Williams v. Commonwealth

Citation50 S.E.2d 407, 188 Va. 583
Case DateNovember 22, 1948
CourtSupreme Court of Virginia


Error to Circuit Court, Surry County; J. Jordan Temple, Judge.

Raymond Williams was convicted of housebreaking with intent to commit larceny, and he brings error.



W. L. Devany, Jr., of Norfolk, for plaintiff in error.

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

MILLER, Justice.

Raymond Williams was indicted in the Circuit Court of Surry county for breaking and entering an outhouse with intent to commit larceny, and the larceny therefrom of fifty-two pieces of cured hog meat--hams, shoulders and sides--valued at $550. Upon his trial before a jury he was convicted and punishment fixed at five years in the penitentiary. A general verdict was returned and as only one count is contained in the indictment it constitutes conviction for the major crime charged, i. e., housebreaking with intent to commit larceny. Speers v. Commonwealth, 17 Grat. 570, 58 Va. 570; Myers v. Commonwealth, 132 Va. 746, 111 S.E. 463; Drinkard and Hicks v. Commonwealth, 163 Va. 1074, 178 S.E. 25. From a judgment confirming the verdict, this writ of error was obtained.

Petitioner relies upon several assignments of error. They may be thus stated: (1) That accused was not present when the admissibility of certain evidence was argued and ruled upon, i. e., that this was a part of the trial in this absence; (2) the venue of the crime was not proved to be in Surry county; (3) the evidence failed to prove the guilt of accused; (4) the Commonwealth's Instructions Nos. 3 and 5 were erroneous; and (5) prejudicial remarks were made in argument.

The assigned errors render it necessary to set forth the evidence in detail.

On the 12th day of July, 1947, Walter Jackson, a resident of Surry county, was the owner of eighty-four pieces of cured hog meat, consisting of twenty-eight hams, twenty-nine shoulders and twenty-seven sides. Four days previously they had been removed from the smokehouse to an outhouse or barn adjoining the dwelling. Certain burlap bags that had contained oats and in which a few oats remained were also in the barn. On that date, at 2:30 o'clock p. m., just before leaving his house for the afternoon and evening, Walter Jackson observed that the meat was undisturbed. Upon his return at 12:30 that night, he noticed that the lock on the barn had been "prized" and entrance forcibly effected. Twenty-eight hams, twenty-two shoulders and two sides had been stolen.

Tire tracks, plainly visible in the yard, disclosed that an automobile, or vehicle of that character, had been used in carrying out the theft. It had been driven to within four steps of the barn door. The imprints in the dirt disclosed that the car had been there "backed up" and turned. Some of the bags were also missing and there was "evidence of oat bags having been dragged from the door."

On the day following, Elbert O. Cockes, sheriff of Surry county, was notified. Accompanied by Deputy Sheriff Cofer, he came to the scene of the crime. Upon viewing the premises, they observed the several pieces of meat that had not been stolen and oat bags that had been left in the barn.

In his testimony, Sheriff Cockes says that he saw where the car had been driven near to the barn door and there backed up, and that the barn "had been broken into." The tire marks were twelve to fourteen feet from the door. It was also evident from two other marks seen on the ground at or near the door that objects had been dragged from the barn to the side and to the rear of where the car had stood. He said that "you could see very plainly the tire marks. And I made a little drawing of the tire marks." His testimony also discloses that wherever the car traveled over surface that inclined to one side or the other, the rear wheels did not "track perfectly."

It was evident from these imprints and those where the car was backed and turned that three different kind of tires were on the car. Though the two front tires were alike--the two rear ones were not; nor were they similar to the front tires. The description given by the witness is clear and impressive--"The two front tires had six straight grooves, which I drew six straight lines to represent. They were on the left and right front. The left rear tire had a zig-zag marking, with six grooves, and with a straight line in between each of the grooves. And the right rear tire had little notched places, with a straight line in the center of the notches, and there were six of those."

The drawing made by this witness was introduced in evidence as Exhibit No. 3. It confirms his accurate description.

The above constitutes the material circumstantial evidence apparent at the scene of the crime.

At a later date, the sheriff received information that prompted inquiry at the Division of Motor Vehicles as to who was owner of an automobile bearing a certain license number. Upon ascertaining that the car bearing that license belonged to Raymond Williams of Norfolk, Virginia, the sheriff, on July 28, 1947, accompanied by two detectives, located it parked near Williams' home in that city. Their presence was made known to him and he readily acknowledged ownership of the automobile and, upon request, opened the back of the car.

This graphic account of what his senses made known to him was given by the witness: "You could see grease all around in the back and up on the sides, and across the back of the car. The odor of smoked meat was very strong."

Request was made of Williams that they be allowed to examine his house. He objected and assigned as a reason the illness of his mother-in-law. Upon being told that they would secure a warrant, he consented to the search. In a room adjoining the kitchen, a bag was found which contained a cured hog shoulder and a few oats. In view of this discovered evidence, Raymond Williams was taken to the police station in his car. On that trip, the sheriff says the "smokehouse odor" in the car was very plain.

The prisoner was questioned with regard to the odor in the car, whether he had loaned it to anyone in July, where he secured the shoulder, and how the grease got in the back of the automobile. He denied knowledge of any such odor; said he had not loaned his automobile out on any days except July 24th and 27th; that on July 19, 1947, he was in Rocky Mount, North Carolina, at a June German dance, and purchased two pieces of meat of which that found at his home was one. He said he didn't know how the grease got in the car.

The automobile was held and examined. The treads of each tire corresponded with those on the diagram made from the imprints near the barn. The sheriff also said that "the tracking of the car was as I have stated before, it did not track."

At the trial where the diagram of the tire marks (Ex. 3) was in evidence before them, the jury, in the presence of the accused, viewed the automobile which was then equipped with the same four tires. The grease seen in the car when located on July 28th near Raymond Williams' home could be observed when the trial was had on October 24, 1947.

The bag and piece of meat found at Raymond Williams' home was introduced in evidence. The shoulder was identified by Walter Jackson as a piece of the stolen meat and the bag as "a seed oats bag that was piled along with other similar bags in the barn." A few oats remained in the bag and some are, even now, stuck to and partially embedded in the soft or cut side of the shoulder. Identification of the meat was made by comparison with one of the shoulders that had not been stolen and by being an old-fashioned "square-cut shoulder." Rendering the identification more certain was the manner in which the inside of the hock had been slit and the character of the tie made in the binder twine inserted therein and looped, and by which the shoulder is hung. That the witness was familiar with the slit in the hock and the manner of making the tie in thetwine is by him made evident. He said, "I slit and tied it up myself. * * * You could not find many people who would cut meat like that. That is an old-fashioned way to cut it; and I just keep it up and cut it like that."

The first assignment of error asserts that the prisoner was not present when the court ruled upon the admissibility of certain evidence--that his constitutional and statutory right to be present during the trial was thereby violated.

The right of one charged with felony to be personally present throughout his trial was a basic principle of our common law. The first sentence of section 4894 of the Code of Virginia 1942, (Mi-chie), "A person tried for a felony shall be personally present during the trial, " is but a legislative declaration of that principle. Noell v. Commonwealth, 135 Va. 600, 115 S.E. 679, 30 A.L.R. 1345.

Our inquiry is to determine if what transpired in the absence of the accused constituted any part of the trial.

Exhibits Nos. 1 and 2 had been introduced in evidence before the jury. No. 1 was a shoulder owned by Walter Jackson that had not been taken. No. 2 was the shoulder found in the possession of the accused and which had been identified as having been stolen. The witness, Walter Jackson, was asked by the Commonwealth's Attorney, "Have you any meat at all left there at your place?" The evident purpose was that if he answered in the affirmative then to have him view the two pieces of meat already in evidence and say which one had been left at his farm and how much other meat he had which was not stolen and could be by him compared with that in evidence, thereby rendering more certain and convincing his identification of the piece found in the possession of the accused. Upon objection to that question on the ground that the comparison was improper, the judge and counsel retired to the judge's chambers to...

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