Stapleton v. Commonwealth
124 S.E. 237
Va.
1924
Check Treatment
Sims, P.,

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

*485All of the questions raised by the assignments of error which are not obviously untenable will be disposed of in their order as stated below.

1. Is the indictment (which is for compound larceny, to-wit, charging burglary and larceny, and which contains only one count, in which both the burglary and larceny are charged) sufficient to support the conviction of larceny which was obtained by the Commonwealth in the instant case?

The question must be answered in the affirmative.

It has been long settled and unquestioned by the authorities on the subject that on such an indictment there may be a conviction of the offense of burglary, or of the offense of larceny charged therein. Speer’s Case, 17 Gratt. (58 Va.) 570; Benton’s Case, 91 Va. 788, 21 S. E. 495; State v. McClung, 35 W. Va. 283, 13 S. E. 654. It is true that under such an indictment there cannot be a conviction of both of such offenses. See the eases just cited. It is also true that where there is a general verdict in a prosecution on such an indictment, not specifying of which offense the accused is found guilty, it will be considered to be a conviction of the major offense. Speer’s Case, supra; Vaughan’s Case, 17 Gratt. (58 Va.) 576; Butler’s Case, 81 Va. 159; Wright’s Case, 82 Va. 183; Clark’s Case, 135 Va. 490, 115 S. E. 704. But the verdict in the instant case specifies the offense of which the accused, Stapleton, is found guilty, namely “grand larceny;” and so negatives the burglary so far as the accused, Stapleton, is concerned. As said in Speer’s Case, at page 574, speaking of a verdict in a prosecution on precisely the same form of indictment as in the instant case, “* * the burglary may be negatived and the larceny found.”

Such an indictment is, indeed, primarily an indictment for larceny. The allegations concerning the *486burglary are matters of aggravation only; and. the test of the sufficiency of the indictment, as an indictment for larceny, as stated by Mr. Bishop (2 Bishop’s New Cr. Proc. [2d ed.], section 772), is whether the indictment, when “stripped of the aggravating matter, embraces still a competent charge of larceny at the common law.”

The indictment in the instant case will unquestionably stand in the test just mentioned, and is, for that reason, a good indictment for larceny. It is such an indictment because it contains a competent specific charge of larceny at the common law.

The case does not fall within the control or influence of such cases as the Hardy and Curry Case, 17 Gratt. (58 Va.) 592, strongly relied on for the accused, in which the indictment in terms charges only one major offense, which is held to also embrace the charge of all lesser offenses which are incident to and constitute elements of the major offense. In such cases, only such lesser offenses as are in their nature constituent parts of the major offense can be considered as charged in the indictment, and conviction of such character of lesser offenses only can be had and enforced under such an indictment. But such an indictment as that in the instant ease is not one which in terms charges only one major offense. It in terms charges both the major and the lesser offense in question; and the conviction of the lesser offense charged may be had and enforced under such an indictment, because, as aforesaid, the indictment contains a competent specific charge of the lesser offense at common law, and not because the lesser offense is of such character that it is an element of the major offense charged.

2. Is the verdict and judgment convicting the accused, Stapleton, of the offense of grand larceny invalid because the larceny of which the accused was *487found guilty is constructive larceny only, being in fact the offense of receiving stolen goods, knowing them to have been stolen, which is deemed larceny merely by reason of the statute (Code section 4448); whereas the larceny charged in the indictment is the actual asportation of the goods animo furandi, mentioned in the indictment, and such asportation at the same time that the burglary, also mentioned in the indictment, was committed?

The question must be answered in the negative, for two reasons:

First: The verdict is a general verdict, so far as it specifies the offense of larceny of which it finds the accused guilty. It cannot be determined from the verdict whether the jury found the accused guilty of the actual or of the constructive larceny aforesaid. There was direct evidence for the Commonwealth to the effect that the accused was the instigator and the moving spirit in bringing about the larceny (i. e., that he “procured, encouraged and counselled” Wilcher and Crews “to commit” . the crime, Min. Syn. 13) in this, that with the intent to steal the property, the accused, before the event, instigated and directed the acts done by bis associates in the commission of the crime, and indeed also assisted them in the taking and carrying away of the goods. This was ample evidence to support the verdict finding the accused guilty of the actual larceny, and fixing his punishment as a principal in the first degree (Code section 4764). And since, for all that appears in the record before us, the verdict may have been such a verdict, we cannot say that the verdict and judgment are invalid for the reasons in question.

Secondly: It is settled that under the statute (Code section 4448), on the charge of actual larceny, it was permissible to prove and obtain a conviction of the *488constructive larceny aforesaid, consisting of the receiving of the stolen goods, knowing them to have been stolen. And there was ample evidence to support a verdict finding the accused guilty of the constructive larceny, if it was permissible for the Commonwealth to prove that such larceny was committed on a different and later date from that alleged in the indictment. That this was permissible is beyond question, since, being a case of grand larceny, it is a felony case; in which character of eases it has been long settled, and it is well understood, that the Commonwealth may prove the commission of the crime charged on a date different from that alleged, and sustain a conviction thereof. Cool’s Case, 94 Va. 799, 26 S. E. 411; Ailstock’s Case, 3 Gratt. (44 Va.) 650; Puckett’s Case, 134 Va. 574, 113 S. E. 853.

3. Did the court err in giving instruction No. 3, asked for by the Commonwealth, by which the jury were in effect told that they might consider the fact of recent exclusive possession of the stolen property, under the circumstances set forth in the instruction, as evidence of the aforesaid constructive larceny, as well as of the actual larceny?

The question must be answered in the negative.

It is settled that the rule of evidence mentioned in the instruction in question is equally applicable when the prosecution is for the aforesaid constructive, as for actual, larceny.

As said in 2 Bish. New Cr. Prac. (2d ed.), section 959: “Not only is the evidence of possession relevant in cases of larceny, but in other cases also; and among those other eases is (where) the indictment (is) for receiving stolen goods. * * when goods are shown to have been stolen, recent possession of them is evidence against the possessor, tending to show either the original theft to have been committed by him, or a *489guilty receiving by him, according to the other circumstances of the ease.”

State v. Freedman, 3 Pennewill (Del.) 403, 53 Atl. 356; State v. Richmond, 186 Mo. 71, 84 S. W. 880; George v. State, 57 Neb. 656, 78 N. W. 259; and People v. Weisenberger, 73 App. Div. 428, 77 N. Y. Supp. 71, are cited for the accused, as containing a contrary holding; but they do not. These cases hold only that the mere naked possession of stolen goods, unaided by other proof;, is no evidence of the accused’s having received the goods knowing them to have been stolen. Mr. Bishop in the same section, 989, supra, of his 2 New Cr. Proe., extracts from which are above quoted, makes the same statement of the law. But recent possession of stolen goods, under the circumstances set forth in the instruction under consideration, is a very different matter. See Myers’ Case, 132 Va. 746, 111 S. E. 463.

State v. Brady, 121 Iowa 561, 97 N. W. 62, 12 L. R. A. (N. S.) 208, is cited and relied on for the accused as; holding that upon an indictment for burglary the accused cannot be convicted of receiving stolen goods, knowing them to be stolen. An examination of that case discloses that it does not contain that holding. It holds merely that bare evidence of the possession of the stolen goods is not sufficient of itself to support a conviction of burglary. There is nothing in that holding in conflict with the views we have above expressed. See also on this subject Myers’ Case, supra (132 Va. 746, 111 S. E. 463).

4. Did the court err in admitting testimony showing that the accused had in his possession when arrested other stolen goods not mentioned in the indictment?

The question must be answered in the negative.

It is settled that such evidence is admissible on *490a prosecution for receiving stolen goods, knowing them to have been stolen, “as tending to show guilty knowledge.” 2 Bish. New Cr. Proc. (2d ed.), section 990.

5. Did the court err in refusing to give instructions A, B, and C, asked by the defendant?

The question must be answered in the negative.

It is apparent from a reading of these instructions, along with the instructions given, above copied, that, so far as the instructions refused were proper, they were covered by other instructions given at the request of the accused.

The case will be affirmed.

Affirmed.