168 Va. 663 | Va. | 1937
J., delivered the opinion of the court.
A. R. Hagy complains of two judgments rendered against him whereby he was convicted in each case of petit larceny.
Each of the warrants alleged that the accused unlawfully and wilfully did take, steal, and carry away a certain sum of money, the property of the Commonwealth of Virginia. The Commonwealth based its prosecution under Va. Code 1936, section 4459. And it was more specifically contended that the accused had claimed and received, for attendance at two terms of the Circuit Court of Buchanan county, a total mileage and attendance allowance of $43.06 for traveling to that court, held at Grundy, Virginia, from Lynchburg, Virginia, and back, whereas, in fact, he had only traveled from a point in near-by Washington county. The trial justice imposed a fine of $25.00 and thirty days in jail in each case. On appeal to the Circuit Court of Buchanan county, a like verdict was found by a jury in each case, and judgments were accordingly entered by the court.
Hagy, while residing in Washington county, had received summonses to attend the trial of a certain case at Grundy, the county seat of Buchanan county, for both the November, 1933, and April, 1934, terms of court. He responded to both of these summonses, and thereafter he represented to the clerk of the court that he had been compelled to travel on each occasion from Lynchburg to attend the trials. The clerk of the court accepted his statement, and paid him for his first appearance $22.02, and for his second appearance the sum of $21.04, covering the claimed mileage and attendance fees.
The sole issue was whether or not the accused, by a
Especially it is the gravamen of the offense here charged that the representation made by the accused, that he was compelled to travel from Lynchburg to Grundy, is false and untrue, for this is the representation upon which he obtained his attendance fees. A number of witnesses testified that at various times near the dates when Hagy attended the court as a witness, he was seen in Washington county, but none of them was able to contradict his direct claim that it' was necessary for him to make the trips from Lynchburg to attend the court in response to the summonses served on him. There is a seeming contradiction of the accused as to whom he worked for in Lynchburg, but that is insufficient to prove that Hagy did not, in fact, come from Lynchburg to attend the court. There was other evidence that Hagy, from time to time, actually did considerable traveling to various other points outside of his home county. Hagy did not testify at his trial. While there may be some suspicious circumstances connected with the case, not a single witness was found to testify that the accused did not make the trips for which he claimed the mileage and attendance fees. On this phase of the case the Commonwealth has failed to carry its burden.
The conclusion of guilt beyond a reasonable doubt must be supported by credible evidence, and cannot rest upon conjecture or suspicion. The evidence must go further than to create a suspicion or probability of guilt. Triplett v. Commonwealth, 141 Va. 577, 127 S. E. 486; Dixon v. Commonwealth, 162 Va. 798, 173 S. E. 521.
There is also an assignment of error that the trial court erred in the admission of certain collateral evidence with
While the evidence of Hagy’s actions in the other prosecution may throw some light upon the character of the accused, his character was not in issue, since he did not even take the stand as a witness, nor offer any proof of good character. The collateral evidence of this nature and the argument of counsel based thereon were prejudicial and erroneous.
It follows that the two judgments of the trial court approving the verdict of the jury in each case under review, should be reversed, and the cases remanded for a new trial, if the Commonwealth should be advised that sufficient evidence can be produced to warrant a further prosecution.
Reversed and remanded.