Toler v. Commonwealth

• Decision Date: 10 January 1949
• Citation: 188 Va. 774,51 S.E.2d. 210
• Court: Virginia Supreme Court
• Parties: TOLER. v. COMMONWEALTH.

51 S.E.2d. 210

188 Va. 774

TOLER.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Jan. 10, 1949.

Error to Corporation Court of Lynchburg; S. DuVal Martin, Judge.

Charles Toler, Jr., was convicted of unlawfully and feloniously stealing a billfold of the value of $5 and lawful money of the United States of the value of $17, and he brings error.

Judgment affirmed.

Before HUDGINS, C. J., and GREGORY, SPRATLEY, BUCHANAN, STAPLES, and MILLER, JJ.

M. H. Hester and A. S. Hester, both of Lynchburg, for plaintiff in error.

J. Lindsay Almond, Jr., Atty. Gen., and Ballard Baker, Sp. Asst. to Atty. Gen., for the Commonwealth.

SPRATLEY, Justice.

At the May term, 1948, of the Corporation Court of the City of Lynchburg, the defendant, Charles Toler, Jr., was indicted for "unlawfully and feloniously" stealing on the 12th day of April, 1948, a billfold of the value of $5 and lawful money of the United States of America of the value of $17. The indictment further alleged that the defendant had been before sentenced for like offenses of petit larceny,---first in the Municipal Court of the said city on July 10, 1947, and, second, in the Corporation Court of the said city on November 3, 1947.

The defendant pleaded not guilty to the indictment. Upon the trial of that issue, the jury returned a verdict finding him guilty and fixed his punishment at two years in the penitentiary.

A motion to set aside the verdict on the ground that it was "contrary to the law and the evidence, " was overruled, and judgment was pronounced in accordance with the verdict. We granted a writ of error and supersedeas.

The defendant contends that the evidence, wholly circumstantial, was insufficient to show that he was guilty of the larceny charged as of April 12, 1948, beyond all reasonable doubt. He argues that although the theft of the property may have been shown, there was nothing to connect the defendant with the crime, except mere conjecture or suspicion.

The evidence, certified to us in narrative form, was substantially as follows:

Witnesses on behalf of the Commonwealth testified that the defendant had been tried, convicted, and sentenced for petit larceny in the Municipal Court of the city of Lynchburg, Virginia, on July 10, 1947, and had been again tried, convicted, and sentenced for another offense of petit larceny in the Corporation Court of the same city on November 3, 1947. The defendant offered nothing in denial or contradiction thereof. The facts of his former sentences were fully established.

The remaining evidence related to the charge of petit larceny as of April 12, 1948.

On Monday, April 12, 1948, at about 1:30 p. m., Mrs. Ossie Wingfield returned from her lunch to the offices of Drs. Barks-dale, Pugh and Haynesworth, her employers, on the ninth floor of the Allied Arts Building in Lynchburg. She put her pocketbook in a closet in the second room tothe south of the reception office and across the hall from the elevator serving the building. She then left the room, leaving its door to the hall unlocked. In her pocket-book were a billfold containing a ten-dollar bill, a five-dollar bill, two one-dollar bills, and some small change. The closet in which it was left was about thirty feet distant from the elevator. Mrs. Wingfield returned to the room in which she left her pocketbook in about thirty minutes, --that is, about 2:00 p. m. She then found her pocketbook on a table in the room, with her billfold, money and keys gone.

At about 2:00 p. m. of the same day, Mrs. Eleanor Elder, a receptionist employed in the offices where Mrs. Wingfield worked, while sitting at her desk directly across the hall from the elevator, saw a colored youth standing at the elevator entrance waiting to enter it. She could only see the left side of his face, but noticed that he had on a maroon shirt, and that "his hair stood up in front." The elevator came up and she saw him get on it. Immediately after this Mrs. Wingfield told her that someone had stolen her pocket-book and money.

Thelma Thornbill, a colored girl who operated the elevator, testified that at about 2:00 o'clock p. m., on the day in question as she was proceeding upward with the elevator, she noticed a colored boy standing in front of its opening on the ninth floor waiting to go down; that she stopped the elevator and the boy got in and went with the elevator to the top floor and then came down with her and got out on the ground floor; that she had never seen him before, but she observed he had on a wine-colored shirt; and that immediately after he left, Mrs. Wingfield told her about the loss of her property.

Both of these witnesses said that, although the room in which the pocketbook was left opened on a hall open to the public, they did not see any person enter or leave that room during the absence of Mrs. Wingfield between 1:30 and 2:00 o'clock p. m.

The police authorities were notified and two police officers came to the ninth floor of the Allied Arts Building to investigate.

Mrs. Elder and Thelma Thornhill both described to the police officers the man they saw on the ninth floor of their building about 2:00 p. m. The police officers left and in about two hours returned to the building bringing the defendant with them. Mrs. Elder identified him as the same person she had seen waiting for the elevator. Thelma Thornhill positively identified him as the person described by her, and whom she had carried on the elevator from the ninth floor.

J. E. Franklin, a police officer, testified that he and a fellow officer received information of the loss of Mrs. Wingfield's money about eight minutes after 2:00 o'clock p. m. on April 12th; that upon receiving from Mrs. Elder and Thelma Thornhill the description of a young colored man they had seen at the elevator at 2:00 o'clock p. m., they started looking for a person answering that description; that about an hour and a half later they found the defendant in a pool room sitting in a chair and wearing the character of shirt described; that they searched him and found two one-dollar bills and eighty cents in change in his trousers pocket, a ten-dollar bill and a five-dollar bill in his shirt pocket buttoned up; and that the defendant said it was part of the money that he had received that morning, April 12th, from his father and a brother-in-law, but he could not say how much each gave him. The defendant further told the officers that he had not been in the Allied Arts Building during that day, and disclaimed any knowledge of the loss of the billfold, the money, or the keys of Mrs. Wingfield.

The father, the stepmother, and a brother-in-law of the defendant testified that the defendant was at his father's house from about fifteen minutes to two o'clock to half-past two o'clock on the afternoon of April 12, 1948. The father said that he had paid the defendant $18 on the evening of April 10, 1948, for assisting him in his janitorial work, and that the brother-in-law of the defendant gave $5 to the latter on the same day.

The defendant, a young colored man nineteen years of age, testified that he was not in the Allied Arts Building on April 12, 1948, at any time. He said that he was asleep on that day when his father awakened him about 1:30 o'clock p. m.; and that he then went to his father's house a few minutes before 2:00 o'clock, changed his clothes, and left about 2:30 p. m. He said that he knew nothing about Mrs. Wingfield's money, billfold, or keys, and that he told the police officers that the money found on him was a part of $18 paid to him on Saturday, 10th of April, by his father for helping the latter in his work the week before, and that his brother-in-law gave him $5 at the same time.

It is true that the conviction of the defendant is based upon circumstantial evidence. While such evidence should be received with caution, it is legal and competent...