Eachus v. People

• Decision Date: 01 June 1925
• Docket Number: 11255.
• Citation: 236 P. 1009,77 Colo. 445
• Parties: EACHUS v. PEOPLE.
• Court: Colorado Supreme Court

236 P. 1009

77 Colo. 445

EACHUS v. PEOPLE.

No. 11255.

Supreme Court of Colorado

June 1, 1925

Department 3.

Error to District Court, Mesa County; Thomas J. Black, Judge.

Joseph Eachus was convicted of horse stealing and denied a new trial, and brings error and applies for supersedeas.

Supersedeas denied, and judgment affirmed.

Elam B. Underhill, of Grand Junction, for plaintiff in error.

William L. Boatright, Atty. Gen., and Jean S. Breitenstein, Asst Atty Gen., for the People.

SHEAFOR J.

The plaintiff in error was convicted in the district court of Mesa county of the crime of horse stealing and sentenced to the penitentiary for a term of not less than one year nor more than thirteen months. He brings the case here and applies for a supersedeas. The defendant's motion for new trial, which was overruled, contains two grounds, viz.: (1) That the verdict of the jury was contrary to the evidence and (2) newly discovered evidence. A number of defendant's assignments of error cannot be reviewed here because they relate to matters which were not raised in the motion for new trial, nor in any manner brought to the attention of the trial court. The only matters which we can consider, under rule 8, are those mentioned in the motion for new trial. State ex rel. v. Nelson, 75 Colo. 98, 100, 223 P 1086.

1. Defendant's contention that the verdict is not supported by the evidence cannot be sustained. He cites Piel v. People, 52 Colo. 1, 119 P. 687, as the controlling case to sustain his contention. The evidence there was entirely different from the evidence here, and that case can have but little weight in the consideration of the facts disclosed by the record now before us.

In the case at bar there was evidence tending to show that Parks the complaining witness, was the owner of the colt which the defendant was charged with stealing. Parks testified that he was the owner of the colt and of its mother, described the colt, and further testified that the defendant had had it in his possession for the past 18 months, and that defendant had said that he was going to get it; that about a year before the trial he saw it in Roehms' pasture. Roehms is a brother-in-law of defendant. Several witnesses testified defendant had stated to them that he stole the colt from Parks. There was testimony corroborating Parks that the colt was seen in Roehms' pasture, and that Parks had taken it to the S-Cross ranch, from which it was afterward taken by defendant.

Hammer testified that he had known the horse ever since it was a colt, and that he was absolutely sure it belonged to Parks. Fessler testified that defendant told him he had branded the colt and that it belonged to 'One Eye'; that by 'One Eye' witness supposed defendant meant Parks; that Parks went by that name quite often in the mountains; that defendant said to witness that 'One Eye' had been blaming him all of his life for stealing from him, and that if he was going to get the blame he might as well have a little of the game; that from the way defendant talked it did not seem to the witness that what defendant said was intended as a joke. Malone testified that defendant told him he stole the colt, and that witness had seen the colt in Roehms' pasture. The defendant admitted that he had the colt in his possession, but claimed that he was the owner of it and owned its mother at the time the colt was foaled. He testified that he did not steal the colt, but admitted that he had told the various witnesses who testified that he had stolen it, that he did not know why he made those statements, except that he thought it was none of their concern where he got it.

Defendant, when asked as to whether he wanted the jury to believe that the state's witnesses were mistaken, answered that the jury could use their own minds and their own judgment about believing them. There was testimony corroborating defendant's evidence that he was the owner of the colt. The defendant having admitted the possession, the only questions involved were as to the ownership and larceny of the animal.

It was the exclusive province of the jury to determine the weight and sufficiency of the evidence and to pass upon the credibility of the witnesses. The record presents conflicting evidence, on the questions suggested, and sufficient to support the verdict. In the light of the repeated decisions of this court, we cannot disturb the verdict. Cronin v. Hoage, 71 Colo. 194, 205 P. 271; Patton v. People, 74 Colo. 322, 324, 221 P. 1086; State ex rel. v. Nelson, supra, 103, 223 P. 1086.

We can say here, as was said in the Cronin Case, that:

'There was evidence from which the jury might reasonably have found, as they did, though there was other evidence from which a contrary inference might have been drawn. Under that condition we cannot disturb the verdict.'

2. Newly discovered evidence: Motions for new trials based upon newly discovered evidence ordinarily are not favorably regarded. Edwards v. People, 73 Colo. 377, 394, 215 P. 855. It was within the discretion of the court to grant or refuse the motion. Wiley v. People, 71 Colo. 449, 451, 207 P. 478. We cannot interfere with the ruling of the court unless there was a gross abuse of discretion in denying the motion, and it does not appear that there was.

There is some doubt as to whether this may be considered as newly discovered evidence. On rebuttal Parks testified that the colt, which defendant claimed to be the colt of the mare Jule, was traded by defendant to one Edwards known as 'Easy Bill,' and by him traded to Parks. Parks was corroborated in this statement by Byler. The first time defendant claimed surprise by reason of the admission of this rebuttal testimony was...