Holloman v. Commonwealth , 138 Va. 758 ( 1924 )

Burks, J.,

delivered the opinion of the court.

The plaintiff in error, hereinafter called the defend-' ant, was convicted of purchasing an automobile of the value of $300.00, knowing it to have been stolen, and .sentenced to the penitentiary for one year. There are four assignments of error, but three of them are not of such character as would, under the circumstances, warrant a reversal if sustained. The fourth is that the verdict is contrary to the law and the evidence, and without evidence sufficient to sustain it.

There is abundant testimony to sustain the verdict if the jury believed the witnesses for the Commonwealth. The automobile was a Ford car, which had been used about nine months and worth $600.00 when stolen. It was taken from the curbing in front of the Westmoreland club, in the city of Richmond, and sold to the defendant in Sussex county. It was fully identified by the engine number and otherwise. The Commonwealth relied chiefly on the testimony of two “bootleggers,” Kins-ton and Gary, both of whom had been convicted of violating the prohibition law (Laws 1918, chapter 388), and one of whom (Kinston) admitted that he had stolen four automobiles, including the one sold to the defendant, and was then in jail and under indictment for such stealing.

Kinston testified that he had an agreement with the ■defendant to steal an automobile and sell, it to him for thirty-six gallons of whiskey; that he stole the automobile in controversy and carried it to Sussex county .and exchanged it with one Adkins, to whom he had formerly sold another stolen car, for the latter car; that one Gary (the other bootlegger) accompanied him in another car; that he, Gary and Adkins, then drove to the defendant’s home and there delivered the car he had gotten from Adkins to the defendant; that the defendant and several others who were present went some little distance into the bushes and brought back and delivered the whiskey to him; that the defendant helped to load the whiskey in the car driven by Gary; that he gave the defendant a receipt for $250.00 for the car; that he and Gary then drove back to Richmond, and that the defendant knew that car was stolen when he bought it. Gary testified to going on the trip with Kinston to the defendant’s house, and while he stated that he did not hear anyone say anything about trading an automobile for whiskey, nor see any money paid or receipt given, he also stated that the defendant helped to load six cases of whiskey in the ear witness was driving, and that “he and Kinston returned to Richmond, leaving the other ear.” He further testified that he heard the defendant say that the whiskey was his.

The defendant, as a witness in his own behalf, denied every material statement made by these two witnesses. He testified that Julius Adkins, whom he had known for many years, told him that Kinston was running a garage in Richmond, and had to sell cars to get money due bim for repair work, and he could buy one cheap, and he told Adkins that he would buy one; that subsequently, in March, 1922, Adkins came to his house with Kinston about seven or eight o’clock in the evening,. and he bought the car from Kinston; that there was another man named Gary who came with Kinston and Adkins, and was driving another Ford car; that there was some discussion about the price, but Kinston asked $250.00 for the car; that he finally told Kinston that he did not. lave the money just then; that he only had $65.00; that his brother, McKinley Holloman, offered to lend him ■■$35.00; and they all got into one of the cars and went to the house of another brother, Douglas Holloman, about a mile and a half away, who loaned him $150.00, and thus the $250.00 was raised, which he paid Kinston for the car and took his receipt for it; that there was some 'Controversy over the form of the receipt, and the defendant testified that Kinston agreed to return the next day and have a proper receipt prepared by a justice of the peace or other proper officer; that nothing was said which aroused his suspicion or led him to think that the •car had been stolen; that the car had no license tag on it when he bought it, and he did not remember what Kinston told him about the tag, though he gave some explanation why it was not on it; that he never had any conversation with Kinston about trading him liquor for the car, nor was anything said to him to lead him to think that Kinston wanted to do anything but sell it to him for money; that his car was taken by one Nichols into Petersburg, without his knowledge or consent, when Nichols was arrested for speeding, and as soon as he ascertained that fact he went to Petersburg, carried the receipt with him and demanded his car; that he was advised to go to Richmond to the office of the Secretary of the Commonwealth and find out about the ear; that he went to Richmond and was told that the car had been stolen; that he then went to the jail with an officer and saw Kinston and talked with him about it, and that Kinston was then arrested for stealing automobiles; that defendant was also subsequently arrested for buying a stolen car from Kinston. He denied that he traded liquor for the ear or helped to load liquor in the car, nor did he ever say that the liquor was his, as testified to by •Gary.

McKinley Holloman, a brother of the defendant, was' present when Kinston and others came to defendant’s house and went with them to the house of Douglas Holloman to borrow the $150.00. McKinley Holloman confirms everything that was said by the defendant with reference to what transpired about lending the money to purchase the automobile for cash and taking a receipt for it. He also testified that nothing was said in any of the conversation which would lead him to think that the-car was stolen, but he was led to think from the conversation that Kinston was running a garage in Richmond and was selling the car to get some money out of it owing-to him for repair work.

Douglas. Holloman, another brother of defendant,, confirms the statement of defendant with reference to-the loan of the $150.00, payment of the money to Kins-ton, and the taking of the receipt; and further said that, nothing was said about trading the car for liquor, and that all of the talk was about money, and there was-nothing about the matter to cause any suspicion that. Kinston had stolen the car.

Another witness, Alexander Richardson, was present, at the defendant’s house when the parties came therewith the car, and confirms the statements of defendant as to what transpired there about the borrowing of' $35.00 from McKinley Holloman, and sale of the car at-$250.00. He stated that he heard all of the conversation that took place at the defendant’s house, and there-was nothing said which would lead one to think that the-ear had been stolen. The constable and a justice of the peace of Sussex county testify to the good character of' the defendant for truth and veracity, and as a law-abiding citizen. While other details of the transaction appear in the testimony, it is not deemed necessary to give them, as the foregoing statement contains the-salient facts of the ease.

As the automobile found in the possession of the defendant was fully identified as the one stolen from the front of the Westmoreland club, it is manifest that the story told by Kinston as to the exchange made with Adkins in Sussex was not true. There were also some other inconsistencies in his testimony. The jury, however, had the right, in addition to the other testimony, to take into consideration the fact that the sale was made about eight o’clock at night; that it was made by a stranger; that it was at a very reduced price; and that the automobile carried no license tag. The ease was one for the jury, whose verdict has been approved by the trial court, and with that judgment we cannot interfere. Code, sections 6251, 6363.

Affirmed.