happened. A. After we went over there to the railroad track, I got a shove in the back and fell and caught on this hand and leg (right hand and leg).

"Q. Who was behind? A. Gilmer Shupe and Junior Stone was in front.

"Q. What happened then? A. I had the money in this pocket and my hand in the pocket when I fell; my hand come out and someone struck me there (witness indicates right hand) and I put my hand up and dropped the pocket book, and Shupe picked the pocket book up, and Junior looked back and they went on, and about that time a negro man stepped up and said, 'What happened?' and I said, 'These boys got my money.'"

The further evidence of Green is to the effect that from the scene of the alleged robbery he went to the "shack" of a negro nightwatchman in the employ of the railway company and spent the night; that he did not notify the police that he had been robbed; that Sunday morning he went to the Virginia Hotel and saw Stone and asked him "something about the money", and that Stone said he "never got the money"; that he stayed in the hotel room of a man named Gilliam until evening, when he went to a dance hall, and from there to the home of his grandfather, where he spent the night; that during the day he drank some beer; that on the following Monday, a warrant of arrest was issued for Shupe and Stone.

The accused testified, in substance, that three months prior to the alleged offense, he was employed as a truck driver in the City of Staunton; that he gave up this job and returned to Wise county; that for three months he was unemployed, but thathe was insured under the Social Security Act and received the sum of $15 per week as unemployment insurance; that from time to time his father gave him money; that on the day of the alleged robbery he accompanied Gilmer Shupe to Norton, Virginia; that he had with him the sum of $5; that during his stay in Norton he visited a moving picture theater, ate lunch at a restaurant, and with three others, contributed to the purchase of a pint of whiskey costing sixty-five cents, a portion of which he consumed; that late in the evening, he and Shupe met Green; that Green had half a pint of whiskey which the three consumed; that Green purchased a pint of whiskey, and after taking a drink, gave the bottle to him; that he did not recall telling Green he was "broke", and if he did so, he was merely joking; that he saw Green with some money; that, in company with Green and Shupe, he proceeded to the dance at the C. C. C. camp; that on the way, he met a negro man named Goode, who had worked for his father and that they proceeded ahead of Green and Shupe; that he went to the dance and stayed at the camp until approximately twelve o'clock, when he and Shupe went to the hotel; that Shupe only stayed at the hotel a short time; that he paid fifty cents for a room; that he did not see Shupe again until...