Bonner v. Commonwealth , 141 Va. 395 ( 1925 )

Sims, P.,

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

The chief question presented by the assignments, and that on which the decision turns, is the following:

1. Was there sufficient evidence before the jury to sustain the verdict in its finding connecting t'he accused with the crime charged?

The question must be answered in the affirmative.

There is no assignment of error which challenges the sufficiency of the evidence to establish the fact that the fire was incendiary in its origin. Therefore, we do not deal with the evidence on that subject.

No authority is cited to sustain the position taken for the accused that the evidence was insufficient to connect the accused with the crime, and we know of none that does so. There have been decisions of this court holding that where the ease presented by the record goes no further than to show proof merely of the corpus delicti and that the accused had a motive and an opportunity to commit the crime, the evidence is insufficient to sustain a conviction. Garner’s Case, 26 S. E. 507, 2 Va. Dec. 458; Anderson’s Case, 83 Va. 326, 2 S. E. 281; Jones’ Case, 103 Va. 1012, 49 S. E. 663; and Burton & Conquest’s Case, 108 Va. 892, 62 S. E. 376. But in all of those cases therte was evidence, either of statements of the accused, or other testimony, giving a reasonable account of the movements of the accused before and after, and of where he was at or about the time the crime was committed; which account was entirely consistent with the testimony for the Commonwealth. This cannot be said of the instant ease. In this ease the testimony introduced in behalf of the accused on the trial, attempting to account for her movements and whereabouts, was in absolute conflict with the testimony for the Commonwealth on the subject. Both could not be true. Further, the defense of an alibi was not asserted when it could have been first made, and not until the trial; and this delay is not explained. And since the jury found the accused guilty, it found in effect that the attempt of the accused to set up an alibi on the trial was an afterthought and contrivance to defeat the ends of justice. Moreover, in the instant case, according to the testimony for the Commonwealth, which the verdict shows was believed by the jury to be true, the accused and her companion did not have the saltchel with them until they were returning from the vicinity of the crime. They must, therefore, have obtained this satchel from some place in that vicinity, evidence as to which would have been pertinent and material in favor of the accused, if she was innocent of the offense charged; alnd in such case doubtless some evidence on this subject eould have been furnished by the testimony of some one other than the accused and her companion. No such evidence was-introduced in behalf of the accused.

In Dean’s Case, 32 Gratt. (73 Va.) 912, at page 925, this is said: “Now the failure, unexplained, to assert the defense of an alibi when it could first be made, and, if true, would be conclusive, is always regarded by the text writers on circumstantial evidence as a most suspicious circumstahce.” And this is there further said: “Wherever pertinent and material evidence, by which, an alibi might, if true, have been supported, is withheld, or is the result of afterthought or contrivance, the attempt to set it up recoils with fatal effect upon the party who asserts it.”

There was in the evidence before the jury in the instant case a further pregnant circumstance indicating-the guilt of the accused (like which there was nothing in the four cases first above cited), namely, that she and her companion, when returning from the vicinity of the crime, were seen to “duck” out into the field solely to avoid the light of a passing automobile, as the jury, under the circumstances, were warranted in believing.

In Dean’s Case, supra, this also is said: “Here then we have a case of circumstantial evidence, where time, place, motive, * * and conduct concur in pointing out the accused as the perpetrator of the crime. * * Here is an humble man, living in the country, with no large nu,mber of acquaintances, his daily life limited to comparatively a narrow circle. No human being is suggested as being his enemy; no one is found as having a motive to commit the deed; there is no trace or vestige of any other agent save Daniel Dean. In him we have all the facts and circumstances concurring and concentrating as the guilty agent. They all point to him and to no one else. They declare that he is the murderer.” We feel that the s.ame may be justly said, in substance, of the evidence in the instant case.

There are only three assignments of errOr other than that dealt with above, none of which presents anything which would warrant the court in disturbing the verdict and judgment under review. Of these matters it is deemed sufficient to say this:

One of the three assignments of error mentioned relates to a witness for the Commonwealth being allowed to be as'ke,d and to answer as to where he was on the 8th day of April (his whereabouts prior to the night of that day being immaterial); and another to a witness being allowed to be asked a leading question on another subject, upon which there was other abundant evidence. It is apparent from the record that no prejudice could have Resulted to the a’ceused from the asking or the answering Of these questions. Hence, there is no merit in such assignments of error.

The remaining assignment of error relates to the action of the court, after it had ordered that all witnesses except the one testifying be excluded from the court room during the trial, in allowing a witness for tho Commonwealth, who was in court only when a certain witness was testifying, to testify in rebuttal as to a conversation he had with a different witness from that-whose testimony was given while he was in the court room. The trial court certifies that it allowed such testimony because it was “of opinion * * that nothing in the premises had operated or would operate any prejudice to the accused.” We think the trial court-was plainly right in this opinion and that there was no error in its action in question. See Jarrell’s Case, 132 Va. 551, 567-8, 110 S. E. 430; Wash. & O. D. Co. v. Ward, 119 Va. 334, 336-7, 89 S. E. 140.

The case must be affirmed.

Affirmed.