Burns v. People

• Decision Date: 23 October 1961
• Docket Number: No. 19776,19776
• Citation: Burns v. People, 365 P.2d 698, 148 Colo. 245 (Colo. 1961)
• Parties: James Anthony BURNS, etc., Plaintiff in Error, v. PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 698

365 P.2d 698

148 Colo. 245

James Anthony BURNS, etc., Plaintiff in Error, v.PEOPLE of the State of Colorado, Defendant in Error.

No. 19776.

Supreme Court of Colorado, En Banc.

Oct. 23, 1961.

Charles D. Pierce, Pueblo, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., J. F. Brauer, Asst. Atty. Gen., for defendant in error.

DAY, Justice.

We will refer to the plaintiff in error Burns either by name or as defendant, and the People of the State of Colorado as the People.

This writ of error is directed to a conviction and sentence after jury verdict in the district court of Jefferson County.Burns was convicted on one count of receiving stolen goods and on three counts of previous conviction of felony under the provisions of the commonly called Habitual Criminal Act, C.R.S. '53, 39-13-1.Defendant was sentenced to life imprisonment under the statute pertaining to habitual criminals.What sentence was imposed on account of receiving stolen goods does not appear from the record, but there is a court order that the sentence on that charge run concurrently with the life sentence.Motion for new trial was denied.

Although not in the exact order presented in the summary of argument, the claimed errors are as follows:

1.That the evidence was insufficient to submit the cause to the jury on the substantive crime of receiving stolen goods and that the court, therefore, should have directed a verdict of not guilty in favor of the defendant.

2.That although it be concluded that the trial court was correct in ruling the evidence sufficient to submit the case to the jury, such evidence consisted entirely of the uncorroborated testimony of two accomplices and the jury was in no manner cautioned by the instructions from the court with reference to this type of evidence.

3.That there was no competent evidence of the market value of the goods at the time they were alleged to have been received; that, therefore, an essential element to constitute the crime a felony was lacking.

4.That the court erred in admitting evidence of a transaction other than the one charged in the information.

5.That one of the previous convictions, as alleged in count No. 6 in the information, would not, if committed in the State of Colorado, be a felony, and that there was no proof that the offense was a felony in the State of Nebraska at the time of the alleged conviction there.

The evidence on the charge of receiving goods that had been stolen in a burglary, with full knowledge that they had been so obtained, was presented through two admitted burglars.They testified that they had met at Burns' home where he suggested to them that certain items at the C. F. and R.Steel Fabricating Company, in Jefferson County, could easily be obtained in a burglary.They said that the plan of the burglary was laid out by all three with Burns as the 'mastermind.'One of the witnesses said that he was taken to the plant, was shown the building, the location of the lights, and a convenient place to cut through the fence; that on the night of the burglary Burns provided them with wire cutters which they used to cut a hole through the fence.Once inside the fenced yard they broke the lock on the building and went inside where they took various grinders, drills, acetylene torches and hoses, all of which the defendant had previously indicated he wanted and would buy.They told of taking the items to defendant's place, loading them into his jeep and receiving payment of $60 with the promise of further payment if the items brought a favorable price when re-sold.Although the defendant was not charged in connection with any other transaction, the same two admitted participation in the burglary of the steel plant and related other burglaries which they said were suggested by Burns in which they obtained tires and a number of TV sets which they also sold to Burns.

The trial judge carefully admonished the jury that this testimony was admitted only for the purpose of showing that Burns had a scheme or design or plan.

The testimony revealed that Burns was in the tire and junk business, dealing in used merchandise such as the witnesses sold to him.It was the theory of the People that Burns stocked his business with these items through the transactions enumerated.Another witness, not connected with the burglary of the fabricating plant, was called to testify about other and different burglaries in which he had participated, and for the spoils of which he found Burns a willing buyer.

On this evidence defendant claims that since the state witnesses were the admitted thieves of the stolen property allegedly received by the defendant, they were accomplices as to the crime charged.Defendant thus asserts on the basis of this premise that it was error to submit the case to the jury on the uncorroborated testimony of these accomplices.He contends that such testimony is insufficient to support a conviction unless corroborated by other competent evidence which, it is asserted, was lacking in this case.

On the question whether the witnesses were accomplices, there are two cases in Colorado arriving at diametrically opposed views.The first case is Newman v. People, 55 Colo. 374, 135 P. 460.There, on an almost identical factual situation, it was held that the receiving of stolen goods, knowing them to have been stolen, is a distinct crime from the original larceny of the property, and the party committing the larceny is not the accomplice of one who purchased the goods from him knowing them to have been stolen.At the time of this decision the following authorities were cited in support of the holding: 12 Cyc. 447;People v. Cook, 5 ParkerCr.R., N.Y., 351;Springer v. State, 102 Ga. 447, 30 S.E. 971;State v. Kuhlman, 152 Mo. 100, 53 S.W. 416.

Four years later, in Moynahan v. People, 63 Colo. 433, 167 P. 1175, 1176, the identical question was again before the court, and, without citing the Newman case, it held, with citation of authorities, that the thief knowingly selling 'to one unauthorized to buy' is an accomplice of the buyer because the seller aids and abets in the commission of the crime.Since that time the matter has been treated in an annotation to Stephenson v. United States, 9 Cir., 211 F.2d 702, 53 A.L.R.2d 812, at page 827, and reveals the...