Gonzales v. People

• Decision Date: 14 December 1953
• Docket Number: No. 17260,17260
• Parties: GONZALES v. PEOPLE.
• Court: Colorado Supreme Court

Page 508

264 P.2d 508

128 Colo. 522

GONZALES v. PEOPLE.

No. 17260.

Supreme Court of Colorado, En Banc.

Dec. 14, 1953.

John W. Elwell, Matt J. Kikel, Pueblo, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., Frank A. Wachob, Deputy Atty. Gen., Norman H. Comstock, Asst. Atty. Gen., for defendant in error.

ALTER, Justice.

Henry Joe Gonzales, alias Moola A. Gonzales, was found guilty of a violation of the provisions of subdivision 13, section 28, chapter 58, '35 C.S.A., as amended by chapter 157, page 357, S.L.Colo.1951, and section 29 of said chapter, as amended by chapter 39, page 106, S.L.Colo.1952, making it unlawful to have in his possession a narcotic drug, to wit: Cannabis Sativa L, commonly known as marijuana, and was sentenced to a term in the penitentiary. He brings the cause here by writ of error seeking a reversal of the judgment.

The evidence on behalf of the people briefly is: Shortly before defendant's arrest he and one Marge Roth rented a room in Pueblo, giving their names as Mr. and Mrs. Ortego. They occupied the room until defendant's arrest on the early morning of April 23, 1953, when two police officers were ordered to apprehend defendant and bring him to police headquarters for questioning regarding a disturbance at a night club. While defendant was being questioned by the captain of police he consented to a search of his room and was accompanied by two officers for the purpose of ascertaining whether defendant had in his possession marijuana. The room was locked, and defendant had no key thereto in his possession. The door of the room was pried open either by defendant or the officers. While defendant was in his room the officers found fifteen marijuana cigarettes, some of which were concealed in the cookstove and some were found concealed in a magazine in a dresser drawer. The officers found defendant's clothes in the room, but, so far as the record discloses, none of his alleged wife's clothing was found in the room except a blouse and stockings. After said search and the discovery of the marijuana therein, defendant stated that he did not know that the marijuana was there; however, he did not testify at the trial.

The landlady testified that defendant's alleged wife paid the rent and registered for herself and defendant; that defendant was present and stated that because of an injured hand, which was then bandaged, it was impossible for him to write. She further testified that both defendant and his alleged wife used the room, and that defendant had lost the key to the room. She terminated the tenancy after defendant's arrest, and it was defendant who claimed, and was paid, the refund due.

The only witness called for defendant was the woman who had registered as his wife. She testified that at some time during the night of April 22 she was so intoxicated that she could not definitely recall all of the incidents of the evening, but that in her intoxicated condition she had a desire for some marijuana for her personal use. Somewhere 'downtown', perhaps in a tavern, she met a colored man and purchased the marijuana found by the officers in their search of defendant's room, paying $15 for the same. She found her way, in some uncertain manner, to the room and hid the marijuana in the places where the same was found by the officers. She further testified that defendant neither knew of her possession or her concealment of the marijuana.

On her cross-examination she was asked, 'First you called the police to protect you from him [defendant]? A. I wanted protection and they locked me up. Q. You went there for protection? A. Sure, but what protection did I get--I got locked up and paid $25.00 to get out the next morning.' The record discloses that while the witness was in jail defendant was in custody also. Nevertheless the witness testified that defendant stayed with her the night of April 22 and left the room at 6:30 o'clock on the morning of April 23 to go to his employment.

On the trial the court refused to give three instructions tendered by defendant's counsel, and no objections were interposed to the court's instructions to the jury.

The assignments of error may be summarized thusly: 1. Refusal of the court to direct a verdict; 2. refusal to give tendered instructions.

1. The evidence in the case was largely circumstantial, and before defendant could be adjudged guilty, it was necessary that the circumstances disclosed by the evidence be consistent with his guilt and exclude every reasonable hypothesis of his innocence. The court, in its instruction No. 8, imposed a greater duty upon the people than the law required for in it the jury was instructed, '* * * that it is necessary for the prosecution to show, under all circumstances, as a part of the People's case, that there is no innocent theory possible which will, without violation of reason, accord with the facts proved in the case.' Further in the instruction the jury was advised that 'Circumstances can never be presumed. Each fact making up the chain of circumstances must be proved beyond a reasonable doubt. To authorize a conviction upon circumstantial evidence alone, the circumstances must not only be in harmony with the guilt of the accused, but they must be of such a character that they cannot reasonably be true in the ordinary nature of things and the defendant be innocent. If there is any one single fact appearing in the evidence to the satisfaction of the Jury which is inconsistent with the...