Clews v. People

• Decision Date: 17 December 1962
• Docket Number: No. 19903,19903
• Citation: 151 Colo. 219,377 P.2d 125
• Parties: Kenneth CLEWS, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 125

377 P.2d 125

151 Colo. 219

Kenneth CLEWS, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.

No. 19903.

Supreme Court of Colorado, In Department.

Dec. 17, 1962.

Richard N. Graham, Englewood, for plaintiff in error.

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

FRANTZ, Justice.

Clews was charged with and found guilty of burglary, larceny, conspriacy to commit larceny, and bribery. A verdict of not guilty was returned to the charge of conspiracy to commit burglary. Sentences of two to four years on each count were imposed, to run concurrently. Execution of these sentences was suspended by the entry of an order for probation for a period of five years.

Clews ascribes error to the action of the trial court: (1) in admitting evidence of other transactions; (2) in permitting the Sheriff to testify concerning the accuracy of the contents of a statement given to him by Clews; (3) in refusing to direct a verdict of not guilty of the charge of bribery, (4) of the charge of burglary, (5) of the charges of conspiracy to commit burglary and conspriacy to commit larceny; (6) in rejecting tendered instructions on the defendant's theory of the case; (7) in instructing improperly regarding the date upon which the alleged incident occurred; and (8) in not protecting Clews from the action of the prosecutor in calling an alleged coconspirator who took refuge behind the Fifth Amendment.

1. Other transactions. Testimony concerning two similar transactions was received in evidence over the objection of Clews. The time of their occurrence is shrouded in some uncertainty. In their brief, the People merely say that Clews was involved in two similar transactions 'within the several months immediately surrounding the Reeves' Conoco incident.'

It is the general rule that, on the trial of one accused of crime, proof of separate and distinct transactions, even of a similar nature, is inadmissible. To this rule there are exceptions, but, in order to make evidence of other transactions admissible, it must appear that the evidence offered falls within one of the recognized exceptions.

Time and the character of such collateral acts are important in the determination of their admissibility. The evidence must show that they occurred at or about the time of the act in question, and there must be a substantial degree of similarity between them. Kostal v. People, 144 Colo. 505, 357 P.2d 70. In practise, the proximity in point of time and the degree of similarity is largely left to the discretion of the trial court. Sall v. State, 157 Neb. 688, 61 N.W.2d 256; see Perry v. People, 116 Colo. 440, 181 P.2d 439. If the trial court entertains a real doubt as to whether there is present the necessary proximity of time or degree of similarity, it should exclude evidence of other transactions. Hawkins v. State, 224 Miss. 309, 80 So.2d 1.

From time to time this court has expressed itself on the matter of exceptions to the rule that evidence of misdeeds other than the one for which the accused is being tried is inadmissible. These exceptions are to be cautiously applied, since their indiscriminate use probably could result in prejudice to the defendant. Stull v. People, 140 Colo. 278, 344 P.2d 455.

Admission of such collateral conduct has been sanctioned when it tends directly to establish the particular crime. Its admission has usually been approved when it proves motive, criminal intent, guilty knowledge, where such from elements of the offense; or when it proves scheme, design or plan embracing the commission of two or more crime so relaed to each other that proof of the one tends to establish the others; or when it proves identity or the absence of mistake or accident.

Admissibility of evidence to establish the exception may turn on the posture of the case. There may be instances where order of proof may be involved. Thus, such evidence should not be submitted in anticipation of a defense.

In this case there is no question of the similarity of one of the transactions. Except for a difference in the party injured and the items taken, the transaction is a facsimile of the one of which Clews here stands charged. The other transaction is just a degree less similar. And we do not believe the trial court used its discretion unwisely on the question of time. Since the formula set out in Stull v. People, supra, was scrupulously followed in this case, we hold that this assignment of error is not well taken.

2. Sheriff's testimony. The Sheriff testified that Clews admitted the affair with which he was charged and the other transactions. He related how Clews, after fully confessing, later answered interrogation before a stenographer but refused to sign the transcription thereof. This transcription was marked Exhibit 'A', and the Sheriff testified that, in his opinion, it was accurate. Objections made to the Sheriff's testimony regarding the accuracy of the transcription were overruled.

This exhibit was offered in evidence, and an objection to its admission sustained. It is said that the Sheriff's opinion concerning its accuracy was prejudicial to Clews; that such prejudice arises from an impression the jurors may have formed that it contained damaging admissions made by Clews. In short, preliminary evidence which fails to form the foundation for acceptance of the accused's statement is attacked as prejudicial.

Proper preliminary proof is necessary in many instances before certain evidence may be received. It would be dangerous doctrine to hold that such preliminary proof affords ground for error in those cases where the trial court, in its discretion, determines it to be inadequate.

Trial courts are vested with discretion in passing on the preliminary proofs essential to the reception of certain kinds of evidence, such as confessions and admissions. Moya v. People, 88 Colo. 139, 293 P. 335; Mitchell v. People, 76 Colo. 346 232 P. 685, 40 A.L.R. 566. Identification and voluntariness are the usual predicates for the introduction in evidence of confessions. If the trial court, in its discretion, believes one or the other of these bases has been inadequately shown, it should refuse admission, and in so doing, the trial court does not create error requiring reversal, even though the jury has heard the preliminary evidence concerning these predicates.

3. Bribery. Clews was found guilty of larceny, burglary, and conspiracy to commit larceny. The jury must have found and determined that he participated in these crimes. Such finding would exclude commissions of bribery in connection with the transaction out of which the larceny, burglary, and conspiracy arose. And it should be noted that there was no other transaction shown to which bribery could be referred.

In law one cannot bribe himself. 'To constitute bribery, the act of at least two persons is essential,--that of him who gives and him who receives. The minds of the two must concur * * *.' Newman v. People, 23 Colo. 300, 47 P. 278. In relation to the transaction involved, we have a situation of mutual exclusion: a conviction of bribery would have excluded larceny, burglary, and the conspiracy; and the converse would be true.

4 and 5. Directed verdict. What we recently said in Jordan v. People, 1962, 151 Colo. ----, 376 P.2d 699, is equally appropriate to these contentions:

'To have directed a verdct of acquittal in this case, in the face of substantial evidence supporting guilt, would have been folly. The trial court judiciously denied the motion for such relief.'

There was direct evidence, and there was evidence from which inferences could be drawn, implicating Clews in the commission of the crimes of larceny, burglary, and conspiracy to commit larceny, of which he was accused. Under the circumstances, the trial court properly left the question of guilt to the jury for resolution.

On the question of insufficiency of the evidence to support the charge of conspiracy, Clews advances the novel theory, as we understand it, that a conspiracy based solely upon circumstantial evidence loses substance where admitted participants describe the activities of the transaction but never testify that the accused 'participated in, or was aware of their plan' to do the illegal act. This theory does not comport with the law of criminal conspiracy.

If the participants had denied that accused 'participated in, or was aware of their plan' to do the illegal act, it would still have left a jury question of circumstantial evidence versus their explicit denials. If they had disclosed accused's participation or awareness, we would have a case of circumstances corroborating their testimony--but it would still be the jury's problem to evaluate.

Concerning the comparative strength of circumstantial and direct evidence, the author says in 23 C.J.S. Criminal Law § 907, p. 559 that 'circumstantial evidence is intrinsically like direct evidence, and not inferior thereto. It is not incapable of producing a high degree of proof equal to that derived from direct evidence.' Such is our view in civil cases, Victor v. Smilanich, 54 Colo. 479, 131 P. 392, Ward v. Teller Reservoir & Irrigation Co., 60 Colo. 47, 153 P. 219, and we see no reason for adopting a different view in criminal cases.

It is asserted that Clews, as a patrolman, had a lawful right to enter the building...