Wright v. Com.

• Decision Date: 21 June 1954
• Citation: 196 Va. 132,82 S.E.2d 603
• Court: Virginia Supreme Court
• Parties: AUBREY G. WRIGHT v. COMMONWEALTH OF VIRGINIA

Page 603

82 S.E.2d 603

196 Va. 132

AUBREY G. WRIGHT v. COMMONWEALTH OF VIRGINIA.

Supreme Court of Appeals of Virginia

June 21, 1954.

Lucian H. Shrader and Harold B. Singleton, for the plaintiff in error.

J. Lindsay Almond, Jr., Attorney General and Thomas M. Miller, Assistant Attorney General, for the Commonwealth.

JUDGE: SMITH

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

The defendant, Aubrey Wright, was indicted for unlawfully and feloniously stealing, taking and carrying away on March 8, 1953, $590.00 in money, 'being the lawful money and currency of the United States of America, * * * and property of one John W. Pick. ' Upon his trial he pleaded not guilty but the jury returned a verdict finding him guilty of grand larceny as charged in the indictment, and fixed his punishment at one year in the penitentiary. A motion to set aside the verdict on the grounds that it was 'contrary to the law and evidence and without evidence to support it,' was overruled and judgment was entered according to the verdict, to which judgment we granted this writ of error.

The defendant was proceeded against under Code, § 18-169, which provides that, 'if any person buy or receive from another person, or aid in concealing, any stolen goods or other thing, knowing the same to have been stolen, he shall be deemed guilty of larceny thereof, and may be proceeded against, although the principal offender be not convicted. ' Since an offence against this statute is made larceny, without specifying either the punishment or the degree of larceny, the statute must be read in connection with Code, § 18-164, the applicable part of which provides that if any person steal from the person of another anything of the value of five dollars or more; or steals from another, but not from his person, anything of the value of fifty dollars or more, he shall be deemed guilty of grand larceny and be confined in the penitentiary not less than one nor more than ten years.

The sole question for our determination is whether the evidence upon which the defendant was convicted is sufficient to establish his guilt beyond a reasonable doubt. It will therefore be necessary to recite the evidence at some length.

On March 7, 1953, John W. Pick, the victim of the larceny, went to Burnett's place, located on an alley back of Seventh and Main streets in Lynchburg, Virginia, for the purpose of gambling. About 2:00 o'clock the next morning, Pick left Burnett's in the company of Robert Almond, and after stopping briefly at a cafe the two went to the Texas Tavern where they met Estelle Creasy, a married woman separated from her husband and living clandestinely with the defendant. At that time Pick, who had been successful at gambling, had on his person approximately $1048.00, which he displayed there in the sight of Estelle Creasy and Almond. An employee of the Texas Tavern was impressed with the size of the roll of money and remarked, 'you got a powerful big roll of bills there, John. ' After a short stay at the Tavern, Almond suggested that he, Estelle Creasy and Pick go to the defendant's apartment at 610 Court street, three or four blocks from the Tavern, where Estelle Creasy and the defendant were living together. Pick agreed to go if the defendant's permission was secured. Almond secured this permission from the defendant, who was at that time gambling at Partlow's place, a gambling house near Seventh street. The three rode to the apartment in a taxi, the fare being paid by Pick who also paid for a pint of whiskey purchased en route by Almond.

Upon entering the apartment, Estelle Creasy changed her dress to lounging pajamas and she and Almond then began to drink; however, Pick did not drink any of the whiskey but lay down on a bed, went to sleep and did not awake until eight o'clock. Almond testified that while he and Estelle Creasy were drinking and Pick was asleep, 'she asked me did I want any money. I said yes, so she went in and got the money and come back and I counted off $430.00 and put it in my pocket and she took the balance of the money, then we left 610 Court street and went back to the Texas Tavern. I went up in the alley and got Aubrey [defendant].'

After Almond told the defendant that he and the woman had 'rolled Pick,' the defendant, the woman and Almond went in the defendant's automobile to the apartment at 610 Court street. While the defendant and Almond waited in the car, Estelle Creasy went into the apartment and got some of her and the defendant's clothes and their bags. Almond testified that when the woman returned she gave the defendant the 'same money' she took from Pick, except for the $430.00 she had given him. The defendant then drove from the apartment to the Arlington Hotel in Lynchburg, and after personally registering the three under fictitious names, he returned to Partlow's place and continued to gamble. Almond and Estelle Creasy were later that day apprehended at the hotel, at which time $430.00 was recovered from Almond, which he admitted was stolen from Pick; however, it does not appear that any money was recovered from the woman.

Pick testified that when he awoke at 8:00 a.m., he was alone; all of his money except sixteen cents was missing; the door to the apartment was open and all the clothes and bags that were in the apartment when he went to sleep were gone. Thereafter, he went to Partlow's place on two occasions and at both times he asked the defendant if he had seen Estelle Creasy and Almond or knew where they were. Each time the defendant denied that he had seen either of them or knew where they were. Pick further testified that when he went to Partlow's place the second time, he told the defendant that he intended to swear out a warrant against Almond and the woman for stealing his money and that the defendant replied, 'For God's sake, don't do that. You can take any amount of this [referring to a large amount of money he was holding in his hand] you want.'

The two city policemen who investigated Pick's complaint testified that when they found the defendant at Partlow's gambling place on the morning of March 8, 1953, he had a $75.00 check and approximately $200.00 in cash; that he denied knowing the whereabouts of Estelle Creasy or Almond, and that he told them he had been gambling at Partlow's all night except for five minutes it took him to move his car from the Texas Tavern to the alley where he was gambling. Around one o'clock of the same morning and before going to his apartment with Almond and the woman, the defendant borrowed $40.00, which he repaid before five thirty; and then between six and six thirty he cashed a $75.00 check for a third party. This was the $75.00 check found on his person by the two investigating policemen.

The defendant testified that he had been unemployed since the middle of February 1953. He not only denied telling the police that he did not know the whereabouts of Estelle Creasy and Almond but he denied having been asked about them by the police. Even in reciting his record of several felony convictions, in addition to his conviction for having threatened to kill a Commonwealth's witness in the instant case, he showed a lack of frankness.

Estelle Creasy testified in behalf of the defendant and denied that she took or received any of Pick's money. She admitted, however, that she knew Pick had a large roll of money.

The trial court fully and correctly instructed the jury on the applicable law, to which instructions there were no objections. The jury was instructed that if any person receive from another person, or aid in concealing, any stolen money, knowing the same to have been stolen, he shall be deemed guilty of larceny thereof, and that under the indictment their verdict should be either guilty of grand larceny or not guilty. In order to support defendant's conviction of grand larceny, the evidence must show beyond a...