Claytor v. Commonwealth , 134 Va. 674 ( 1922 )

Sims, J.,

after making the foregoing statement, delivered the following opinion of the court:

The sole question involved in this case is the following:

1. Was there sufficient evidence before the jury to support the verdict finding the accused guilty of the larceny of the automobile tires?

The question must be answered in the affirmative.

The corpus delicti, the theft, was proven beyond all doubt. The only question in the case is whether the evidence warranted the jury in concluding that the accused, beyond all reasonable doubt, took the tires from the Fitch store and put them in his automobile on the night of the theft, or whether some one else did this. The following evidence, not to mention other incriminating circumstances, was amply sufficient to warrant the jury in finding that the accused personally took the tires from the store and placed them in his automobile on the night of the theft:

According to the testimony for the Commonwealth, Fretwell was so drunk that he was physically incapable of taking the tires from the store at the time they were taken; the policeman was with the two girls at the depot at that time, so that he could not have been the person who actually took the tires from the store. The accused is the only person to whom the evidence points as having done the actual taking, and when he drove his car up to the depot with the tires in it, he said, according to the evidence for the Commonwealth, “Well, I had the tires in here more than ten minutes before I could find Fretwell.” The jury were warranted by this statement, when considered along with the circumstantial evidence, in finding the accused guilty. This statement being true, it was evident to the jury that the testimony of the accused giving a different accou-nt of how the tires came into his possession was false. Further, the accused had four of the stolen tires on his automobile the morning after the theft, with the factory numbers on them erased. He subsequently removed those tires from the automobile, and denied- that he ever had them on it. It is needless to refer any further to the evidence in detail.

Even if it were true that the policeman furnished the accused with the key with which he unlocked the store, thus enabling the accused to enter it and take the tires, making the policeman an accomplice in the crime, that did not lessen the guilt of the accused.

The case will be affirmed.

Affirmed.