Foster v. People
| Decision Date | 02 February 1914 |
| Citation | 139 P. 10,56 Colo. 452 |
| Court | Colorado Supreme Court |
| Parties | FOSTER v. PEOPLE. |
Rehearing Denied March 2, 1914.
Error to District Court, Jefferson County; Charles McCall, Judge.
Frank Foster was convicted of larceny, and he brings writ of error. Affirmed.
Geo. B. Campbell, of Denver, for plaintiff in error.
Fred Farrar, Atty. Gen., Frank C. West and Norton Montgomery Asst. Attys. Gen., for the People.
Plaintiff in error, whom we shall hereafter refer to as defendant, was convicted of the larceny of a team of horses wagon, harness, and other personal property, and sentenced to a term in the penitentiary. On his behalf it is urged, first that the testimony is insufficient to sustain his conviction, and, second, that erroneous instructions were given.
The testimony on behalf of the people was that during the night of August 18th the property described in the information was stolen from the ranch of the owner in the vicinity of Golden, that the following day about 11 a. m. this property was left by defendant at a livery stable in Watkins, 20-odd miles east of Denver, and that the next day he told one Rutherford where the property could be found. Rutherford also testified that a roll of bedding found in the wagon at Watkins was the property of defendant, and that he had delivered it to him at his home in Denver a few weeks prior to the date the larceny was committed. The keeper of the stable at Watkins and his brother identified the defendant as the person who had left the property at Watkins; but it was brought out at the trial that the liveryman, at the preliminary examination, was unable to identify the defendant as the person who had left the property with him. Neither of these witnesses was able to describe the clothing worn by defendant at the time they testified he was at Watkins. The defendant, as a witness in his own behalf, denied taking the property, denied that he was at Watkins on the 19th, denied he told Rutherford where the property could be found, and testified that he was at home in North Denver during the night of the 18th and all day of the 19th. He also denied that he owned the bedding, or that it had ever been delivered to him by Rutherford. His wife testified that he was home during the night of the 18th and until 9 or 10 o'clock the morning of the 19th. Two other witnesses testified they saw the defendant at his home in Denver on the evening of the 18th and on the morning of the 19th from about 8 to 10 o'clock. To support the testimony of these witnesses, memoranda was introduced purporting to show that one of them had loaned the defendant $2 on August 19th, and defendant's wife also testified that the roll of bedding found in the wagon was not his property, and had never been in his possession.
From this résumé it appears there was a sharp conflict in the testimony, and that there were circumstances necessary to consider in determining its weight and credibility. It was the special province of the jury in such circumstances to determine the facts. To this end they had to pass upon the credibility of the witnesses, and decide who told the truth. If the property was stolen the evening of the 18th, and left the next morning by the defendant about 11 o'clock at Watkins, some 30-odd miles from the place where stolen, the natural inference would be that he was guilty of the larceny charged; while, on the other hand, if he was home the night of the 18th and the morning following until about 9 or 10 o'clock, he was not guilty of the theft. So that from the state of the testimony it was for the jury to determine the facts from the conflicting statements of the witnesses. Should we undertake to say that the witnesses who identified the defendant as the person who left the stolen property at Watkins or the witness who identified the bedding found in the wagon should not be believed, and that the testimony on behalf of defendant that he was at home during that period, which would render it impossible for him to have committed the theft, should be taken as true, we would be usurping the functions of the jury, who had the advantage of hearing the witnesses, and noticing their demeanor when testifying--aids in determining their credibility of which we are deprived by mere review of the record.
If the jury believed the evidence on behalf of the prosecution, as they evidently did, no rational conclusion could be reached, except that the defendant was guilty. This testimony was controverted; but the jury were the judges of the credibility of the witnesses, and, as there was sufficient substantial testimony to support a finding of facts necessary to declare the defendant guilty, their verdict will not be disturbed on review.
A portion of an instruction given is as follows:
The objection urged to this part of the instruction is that the jury were thereby relieved from the obligation of their oath, and were advised that they were at liberty to find him guilty, based upon their belief as men, regardless of the fact that the testimony might not be sufficient to establish his guilt beyond a reasonable doubt. Preceding the part of the instruction above quoted, and as a part thereof, the court advised the jury to the effect that a reasonable doubt is a doubt naturally arising from a fair and impartial consideration of all the evidence in the case, and that, if the jury could say, after considering all the evidence, that they had an abiding conviction of the truth of the charge, they were satisfied beyond a reasonable doubt. Following the instruction objected to, the jury were advised that the law presumed the defendant innocent until the contrary was proven, and that this presumption must continue and prevail in the minds of the jury until they were satisfied from the evidence beyond all reasonable doubt of his guilt, and, acting on this presumption, they should acquit the defendant, unless constrained from the evidence to find him guilty. The court also advised the jury to the effect that the law does not require the defendant to prove himself innocent, but that the law imposed upon the prosecution the obligation to prove him guilty to their satisfaction beyond all reasonable doubt, and, unless this has been done, the jury should acquit. The jury were further advised that: 'The evidence, to convict the accused, must not merely be beyond all reasonable doubt consistent with the hypothesis of his guilt, but it must also be beyond all reasonable doubt inconsistent with any hypothesis of innocence that can be reasonably drawn therefrom.'
Instructions must be considered as a whole, and, applying this rule, it is clear that the jury were instructed that they could not find the defendant guilty, unless they were convinced from the evidence beyond a reasonable doubt that he was guilty as charged. They jury knew from their oath that they were to render a verdict according to the evidence and the law as given them by the court. They were repeatedly advised that they could not find the defendant guilty, unless satisfied from the evidence beyond a reasonable doubt...
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