Ciccarelli v. People

• Decision Date: 14 August 1961
• Docket Number: No. 19313,19313
• Citation: 147 Colo. 413,364 P.2d 368
• Parties: Antonio CICCARELLI, Plaintiff in Error, v. PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 368

364 P.2d 368

147 Colo. 413

Antonio CICCARELLI, Plaintiff in Error, v. PEOPLE of the State of Colorado, Defendant in Error.

No. 19313.

Supreme Court of Colorado, En Banc.

Aug. 14, 1961.

Rehearing Denied Sept. 11, 1961.

Ben Klein, Denver, 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.

DOYLE, Justice.

Plaintiff in error, herein referred to as defendant, was charged in the district court of Boulder County with the burglary of the Fred Harsch Lumber Co. of Longmont, Colorado. Following a jury verdict of guilty, the court sentenced him to a term of not less than two nor more than seven years in the Penitentiary. Review of this judgment is here sought.

The information charged that the defendant did '* * * break and enter the office, shop and warehouse of Fred Harsch, with intent then and there to commit therein the crime of larceny.'

The evidence, which was for the most part circumstantial, established that there was an attempted burglary at the Draper Drug Store at Loveland, Colorado on September 29, 1958, at about 11:30 P.M. Paul Draper, the owner of the store, had been working after closing when he heard a noise on the roof. Upon going outside he saw a ladder, which had been used by a construction crew, leaning against the building. Investigation revealed the some of the gravel on the tar and gravel roof had been chipped away. Draper saw a man in the alley whom he later identified as DeGesualdo, who afterwards was arrested riding in defendant's car. Defendant and DeGesualdo had been seen together in Longmont, Colorado, some twelve miles from Loveland a few hours earlier. They were driving a light colored Jaguar which had Utah license plates. This same vehicle was seen in Loveland by police there at about 11:15 P.M. Investigation on the roof of the Draper Drug Store revealed the presence of two hammers, a chisel and plier in a blue bag.

The Loveland police ordered a pick-up on the car in question and shortly thereafter defendant was apprehended in company with DeGesualdo at Frederick, Colorado. Upon being questioned defendant denied that he had been in Loveland that evening.

The following morning the burglary of the Fred Harsch Lumber Co. of Longmont, Colorado was discovered. The burglary had been accomplished by means of a hole in the ceiling 18"' by 24"' in diameter. The safe had been broken open and the sum of $203.76 had been taken from it. This consisted primarily of 1 roll of quarters ($10), 1 roll of dimes ($5), 2 rolls of nickels ($4), 1 roll of pennies (.50), $25 in one dollar bills with a blue rubber band around them, and $130 in five, ten and twenty dollar bills. Also missing was some hardware having the lumber company's identifying code, a change bag, deposit book and some cigarettes of a particular brand.

The tools which were found on the roof of the Draper Drug Store were shown to be the same tools which had been stolen from the lumber company apparently earlier in the evening. After the Longmont and Loveland police had coordinated information, the defendant was taken to Longmont for questioning. It appeared that his clothing was covered with a type of hair which resembled that which was used as insulation in the ceiling of the lumber company. According to testimony of the Longmont chief of police, corroborated by one of the officers, defendant first denied participation in the lumber company burglary, but later (after consulting an attorney) admitted orally that he had broken in and had taken the tools and money. He admitted that a drill found on the drug store roof was his property. A chuck key found in DeGesualdo's pocket belonged to the drill. Defendant admitted at the trial that he had directed the officers to the place in a search for the missing money bag. In an effort to find it they went to Firestone, but were unable to find it. Investigation of the glove compartment of defendant's car the day after his arrest revealed the presence of five rolls of money corresponding to that which had been taken, together with a blue rubber band and some cigarettes of the brand which had been taken from the lumber company.

At the trial defendant repudiated his former statement to the police and maintained that he had made no such incriminating confession or admission. Testimony on his behalf explained the presence of the coins in the glove compartment as having been given to him by his grandfather. He testified that he had placed the coins in the glove compartment of his automobile.

Instruction No. 5, which was given to the jury over the objection of the defendant, reads as follows:

'You are instructed that exclusive and unexplained possession of property recently stolen raises the presumption that he who is in such possession is guilty of the theft; the burden of explaining such possession is upon the defendant, and his explanation must be sufficient to raise in your mind a reasonable doubt as to his guilt. If you believe from the evidence in this case that the property in question was stolen from the possession of the owner thereof and taken in the commission of a burglary and that recently thereafter the same, or any part thereof, was found in the exclusive possession of the defendant, this in law raises a presumption that the defendant stole such property and committed such burglary.'

There was also an instruction given, although not requested, dealing with similar transactions. Defendant also excepted to this instruction. It reads:

'There is some evidence with reference to other transactions than that charged in the information. This evidence is admissible only as bearing on the question of whether or not the defendant had a plan or design to produce a result of which the act charged in the information was a part, and you can consider such evidence for no other purpose. The defendant cannot be tried for or convicted of any offense not charged in the information.'

Defendant's first objection to the form of the information was at the conclusion of the people's case. His counsel then pointed out that the information failed to correspond with the wording of the statute.

Numerous alleged errors are argued in defendant's brief as grounds for reversal. Included are the following points:

1. That the information is defective in that it contained the words 'office, shop and warehouse' despite the fact that presently the statute uses the word 'building'.

2. That it was error to receive various of the exhibits, including the coins, the sample of insulation from the lumber company roof, photographs of the lumber company, tools which were found on the roof of the drug store, and the chuck key which allegedly was part of the drill. It is said that these items were insufficiently identified.

3. That the court erred in failing to treat defendant's oral statements as confessions and as such subject to proof as to voluntariness.

4. That the evidence pertaining to the Draper Drug Store at Loveland, Colorado is foreign to the transaction in the information and thus not material to those charges.

5. That the court erred in giving the instructions dealing with recent possession of stolen property and similar transactions, which instructions are hereinabove set forth.

I. Sufficiency of the Information

Although the information would appear to have been drafted with reference to the old statute, it nevertheless sufficiently describes the offense of burglary. The amendment to C.R.S. '53, 40-3-6 (1957 Supp.) had a curative purpose. It was designed to broaden, not to restrict the scope of the offense. It now declares that any 'building, railroad car, or trailer' can be the subject of a burglary. The present information alleges that the defendant did break and enter an office, shop and warehouse. Therefore, the question is whether this language served to describe the Fred Harsch Lumber Company. In answering this question, we note that our decisions hold an information to be sufficient if it advises the defendant of the charges he is facing so that he can adequately defend himself and be protected from further prosecution for the same offense. Johnson v. People, 110 Colo. 283, 133 P.2d 789; People v. Warner, 112 Colo. 565, 151 P.2d 975.

In Sarno v. People, 74 Colo. 528, 223 P. 41, it was held that the information need not charge in the exact language of the statute; that the information is sufficient if the charge is in language from which the nature of the offense may be readily understood by the accused and jury.

To the same effect are Tracy v. People, 65 Colo. 226, 176 P. 280 and Wright v. People, 116 Colo. 306, 181 P.2d 447.

In the case at bar, there is ample evidence establishing that the lumber company structure here involved was a building, and we must also conclude that an office, shop and warehouse describes a building. We are unable, therefore, to perceive that any prejudice arose from this discrepancy in wording. Consequently, this contention is of the trivial technical character which we have on numerous occasions held to be nonprejudicial. Compton v. People, 84 Colo. 106, 268 P. 577; Grandbouche v. People, 104 Colo. 175, 89 P.2d 577; Rogers v. People, 104 Colo. 594, 94 P.2d 453.

II. Recent Possession of Stolen Goods

Defendant offers two arguments in support of his position that Instruction No. 5 requires the cause to be reversed. First he maintains that it places the burden on the defendant to prove his innocence and thus violates the fundamental rule that the burden of proof is always on the people to establish guilt beyond a reasonable doubt. Van Straaten v. People, 26 Colo. 184, 56 P. 905 and Russell v. People, 125 Colo. 290, 242 P.2d 610, are relied on. Secondly, he claims that there was a lack of evidence showing that defendant had exclusive possession of property recently stolen.

First, we consider defendant's second contention, that when he was arrested he was not in...