West v. Commonwealth

• Decision Date: 12 June 1919
• Citation: 99 S.E. 654
• Parties: WEST v. COMMONWEALTH.
• Court: Virginia Supreme Court

99 S.E. 654

WEST

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

June 12, 1919.

Error to Hustings Court of Petersburg.

Frances West was convicted of grand larceny, and she brings error. Affirmed.

H. M. Smith, Jr., of Richmond, and Gilliam & Gilliam, of Petersburg, for plaintiff in error.

The Attorney General, for the Commonwealth.

KELLY, J. Frances West obtained this writ of error to a judgment sentencing her to a term of three years in the penitentiary for grand larceny.

1. The indictment charged that the crime was committed in the city of Petersburg, and the first assignment of error is that there was no proof of this fact.

Unquestionably the commonwealth was as much bound to prove the venue as to prove the larceny itself. Fitch's Case, 92 Va. 824, 24 S. E. 272; Anderson's Case, 100 Va. 864, 42 S. E. 865; Byrd's Case, 124 Va. ——, 98 S. E. 032. The evidence to prove it, however, may be either direct or circumstantial. in Richardson's Case, 80 Va. 124, this court apparently approved the rule that—

"If the evidence raises a violent presumption that the offense was committed in the county mentioned in the indictment, it will be sufficient."

In Byrd's Case, supra, we said:

"The failure clearly to prove venue is usually due to inadvertence, flowing naturally from the familiarity of court, counsel, witnesses, and jurors with the locality of the crime, and appellate courts will generally and properly layhold of and accept as sufficient any evidence in the case, direct or otherwise, from which the fact may be inferred."

See, also, 1 Whart. Cr. Ev. (10th Ed.) § 108; 12 Cyc. 484, and cases cited in note 5; State v. Hobbs, 37 W. Va. 812, 816, 17 S. E. 380, and authorities cited.

In the case at bar there is no direct proof that the crime was committed at Petersburg, but the following circumstances fully warrant the inference that it did take place there: The indictment charged that the property was stolen in the city of Petersburg, and belonged either to E. A. Robertson or to his wife. The case was tried at Petersburg, and the witness Worrell testified that he was employed as a detective with "the local police* force, " went with Wilkerson, another police officer, to investigate the case, found the stolen property at the prisoner's home, then went to the home of Mrs. Robertson, and brought her to the prisoner's home to identify the property. Wilkerson testified:

"That he was employed as a detective with the local police department, and went to see Mrs. E. A. Robertson in response to a telephone call from her advising him that certain articles were missing from her home, and went with Officer Worrell to the home of Frances West and found the alleged stolen articles there; that he remained at her home while Officer Worrell went to get Mrs. Robertson to identify the various stolen articles."

O. E. Perkinson testified:

"That he was employed as a detective with the local police department, and assisted in the investigation of the West case."

E. A. Robertson and wife testified that the property was stolen from their home on Sycamore street. It thus appeared that Mrs. Robertson, from her home on Sycamore street, where the offense was committed, called in the "local police officers, " who proceeded to make an investigation and arrest, Which resulted in the indictment and trial of the accused in Petersburg. The "local police officers" were unquestionably Peters? burg officers, and there is small room for doubt that Mrs. Robertson telephoned to them, and that they responded to her call, because her residence was in the city and therefore within their jurisdiction.

The case of State v. Hobbs, supra, is very much in point. There the proof was that the homicide had been committed at the house of the prisoner, Hobbs; but no witness said that this house was within the limits of Pleasants county, as averred in the indictment. It did appear, however, that the county coroner was notified that there was a dead body "within the county" (the name of the county not being given), and that he proceeded to the Hobbs house and held an in quest over the body. This was the principal circumstance upon which the commonwealth relied to support its contention that the venue had been sufficiently proved, and the court sustained the contention.

It seldom happens that there is any real merit in an exception based upon a failure to prove venue, unless the question has been developed and made the subject of serious inquiry before verdict. Criminals are supposed to be, and usually are, indicted where they have committed the crime. The necesity of proving the locality is known to practically every tyro in the criminal practice. The record in this case shows that the court, counsel, jurors, and witnesses must necessarily have been familiar with the location of the Robertson home on Sycamore street. No question was raised or hinted at as to the local jurisdiction of the court, until after the verdict was rendered. A motion was then made for a new trial on the ground that the venue had not been proved, and this motion was promptly overruled by a local judge of known experience and ability.

The action of the court in overruling the motion, based on the view that the venue had been sufficiently established, comes to us, not only with the usual presumption favoring the correctness of the judgment of a trial court, but upon the facts and circumstances appearing in the evidence and detailed above, which of themselves raise a violent presumption that the Robertson house was within the local jurisdiction of the court, and we do not feel warranted in reversing the judgment upon this point.

2. In disposing of the second assignment of error, it will be in order to set out somewhat in detail the pertinent facts in connection with the crime itself. The indictment charged the larceny by Frances West of various articles of wearing apparel and table ware of the aggregate value of $286. The accused had been employed as cook and house girl in the Robertson home for several months. Shortly after the larceny is supposed to have been committed, she became ill, went to a hospital for treatment, and thereafter did not return to her former position. About that time Mrs. Robertson began to miss dishes and other small articles, and, becoming suspicious on that account, she opened what she called her "treasure trunk, " which she kept in the kitchen, and in which she had stored the most valuable of the stolen property. The contents of this trunk had disappeared. A search was made, and they were found in the possession of the accused. Her explanation was unsatisfactory in itself, and was contradicted by Mrs. Robertson. The evidence is conflicting as to actual value of the property stolen, but it was quite sufficient on the part of the commonwealth to establish the value of more than $50, the amount necessary to constitute grand larceny. This is true as to the contents ofthe "treasure trunk" alone, regardless of what the other articles were worth.

A short time before the accused gave up her position in the house, Mrs. Robertson was away from home on a visit of about...