Allison v. People

• Decision Date: 06 April 1942
• Docket Number: 15097.
• Citation: Allison v. People, 109 Colo. 295, 125 P.2d 146 (Colo. 1942)
• Parties: ALLISON v. PEOPLE.
• Court: Colorado Supreme Court

125 P.2d 146

109 Colo. 295

ALLISON v. PEOPLE.

No. 15097.

Supreme Court of Colorado, En Banc.

April 6, 1942

Rehearing Denied April 27, 1942.

Error to District Court, City and County of Denver; Henry A. Hicks Judge.

Fay L Allison was convicted of simple larceny, and she brings error and applies for supersedeas.

Judgment affirmed.

William A. Black and Don D. Bowman, both of Denver for plaintiff in error.

Gail L. Ireland, Atty. Gen., H. Lawrence Hinkley, Deputy Atty. Gen., and James S. Henderson, Asst. Atty. Gen., for defendant in error.

OTTO BOCK, Justice.

Plaintiff in error, Fay L. Allison, to whom we hereinafter refer as defendant, was charged in two counts of an information with larceny from the person and simple larceny, in feloniously taking $10 in cash and one diamond ring valued at $500, all of which was the property of the complaining witness Margaret N. Dodge. Defendant entered a plea of not guilty, and upon trial the jury returned a verdict of guilty of simple larceny--the second count. On this verdict the court imposed a penitentiary sentence upon defendant, and she seeks a reversal of the judgment on writ of error. We elect to dispose of the case on her application for supersedeas.

Defendant's main contention for reversal is based upon the denial by the court of a motion for a directed verdict, upon the ground that 'the people failed to connect the defendant in any way with the commission of the crime charged in the information or any other crime.'

The evidence upon which conviction was obtained is wholly circumstantial. No one saw defendant take the ring or money, neither of which ever was recovered. The evidence against defendant being circumstantial, the court instructed the jury in part as follows: 'Where a conviction is sought on circumstantial evidence alone, as in this case, the people must not only show beyond a reasonable doubt that the alleged facts and circumstances are true, but the facts and circumstances must be such as are absolutely incompatible, upon any reasonable hypothesis, with the innocence of the defendant, and incapable of explanation upon any reasonable hypothesis other than that of the guilt of the defendant.' The jury, by its verdict, must have found that the evidence upon which it was based was 'absolutely incompatible, upon any reasonable hypothesis, with the innocence of the defendant.' Even though the jury so found, in view of the asserted error, it is our duty carefully to search the evidence in order to determine whether this verdict was sustained thereby.

The record discloses the following facts and circumstances: On the evening of July 6, 1941, at the Broadmoor Hotel, Colorado Springs, Colorado, Mrs. Dodge for the first time met defendant, who was sitting in the rear seat of the former's automobile, where she, at her own solicitation, was invited by friends of Mrs. Dodge, to whom she also was a stranger, on the plea of obtaining transportation to Denver. After Mrs. Dodge granted permission to defendant, for the transportation sought by her, she requested that a stop be made at the Joyce Hotel, where she was registered, so that she might obtain her luggage. When Mrs. Dodge reached said hotel she and her friends, composed of Mr. and Mrs. Claycomb, and a Mr. Sneed, who is connected with the United States military service, were invited by defendant to her room, for a cocktail. While there defendant made a long-distance telephone call, purportedly to her husband, but, in fact, to one Stovell at Dallas, Texas. At that time and place each member of the party had one drink of whiskey, and after a lapse of approximately fifty minutes they left Colorado Springs at ten o'clock p. m. and proceeded to Denver, arriving there at approximately one o'clock in the morning, driving directly to the home of Mrs. Dodge, at which point the Claycombs transferred their luggage to their own car and departed. Mrs. Dodge, Sneed and defendant then proceeded to a night club on Broadway, ostensibly to get something to eat, but, instead, Mrs. Dodge had one and defendant and Sneed each had two drinks of liquor. At that time defendant stated that she was stopping, or intended to stop, at the Argonaut Hotel. At about two o'clock a. m. they left the night club to take defendant to this hotel. Upon their arrival, Mrs. Dodge remembered that a friend of hers was residing at the hotel, and after locating him, all three went to his room, and after partaking of more liquor, Mrs. Dodge taking but one drink, and, owing to the lateness of the hour, at the latter's suggestion they decided to leave for home at about 3.20 o'clock a. m. Before departing Mrs. Dodge asked defendant if she was stopping at the Argonaut, to which defendant replied that she did not care to stop at that hotel. At her suggestion that they go to a place on the North Side about which she had heard, for an Italian dinner, the party proceeded to that locality, Sneed driving, but after some time, defendant, while insisting that they find the place, failed to locate it, and finally the party partook of sandwiches and coffee as a little 'pick-a-rib' place, from which they went directly to the Cory Hotel, where defendant had decided to stop, reaching there at 5.57 o'clock a. m. When they arrived in front of the hotel defendant, remarking that Mrs. Dodge and Sneed had been very nice to her, invited them to come up and have an 'eye-opener.' At that time, without the knowledge of Mrs. Dodge, she registered under the name of 'Mrs. F. A. Arler' of Colorado Springs. Mrs. Dodge and Sneed accepted defendant's invitation, but when they reached her room, she said that she was sorry, but she did not have anything, and gave Sneed some money requesting him to go out and purchase some liquor. He went out, but returned shortly, stating that he had been unsuccessful, and had asked a taxi driver to procure and bring them some. While Sneed was absent defendant unpacked her bags, slipped off her shoes, hung her clothes in the closet, and was asked by Mrs. Dodge how long she intended to stay, to which she replied, 'four or five days,' that she was expecting her husband. Soon thereafter the taxicab driver came with the liquor and handed it to defendant, who paid him for it. She took the bottle into the bath room, closing the door sufficiently so that neither Mrs. Dodge nor Sneed could see her pour the liquor. When she returned, and while serving the drinks, the following conversation occurred between Mrs. Dodge and defendant:

Mrs. Dodge: 'You say you will be here four or five days?'

The Defendant: 'Yes.'

Mrs. Dodge: 'You are meeting your husband?'

The Defendant: 'Yes.'

Mrs. Dodge: 'Isn't that nice. Is this your first marriage?'

The Defendant: 'No, no. I have been married four times.'

Mrs. Dodge: 'That is quite a few.' (Looking at the ring on her left finger): 'This was my first marriage.'

The Defendant: 'It isn't a bad rock.'

That was the last Mrs. Dodge remembered. She had sipped only a part of the liquor, which was the first served since they left the Argonaut at 3.20 a. m. Both Mrs. Dodge and Sneed 'passed out.' As Mrs. Dodge expressed it, 'just like I was shot.' At approximately 6.45 a. m. defendant packed her luggage and checked out, paying for the time that she had occupied the room, in which she left Mrs. Dodge and Sneed in their unconscious condition. At approximately 7.45 a. m. Mrs. Dodge regained consciousness, and after noticing that her ring and money were missing, she, with some difficulty, aroused Sneed, who was slumped in a chair near the window. Her empty purse was lying on the floor, and, after learning that defendant had checked out, they immediately reported the matter to the police at headquarters, where they were interviewed by Sergeant Lawrence Cook. Cook checked the telephone call defendant had made from the Joyce Hotel to Dallas, and learned that it was to a man by the name of Stovell, and through this party he obtained a photograph of defendant, which he forwarded to the F. B. I., and with the assistance of this agency he subsequently succeeded in locating defendant in Chicago about two months later. She refused to return to Denver, and was extradited. On her way to Denver she told the officer who had her in charge that she left the party at the Cory Hotel shortly after she registered, because she became sick; that she had a roundtrip ticket to Dallas, Texas, and also a ticket from there to Chicago, Illinois, and that she left Denver by train about 8.30 a. m. the same day for Dallas; that she stopped only between trains; that she went from Dallas to Chicago, and had been there and in that vicinity ever since. When asked by the officer whether she took the ring, she said: 'You know from my record I never take any jewelry, it has always been money.'

Defendant did not testify at the trial. This fact, as the court instructed the jury, cannot be considered as any evidence of her guilt or innocence. ' 35 C.S.A. c. 48, § 488. However, defendant, because of her failure to testify, will not be heard on review to complain that the jurors drew inferences against her which were warranted by the evidence. O'Loughlin v. People, 90 Colo. 368, 10 P.2d 543, 82 A.L.R. 622. Moreover, under the circumstances, the jury could draw any reasonable inference of guilt from the whole evidence. Blanda v. People, 67 Colo. 541, 189 P. 249.

Does the record here reviewed, notwithstanding the verdict of the jury to the contrary, leave standing some reasonable hypothesis of innocence? If it does, as a matter of law, a conviction upon evidence which is wholly circumstantial should not be permitted to stand. The verdict of the jury, in view of the instructions above mentioned, is an element to be considered, but it is not controlling. The...