Garcia v. People

• Decision Date: 12 January 1931
• Docket Number: 12528.
• Citation: 295 P. 491,88 Colo. 267
• Parties: GARCIA v. PEOPLE.
• Court: Colorado Supreme Court

295 P. 491

88 Colo. 267

GARCIA v. PEOPLE.

No. 12528.

Supreme Court of Colorado, En Banc.

January 12, 1931

Error to District Court, Mesa County; Straud M. Logan, Judge.

Pauline Garcia was convicted of feloniously receiving stolen goods and she brings error.

Judgment reversed.

A. B. Crosswhite, of Grand Junction, for plaintiff in error.

Robert E. Winbourn, Atty. Gen., and E. J. Plunkett, Asst. Atty Gen., for the People.

ALTER J.

Pauline Garcia, plaintiff in error, hereinafter referred to as defendant, was tried with Jesus Costillo upon an information charging her and Costillo jointly with feloniously receiving stolen goods. The jury returned its verdict finding both defendants guilty as charged; defendant filed her motion for a new trial, which was denied, and she was thereupon adjudged guilty, and sentenced to a term of not less than three nor more than four years in the penitentiary. To review this judgment, she prosecutes this writ, assigning errors, which for the purpose of discussion, may be classified: (1) Refusal to grant separate trial as provided in section 7097, C. L. 1921; and (2) insufficiency of the evidence to support the information.

The charging portion of the information, as amended, reads: 'That Pauline Garcia and Jesus Costillo, * * * did feloniously receive * * * two black coats and eight dresses, of the value of approximately Three Hundred Dollars, personal property of Guy L. Murphy and Alice M. Murphy, a co-partnership engaged in business under the firm name of the Del-Mar Millinery, * * * then and there well knowing that the said property had been so feloniously stolen. * * *'

The court denied the unverified motion for a separate trial filed by defendant's attorney under the provisions of section 7097, C. L. 1921, in which motion was stated: 'That there is certain evidence in this case which does not relate to the reputation of this defendant, and which would be material and admissible against this defendant if tried jointly with the other defendant herein, but which evidence would be immaterial and inadmissible as to this defendant, if tried alone; that said evidence relates to the eight dresses mentioned in the information filed against said parties, regarding which property this defendant is not concerned or connected in any manner; that the only property mentioned in said information that affects or relates to this defendant is the two black coats; that if said defendants are tried jointly, during the course of the trial thereof, the evidence as to the said eight dresses would necessarily reach the ears of the jury, all of which would be prejudicial to the rights and interests of this defendant and would prevent her from having a fair and impartial trial.'

The defendant's motion for a separate trial contained no statement of facts from which a court might determine whether there was evidence against her codefendant, which was immaterial and inadmissible as against her, and the admission of which would be prejudicial to the defendant. The motion was unverified, not supported by affidavit, and did not refer to any source from which the facts might be obtained.

In Davis v. People, 22 Colo. 1, 4, 43 P. 122, it was held that a motion for a separate trial, when supported by a transcript of the evidence of a former trial in which it clearly appeared that there had been prejudicial evidence offered and received, should have been granted, and the refusal to do so was error.

In Moore v. People, 31 Colo. 336, 344, 73 P. 30, it was held that the defendant against whom the evidence was material and admissible was the joint defendant who must make the motion for a separate trial, rather than the defendant against whom the evidence was immaterial and inadmissible. This rule is expressly disapproved in Cook v. People, 56 Colo. 477, 482, et seq., 138 P. 756, 759.

In Cook v. People, supra, the only question with reference to motion for separate trial determined was who should make the motion--the one against whom the evidence was admissible and material or the one against whom the evidence was immaterial and inadmissible--and it was therein determined that the latter was the proper party to make the motion, and the rule in the Moore Case, supra, was disapproved. The question of the sufficiency of the motion was not involved; however, it was said: 'We do not wish it understood that we approve the form of the motion or the showing made in support thereof as a precedent in all cases. There was no objection made on these grounds, either here or in the court below. The severance was denied below, and the refusal to grant the motion is justified here by the Attorney General, on the ground that, under our construction of the statute in the Moore Case, Cook could not make the motion. We think the case made, both here and in the court below, sufficiently admits the existence of evidence to sustain the motion which was denied, not because it was unsupported, but because it was erroneously assumed that Cook could not make it. The trial demonstrated that the motion was well taken, * * *' In the Cook Case, supra, we adhered to the rule announced in the Davis Case, supra.

In Stone v. People, 71 Colo. 162, 167, 204 P. 897, it was expressly held that, because the record did not disclose the admission of prejudicial evidence, it was unnecessary to pass upon the sufficiency of the motion for a separate trial.

In Sarno v. People, 74 Colo. 528, 531, 223 P. 41, it was held that the record disclosed no prejudicial evidence justifying a separate trial, and, therefore, there was no error in denying the motion for a severance.

In Robinson v. People, 76 Colo. 416, 419, 232 P. 672, 673, when the sufficiency of the motion for a separate trial was directly before this court, it was said:

'The plaintiff in error's motion for a separate trial did not contain any other allegations concerning the evidence that those which are substantially in the language of the statute. It did not state what the evidence would be. No affidavit was offered or attached in support of the motion. The question to be now determined is whether the court erred in denying the motion under such circumstances.

'In Cook v. People, 56 Colo. 477, 138 P. 756, there is found in the dissenting opinion the following apt language: 'It is true that under our statute a separate trial should be granted where it is made to appear that a defendant will be prejudiced on a joint trial by the admission of evidence which is not admissible as against him but which is competent as against his codefendant. But this must be made to appear in support of a motion for a severance, not by merely stating that at the trial evidence will be admitted which is not competent as against the moving defendant but is competent against his codefendant, but the evidence which it is claimed is incompetent must be set out so that the court will be given the opportunity to determine whether or not the defendant moving for a severance may be prejudiced by testimony competent as to his codefendant but not admissible as to him. Such has been the recognized practice in this jurisdiction. Davis v. People, 22 Colo. 1, 43 P. 122; Moore v. People, 31 Colo. 336, 73 P. 30.

"In what other manner can the court be advised whether the severance should be granted?'

'The language above quoted does not conflict with the decision announced in the majority opinion in that case. The decision simply was that Cook, and not his codefendant, was the proper party to make the motion, under the circumstances there discussed. No Colorado case holds contrary to the quotation above set out. Moreover, the authorities support the view there taken. In 16 C.J. 788, it is stated in the text that--'As a rule the application for a severance must be supported by an affidavit which definitely shows a good cause therefor."

In White v. People, 79 Colo. 261, 264, 245 P. 349, we took occasion to expressly approve the rule announced in the Robinson Case, supra.

The Robinson Case, supra, outlines a rule of procedure necessary to be followed, if we are to be called upon to determine error assigned in denying a motion for a separate trial. This decision is well reasoned, and prescribed the only safe rule to be followed, and is the only logical and reasonable rule which enables a trial court to intelligently pass upon this motion. The motion in the instant case does not come within the requirements of the Robinson Case, supra, and there was no error in denying the motion.

2. The information charges the defendant and Costillo with the crime of feloniously receiving 'two black coats and eight dresses, of the value of approximately Three Hundred Dollars.' The verdict found 'the defendants Pauline Garcia and Jesus Costillo alias Joe Alvarez, guilty, in the manner and form charged in the information, and further find that the value of the property described therein is $200.00.' The evidence offered by the people may be summarized as follows: About May 25, 1929, Costillo accompanied by defendant and her daughter, rented a cabin in a section of Grand Junction quite remote from the residence of defendant, and paid a month's rent thereon; defendant and her daughter were seen at the rented cabin the morning following the rental, and were seen in the vicinity once thereafter; about two weeks after the cabin was rented the Del-Mar Millinery was burglarized, and a part of the loot consisted of two black coats and eight dresses, the property described in the information; prior to the last of June, defendant and her daughter were in the Del-Mar Millinery wearing the two black coats mentioned in the information; during the last days of June, 1929, the owner of the rented cabin discovered some dresses and other property in the...