Buckles v. People

• Decision Date: 30 March 1964
• Docket Number: No. 20852,20852
• Citation: 391 P.2d 873,154 Colo. 357
• Parties: Raymond D. BUCKLES, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 873

391 P.2d 873

154 Colo. 357

Raymond D. BUCKLES, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.

No. 20852.

Supreme Court of Colorado, En Banc.

March 30, 1964.

Rehearing Denied May 18, 1964.

Raymond D. Buckles, pro se.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., John E. Bush, Asst. Atty. Gen., Denver, for defendant in error.

HALL, Justice.

The plaintiff in error, defendant in the trial court, was by information charged with the offense of receiving stolen goods as defined by CRS '53, 40-5-12. The article alleged to have been stolen and received was an 'Admiral 17' portable, black leatherette television set, Model PL 17F43, Serial No. 6929038, of the value of more than fifty dollars ($50.00). The offense is alleged to have been committed on December 2, 1960.

The defendant entered a plea of not guilty. Trial was to a jury which returned a verdict finding the defendant guilty.

The defendant filed a motion for 'Judgment of Acquittal' or, in the alternative, 'New Trial,' wherein he sets forth as reasons for granting a new trial nineteen alleged errors. This motion was denied and the defendant was sentenced to the State Penitentiary for a period of not less than two nor more than three years.

Here, the defendant urges only one ground for reversal, and that is that the evidence was not sufficient to warrant submission of the matter to the jury and that the evidence did not establish, beyond a reasonable doubt, or at all, the allegations of the information

Though the transcript of the trial court's proceedings is quite voluminous, the relevant testimony is very brief.

The People offered evidence to the effect that on December 2, 1960, the television set described in the information was the property of the Highland Furniture Co., and was then in its store located at 3826 North Federal Boulevard, Denver, Colorado. Two witnesses testified that at about 10:00 o'clock A.M. on December 2, 1960, the set was stolen from the store by parties unknown. Another witness, an employee of the Admiral Corporation, manufacturer and distributor of Admiral TV sets, testified that the set in question had been sold and delivered to Highland Furniture by the Admiral Corporation.

Further testimony of the People was to the effect that from about January 1961 until August 31, 1962, the defendant had possession and control of the set described in the information. During part of this time he had it in his personal possession, at other times he had loaned it to his relatives, and eventually loaned it to his girl friend from whose apartment it was taken by police on August 31, 1962.

The set, taken from said apartment, was introduced in evidence. It answered to the letter, including the serial number, the description of the set alleged to have been stolen.

At the close of the People's case, only the foregoing evidence having been presented, the defendant moved for a judgment of acquittal. This motion was denied.

Thereupon the defendant took the witness stand and denied any wrongdoing and stated that in June 1960, while in Arizona, he had purchased the set in question from the Sun Valley TV dealer in Phoenix, and that he had returned to Denver about July 1, 1960, and brought the set with him; that he possessed it part of the time after returning to Denver, and during the balance of the time, until it was seized, he had loaned it to his relatives or friends. On cross-examination the defendant admitted that he had, prior to trial, endeavored to contact Sun Valley TV, but to no avail, and he stated that Sun Valley TV is not listed in the Phoenix telephone directory and that it is no longer in existence under that name. He had no bill of sale, sales slip, or other document evidencing his purchase of the set.

In addition, the defendant called as witnesses Ray Galindo and Alfonso Galindo, brothers, who had for several years, and until the December 1960, operated Park Avenue TV Repair Shop in Denver.

Ray testified that in September 1960 the defendant brought to his shop a TV set such as that described in the information; that the defendant complained that there was some trouble in getting good receiption in all channels; that at the defendant's request he undertook to make adjustments, and in making necessary adjustments he broke one of the slugs in the tuning coil. He further testified that the fact that the slug was broken did not impair its effectiveness and it was left in the set. On opening the set in court a broken slug was found, and then Ray positively identified the set in court as the one he had adjusted in September or October 1960. On cross-examination he stated that he did not know that the broken slug in the set in court was the one he broke, and his testimony fixing the date of the repairs as parior to December 2, 1960, the date of the alleged theft of the set, was only from memory and was not supported by any tangible evidence.

The Galindos made no charge for the adjustment for the alleged reason that the defendant was going to assist them in establishing a bail bonding business. No record was made of the transaction.

Alfonso testified that he was present when the set was adjusted and knew of the broken slug. He fixed the time as August 1960. He admitted that broken slugs in TV sets were not uncommon and that broken slugs might well serve their purpose.

The testimony is highly contradictory. If one believes the material parts of the testimony of the People's witnesses, so doing precludes one from believing the material parts of the testimony of...