Bacino v. People, 14456.

• Decision Date: 17 April 1939
• Docket Number: 14456.
• Citation: 104 Colo. 229,90 P.2d 5
• Parties: BACINO v. PEOPLE.
• Court: Colorado Supreme Court

90 P.2d 5

104 Colo. 229

BACINO v. PEOPLE.

No. 14456.

Supreme Court of Colorado, En Banc.

April 17, 1939

Error to District Court, El Paso County; John M. Meikle, Judge.

Joe Bacino was convicted of larceny, and he brings error.

Affirmed.

John W. Elwell and V. G. Seavy, both of Pueblo, for plaintiff in error.

Byron G. Rogers, Atty. Gen., and Henry E. Lutz, Asst. Atty. Gen for the People.

KNOUS Justice.

Plaintiff in error, defendant below, was convicted of the larceny of a number of diamond rings of the property of the Mahan Jewelry Company of Colorado Springs. Defendant was tried as an accessory made a principal by section 13, chapter 48, '35 C.S.A., which, so far as pertinent, provides: 'An accessory is he or she who stands by the aids, abets or assists, or who, not being present, aiding, abetting or assisting, hath advised and encouraged the perpetration of the crime. He or she who thus aids, abets or assists, advises or encourages, shall be deemed and considered as principal and punished accordingly.' The defendant's alleged accomplices, who the people claim physically purloined the diamonds, were named Kaeser and Rutz. Kaeser having died shortly after the commission of the crime never was apprehended in connection therewith. Rutz was arrested and charged with the offense and testified for the people in the case at bar, as did the woman companion of Kaeser, named Miss Clark. The defendant did not take the witness stand and the record of his participation in the transaction is uncontradicted. The only evidence offered in his behalf was confined to the contradiction of certain more or less extrinsic details in the testimony of Rutz and Miss Clark. The uncontroverted evidence of the people discloses that on the evening of December 8, 1937, Kaeser, Rutz and Miss Clark went from Denver to Pueblo where the defendant, a tavern operator, resided. On the morning of December 9th the three went to defendant's tavern for breakfast and Rutz, who was acquainted with accused, introduced his two companions. They met again on the afternoon of that day and defendant asked them: 'What did you come after this time' and 'What are you going to take?' to which the answer was: 'Well, anything he could use.' Later defendant advised that he could use a couple of guns and a portable typewriter, and in the course of this and other conversations stated that he would like to get some 'ice', meaning diamonds, and informed Rutz and Kaeser that if they were going to steal to get something good and 'quit fooling around with petty stealing.' Defendant informed the two that the Kortz-Lee Jewelry Company in Pueblo had some desirable diamonds on display. Rutz testified that after this conversation he and Kaeser, with the assistance of Miss Clark, attempted to steal diamonds from the Kortz-Lee store by the device of Rutz and Miss Clark engaging a clerk in conversation concerning an alleged prospective purchase while Kaeser attempted to remove the diamonds from the counter or window where they were kept. They, however, were unsuccessful in this projected larceny and in an effort to steal guns from a hardware store. They did, however, manage by this method of operation to abstract some diamonds from another jewelry store in Pueblo, which were promptly bought by defendant, as was a typewriter purloined by Kaeser. After these transactions were consummated defendant suggested that Rutz and Kaeser go to Colorado Springs with him. The trip was made on December 11 in defendant's automobile, with him driving, Kaeser in the front seat and Rutz in the rear, where, owing to his dozing he did not hear all of the conversation, but testified that in the course of the trip accused remarked that he knew 'some swell spots' in Colorado Springs. Upon arrival there defendant stopped his car in front of the Metropole cafe, where Rutz and Kaeser alighted. Bacino told the two to meet him in thirty minutes in that cafe and pointed up the street in the general direction of the location of the Mahan Jewelry Company store. Rutz and Kaeser then proceeded to that shop where, by the expedient of Rutz stating that he desired to buy certain merchandise, the clerk was drawn away from the counter where the diamonds were kept and Kaeser extracted from the case, in display trays, diamonds of the value in excess of $3,000. Immediately thereafter the two left the premises and proceeded to the Metropole cafe where defendant was waiting, who, however, upon their entrance accorded them no recognition. The two proceeded to the washroom of this restaurant where Kaeser removed the rings from the trays concealed the latter, and placed the jewelry in his pocket. Kaeser and Rutz returned to the restaurant proper and partook of refreshments, after which, upon a sign from defendant the three left the restaurant, entered defendant's car and proceeded toward Pueblo. A short distance outside of Colorado Springs Kaeser exhibited the diamonds to defendant, who said: 'Put them back in your pocket until we get out of this county,' which Kaeser did. After they had crossed the El Paso-Pueblo county line accused drove the car off the main traveled road and the diamonds were again produced and minutely examined by him. After this inspection defendant offered to pay the sum of $500 for the diamonds, which Kaeser indicated was acceptable. The party then proceeded to Pueblo where later, the same day, defendant gave kaeser and Rutz $410, which he said was all the money he could raise, and received the diamonds, parting with the injunction that: 'If anything happens I don't know you guys,' to which the reply was: 'We don't know you either.'

As one of the grounds for reversal defendant asserts that error was committed in the admission of the evidence concerning the larceny of diamonds in Pueblo by Rutz and Kaeser; the theft of the typewriter by the latter; the purchase of this loot by defendant; the details of the unsuccessful attempt to rob the Kortz-Lee Jewelry Company and the unnamed hardware store in Pueblo by the two active thieves, in their misguided efforts to steal articles which the defendant expressed his willingness to purchase. While as a general rule evidence tending to show that accused has committed a crime wholly independent of the offense for which he is on trial is inadmissible, there is an exception, equally well settled, that it is competent to show that defendant had participated in similar illegal enterprises to prove criminal intent, plan or design, and especially is this the case where, as here, the other transactions were so connected in point of time with the offense under investigation, and so similar in character, that the same motive could be imputed as to all of them. Clarke v. People, 53 Colo. 214, 125 P. 113; Housh v. People, 24 Colo. 262, 50 P. 1036; Warford v. People, 43 Colo. 107, 96 P. 556; Castner v. People, 67 Colo. 327, 184 P. 387; Bush v. People, 68 Colo. 75, 187 P. 528; Myers v. People, 65 Colo. 450, 177 P. 145.

The trial court by proper instruction expressly limited the consideration of this evidence to the purposes for which it was introduced and...