Tasker v. Com.

• Decision Date: 08 September 1961
• Docket Number: No. 5270,5270
• Citation: 202 Va. 1019,121 S.E.2d 459
• Parties: EWELL GRANT TASKER v. COMMONWEALTH OF VIRGINIA. Record
• Court: Virginia Supreme Court

Page 459

121 S.E.2d 459

202 Va. 1019

EWELL GRANT TASKER v. COMMONWEALTH OF VIRGINIA.

Record No. 5270.

Supreme Court of Appeals of Virginia

September 8, 1961.

T. W. Messick; Harvey S. Lutins (Morton Honeyman, on brief), for the plaintiff in error.

M. Harris Parker, Assistant Attorney General (A. S. Harrison, Jr., Attorney General, on brief), for the Commonwealth.

JUDGE: CARRICO

CARRICO, J., delivered the opinion of the court.

This is a companion case to Snyder v. Commonwealth, Record No. 5243, this day decided.

Ewell Grant Tasker, herein referred to as the defendant, was charged in a joint indictment returned against the defendant, John F. Snyder, Jr., and E. W. Brizendine, with the grand larceny of a diamond ring, the property of Edward E. Foster. The defendant was tried separately and on July 14, 1960, a jury found him guilty of the charge and fixed his punishment at two years in the penitentiary. He was sentenced accordingly.

The defendant sought, and was granted, a writ of error, which calls for determination of the following questions:

1. Whether the trial court erred in refusing to require the Commonwealth to furnish the defendant a bill of particulars.

2. Whether the trial court erred in denying the defendant the right to cross-examine June Fuller Perrow for the purpose of discrediting her testimony.

3. Whether the evidence was sufficient to sustain the conviction of the defendant.

4. Whether the trial court erred in its rulings in granting and refusing instructions.

The evidence presented to the jury in the instant case varies in some respects from the evidence presented in the Snyder case (Record No. 5243) and will therefore have to be here set out.

Edward E. Foster, the complaining witness, was the owner and sole operator of a small jewelry store on Williamson Road, in the city of Roanoke.

On February 26, 1960, the defendant and Snyder went to Foster's store, at approximately two-thirty o'clock, P.M. Snyder had visited the store three to five weeks prior to that date.

Upon entering the store, the defendant and Snyder informed Foster that they were interested in a watch. Foster showed them two watches, which they examined and discussed.

While the defendant and Snyder were examining the watches, Brizendine entered the store. Foster spoke to him and said 'I'll be with you in a minute.' Snyder then said to Foster, 'Go ahead and wait on him, we're in no hurry.'

Foster then turned to Brizendine and inquired if he could wait on him. Brizendine stood in front of the diamond ring showcase, three or four feet away from the defendant and Snyder, and said he was interested in a set of rings for his wife. Foster removed a tray of rings from the showcase to display to Brizendine. The tray contained twelve slots to hold the rings in place, and before displaying the tray to Brizendine, Foster checked and found that each slot was occupied by a ring.

One of the rings in this tray was the one later alleged to have been stolen. It was described as having a solitaire diamond setting, containing 97 points, considered one carat, in a white gold, lady's Columbia true fit mounting, a distinctive patented device designed to prevent the ring from turning on the finger of the wearer. Foster was the only jewelry merchant in the city of Roanoke handling such a mounting. The ring was the largest Foster had; he had paid $525.00 for it, and it bore a tag showing its sale price to be $1,500.00.

Brizendine examined a number of rings from this tray and from another tray displayed later by Foster.

While Brizendine was examining the rings, Snyder asked Foster a question about the price of one of the watches that the defendant and Snyder were examining. Foster turned around and answered Snyder, who then said that he was just looking and that he would be back later. The defendant and Snyder thereupon left the store.

Foster then returned his attention to Brizendine, who said that he had selected a set of rings, which he handed to Foster. Brizendine told Foster that he wanted to talk to his wife and that he would be back in a couple of hours. He then left the store, within one to three minutes of the time that the defendant and Snyder had left.

Foster immediately discovered that the Columbia-mounted diamond ring was missing. He notified the police department of his loss, and furnished the police a description of Brizendine and of the missing ring.

Brizendine, shortly after leaving Foster's store, appeared at the shop of Joel Krisch, a pawn broker who had dealt in precious stones for fifteen years and who was well acquainted with Brizendine. Brizendine exhibited to Krisch a one carat diamond ring, in a Columbia true fit mounting, and asked Krisch what he would give for the ring. Krisch told Brizendine the ring was worth $300.00, whereupon Brizendine became insulted and left the shop. In a short time, Krisch received a telephone call from the police concerning the ring stolen from Foster, and Krisch told the police that Brizendine had been in his shop with the ring.

Later in the afternoon of February 26, the defendant, Snyder and Brizendine went to the home of June Fuller Perrow, in the city of Roanoke, in Snyder's automobile. June Perrow had known Brizendine for five and one-half years, Snyder for a few years, and the defendant for seven or eight years.

June Perrow entered the automobile and rode with the three men. In the conversation during the ride, Brizendine told June Perrow that he had tried to sell a ring to Joel Krisch for $300.00, to which the defendant said, 'I know where I can sell it for $600.00.' The defendant pulled a ring out of his vest pocket and showed it to June Perrow. She described it as 'a large white lady's diamond and it looked like something was on the back, a spring or something.' The defendant returned the ring to his pocket. He told June Perrow the ring had come from Mr. Foster's.

Brizendine and June Perrow left the automobile at a diner. The defendant and Snyder departed, saying they were going to sell the ring for $600.00. They were gone for approximately one-half hour, and when they returned the defendant told Brizendine and June Perrow that, 'the man didn't have the money but would give it to him Saturday morning.'

The defendant did not testify and did not present any evidence, except testimony tending to discredit June Perrow.

The missing ring has never been recovered. Brizendine was convicted of the theft of the ring, and is now serving a sentence in the penitentiary. Snyder, like the defendant, was convicted as an aider and abettor in the theft.

The defendant first contends that the trial court erred in refusing to require the Commonwealth to furnish him a bill of particulars.

The indictment upon which the defendant was tried was returned by the grand jury on June 6, 1960. The trial of the defendant took place on July 14, 1960, more than five weeks after the indictment.

On the morning of the trial, after the jury had been chosen and sworn, and after the witnesses had been sworn, the defendant's counsel asked the trial judge to retire to chambers. There for the first time, the court was asked to require the Commonwealth to furnish a bill of particulars stating whether the defendant was to be tried as a principal in the first degree or as a principal in the second degree. The trial judge refused this request, pointing out that it should have been made before the jury was sworn.

Two sound reasons support the ruling of the trial court in refusing the request for a bill of particulars.

First, as was said in the case of Livingston v. Commonwealth, 184 Va. 830, 837, 36 S.E.2d, 561, 565, 'The function of the bill of particulars is to supply additional information concerning an accusation. The decisive consideration in each case is whether the matter claimed to be left out of the indictment has resulted in depriving an accused of a substantial right and subjects him to the danger of being tried upon a charge for which he has not been indicted.'

Under Code § 18.1-11, principals in the second degree may be indicted, tried, convicted and punished in all respects as if a principal in the first degree.

The indictment against the defendant charged that he 'unlawfully and feloniously did steal, take and carry away' the ring belonging to Foster. The jury found him 'guilty as charged in the indictment.'

Thus, the charge against the defendant, either as a principal in the first degree or as a principal in the second degree, was fully and completely set forth in the indictment and he was found guilty of that charge and none other. There was no matter 'claimed to be left out,' the defendant was not deprived of a substantial right, and he could not have been subjected to 'the danger of being tried upon a charge for which he had not been indicted.' The defendant concedes that the indictment was in proper form. He was not entitled to any more specific information concerning the crime with which he was charged. Livingston v. Commonwealth, supra.

Second, we have previously held that a bill of particulars should be allowed in a criminal case, if the indictment does not fully charge the offense, to enable a defendant to prepare his defense properly. Pine v. Commonwealth, 121 Va. 812, 836, 93 S.E. 652, 659.

It cannot be said that a defendant needs additional information to prepare his defense where, as in the case before us, he waits until after the jury is sworn for his trial to make his motion for such information. His request then comes too late.

Defendant's next contention relates to the refusal of the trial court to permit defense counsel to cross-examine June Fuller Perrow, a Commonwealth witness, as to whether or not she had ever been convicted of the offense of contributing to the delinquency of a minor.

We have long recognized the right of a party to cross-examine a witness concerning the latter's prior conviction of a misdemeanor involving moral turpitude as a means to...