Davis v. People

• Court: Colorado Supreme Court
• Citation: Davis v. People, 490 P.2d 948, 176 Colo. 378 (Colo. 1971)
• Decision Date: 22 November 1971
• Docket Number: No. 23678,23678
• Parties: Jeff DAVIS, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.

Page 948

490 P.2d 948

176 Colo. 378

Jeff DAVIS, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.

No. 23678.

Supreme Court of Colorado, In Department.

Nov. 22, 1971.

Robert L. McDougal, Denver, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Aurel M. Kelly, Asst. Atty. Gen., for defendant in error.

FRANCIS W. JAMISON, County Judge Retired. ^*

Plaintiff in error, Jeff Davis, was convicted by a jury of theft under 1967 Perm.Supp., C.R.S.1963, 40--5--2, and conspiracy to commit theft under C.R.S.1963, 40--7--35.

Jeff Davis and Allen Sword were charged as codefendants with the crimes of theft and conspiracy to commit theft. Sword pleaded guilty and was the chief prosecution witness against plaintiff in error Davis. The prosecution presented only three witnesses.

Wayne Ellis testified that he owned a 1953 yellow Harley-Davis motorcycle. On the night of September 11, 1967, the motorcycle was parked in front of his apartment at 1243 Washington Street, Denver, Colorado. It did not need a key to start it. When he went to get it from its parking place on September 12, 1967, it was missing. He reported to the police that his motorcycle had been stolen.

Detective Radovich testified that Allen Sword on or about February 15, 1968, turned over to him a dismantled 1953 yellow Harley-Davis motorcycle. There was missing a seat, front tire and windshield.

Allen Sword testified that on the evening of September 11, 1967, he and Jeff Davis were riding around together and saw the motorcycle parked at the curb between 12th and 13th Avenues on Washington Street, Denver, Colorado. Sword remarked that it would be easy to take the motorcycle and Davis agreed; but Sword did not have any place where they could take it to dismantle it. Davis made arrangements with a friend, Richard Facinelli, to use the friend's garage. Later that night, Facinelli drove Sword and Davis back to where the motorcycle was located. Sword stated that he and Davis 'walked up the alley and went in between the parking lot and the houses and went over to the motorcycle and just stood by and watched.' The motorcycle did not require a key to start the ignition, so Sword started it and drove it away. Davis returned to the car and he and Facinelli followed Sword to Facinelli's house, where they stored the motorcycle in the garage for the rest of the night. The next day, Sword and Davis dismantled the motorcycle and sometime later, Davis received a tire, the windshield, and the seat. Sword further testified he later moved the dismantled motorcycle to various locations with the help of the Frank Phelps and eventually, in February (1968) turned the dismantled motorcycle over to Detective Radovich, minus the parts Davis had received.

Thereafter, the defendant presented his evidence:

Davis, the defendant, categorically denied his participation in the crime. He testified that he was not with Sword on September 11, 1967 at any time. Rather, he spent the night with Facinelli at the latter's home repairing Facinelli's automobile. Davis did see Sword on September 12, 1967, around noon, when Sword rode up to Facinelli's house on a yellow motorcycle. Mrs. Facinelli, Richard's wife, asked Sword where he got the motorcycle and he replied he had stolen it. Thereupon Mrs. Facinelli told him to get it out of there and take it back where he got it.

Among other witnesses, the defense presented Richard Facinelli, Mrs. Facinelli, and Frank Phelps. The Facinellis testified essentially the same as Davis and Frank Phelps supported Davis' version, and further testified that he had never helped Sword transport a dismantled motorcycle, but had on two occasions helped Sword transport a three wheel cycle that Sword owned.

I.

The main thrust of defendant Davis' assignment of error is that the testimony of the accomplice in this case was not sufficiently clear and convicing, standing alone, to establish guilt beyond a reasonable doubt, and the trial court should have granted defendant's motion for acquittal at the end of all the evidence. The prosecution concedes that this is a case of conviction based on the uncorroborated testimony of an accomplice. Both the defendant and prosecution agree that the rule in such cases was correctly enunciated by the trial court in its instruction No. 13:

'While you may convict upon the uncorroborated testimony of an accomplice, still you should act upon his testimony with great caution, subjecting it to a careful examination in the light of the other evidence in the case, and you are not to convict upon such testimony alone unless satisfied, after such careful examination, of its truth. If not so satisfied you cannot convict without such corroboration of the same as will convince you beyond a reasonable doubt, and in the absence of such corroboration, your verdict should not be guilty.

'Corroborating evidence means such evidence, either direct or by proof of surrounding facts and circumstances, as tends to establish the participation of the defendant in the commission of the offense.'

The above instruction correctly states the Colorado rule concerning uncorroborated testimony of an accomplice. Mendelsohn v. People, 143 Colo. 397, 353 P.2d 587; Schechtel v. People, 105 Colo. 513, 99 P.2d 968. There can be no question that this was a case of conflicting evidence. Either Sword's version was true or Davis' version was true. The two versions are...