Gray v. People, 18751
| Decision Date | 13 July 1959 |
| Docket Number | No. 18751,18751 |
| Citation | 139 Colo. 583,342 P.2d 627 |
| Parties | Benjamin GRAY, Plaintiff in Error, v. PEOPLE of the State of Colorado, Defendant in Error. |
| Court | Colorado Supreme Court |
Mellman, Mellman & Thorn, Denver, Loesch & Kreidler, Montrose, for plaintiff in error.
Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., John W. Patterson, Asst. Atty. Gen., for defendant in error.
Plaintiff in error, defendant in the trial court, was charged with the larceny of six calves each belonging to a different person. He is here by writ of error seeking to reverse a judgment of conviction and sentence to the state penitentiary entered by the court after verdicts of guilty returned by the jury. We will refer to him as defendant or by name.
Defendant assigns eight grounds of error. Three refer to instructions given to the jury and to the court's refusal to give an instruction tendered by the defendant. Other claimed errors upon which we will comment are: 1. That the information was improperly drawn and prejudicial to the defendant and 2. That the district attorney was guilty of improper remarks in his opening statement. The remaining assignments relied on we deem without merit.
There is little dispute in the evidence. Defendant was apprehended by two state brand inspectors who were on a 'stake out' along the highway to intercept any unusual movement of livestock. Defendant had the unbranded calves in his pick-up when apprehended at 1:30 o'clock in the morning. Upon being stopped and questioned he said the calves were his (the defendant's). Subsequent undisputed evidence disclosed that each of the calves belonged to separate Indian owners. Each of the owners testified that they had not given their consent to the taking of the cattle by the defendant. Defendant's explanation of their acquisition was that the calves were sick and were being taken to a veterinarian in Delta. Other evidence, however, was produced to show that the calves were not sick. An eye-witness who helped the defendant cut out the calves from their mothers--a witness called as part of the defendant's case--testified concerning the night ride to get the calves, loading them into a pick-up and driving with lights out so that they would not attract attention. The witness' description of defendant's movement when a car appeared unexpectedly in the vicinity is quite revealing, and is quoted here to indicate that a jury might well conclude that defendant's possession and transportation of the calves was not with any lawful intent. We quote:
'We seen some car lights coming, or Ben did, and he shut off his lights quick and he said, 'Jerk the gate open; somebody is coming', and we tried to get the gate open, and we watched for a little while and the car went on by up around the road. We were right here (indicating) and there's a road that turns and comes over to the rear of Ben's, and this car was coming on around and Ben got up on top of the barn. He's got a fairly high barn. He got up on top of it and watched and the car went right to here (indicating), and the lights were on for a considerable time, I don't know just how long, thirty minutes I guess, and he watched quite a while for the lights, and after a while they turned off and he got off of the barn * * * He said, 'I can't understand what the lights were up there.' He says, 'I can't figure that out.' He says, 'I think it must be a trap.' He says, 'It was either the brand inspectors going there or else it might be Herley Boyd or it might even be Hawks.' He said, 'Maybe I ought to get a horse and jog up there and see if I can't see what is going on' * * * he says, 'I know this is a trap', but he says, 'I sure hate to turn those calves loose after all this work and after gathering them; I sure hate to turn them loose'.'
Since the evidence amply supports the verdict of the jury, the judgment of the court should be sustained unless the assignments of error are so prejudicial as to have denied defendant his right to a fair trial.
First Question to be Determined: Can objections to the form of the information be raised for the first time on motion for new trial and then made the basis for a writ of error?
This question is answered in the negative.
The information was in seven separate counts. One count was dismissed on motion of the District Attorney. Each count charged an alleged larceny of a calf therein described and gave the name of the individual owner. The defendant did not, either prior to or during the trial, object to the information. He entered separate pleas of not guilty to each count. He made no objection to the six separate verdicts submitted by the court to the jury. On motion for new trial defendant contended, as he does here, that the taking of the calves from one place at one time constituted but one act or transaction and that if he was guilty of larceny it was but a single offense. To this argument on the motion the trial court commented:
The court went on to say:
'However the Information was drawn the evidence would be the same, assuming that all calves were taken at the same time.'
It is clear from the evidence that the offense charged was one transaction and might properly have been charged in one count. But the failure of the District Attorney so to do did not prejudice the defendant. The jury was instructed that the information is merely an accusation and that it is not to be considered as evidence. It addition the evidence would have been no different had the information listed the seven calves of the seven defendants in one count in the information. The real objection, if any there be, to charging the defendant in more than one count, was stated in Sweek v. People, 85 Colo. 479, 277 P. 1, 3, as follows:
(Emphasis supplied.)
The court, recognizing that only one offense was committed, sentenced the defendant to a...
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