Howard v. People
| Decision Date | 06 November 1916 |
| Docket Number | 8845. |
| Parties | HOWARD et al. v PEOPLE. |
| Court | Colorado Supreme Court |
Error to District Court, Conejos County; Jesse C. Wiley, Judge.
Frank Howard and Frank Pasco were convicted of burglary with explosives, and they bring error. Affirmed.
Fred Counselor and James D. Pilcher, both of Alamosa, and Jesse Stephenson, of Monte Vista, for plaintiffs in error.
Fred Farrar, Atty. Gen., and W.B. Morgan, Asst. Atty. Gen., for the People.
GARRIGUES. J. (after stating the facts as above.)
1. Section 1, p. 334, Sess. Laws 1907, provides:
"Any person who, with the intent to commit any crime, breaks and enters any building and, for the purpose of committing any crime, uses or attempts to use nitroglycerine, dynamite gun powder or any other explosive, is guilty of burglary with explosives."
It is charged that defendants, with intent to commit larceny, broke and entered the banking house of the La Jara State Bank, a corporation and used an explosive with (for) the purpose of committing such crime.
Complaint is made because the pleader used the word "with" instead of "for," where the statute provides: And "for" the purpose of committing any crime uses or attempts to use an explosive. Also it is claimed the information is faulty because the corporate existence of the bank is not affirmatively alleged, but only by way of recital. Whatever merit there may be in either of these contentions, they should have been called to the attention of the lower court before verdict. It is too late after trial and conviction to raise matters of this character for the first time. Sections 1956, 1978, 1987, R.S.1908; Poole v People, 24 Colo. 510, 513, 52 P. 1025, 65 Am.St.Rep. 245; Laycock v. State, 136 Ind. 217, 36 N.E. 137.
2. We will next consider the assignments of error as to the sufficiency of the evidence to support the verdict, and lack of proof as to the corporate existence of the La Jara State Bank. The evidence as to the defendants being guilty is overwhelming and will not be further considered. Also the evidence is sufficient that the La Jara State Bank owned the building broken into and the money therein contained, which was stolen from the safe, and that an explosive was used by the burglars after they entered the bank, for the purpose of committing the crime of stealing the bank's money. It was not necessary to show who held the legal title to the building. If the bank had possession of and was occupying it in conducting a banking business, it was the bank's building for all the purposes of this case, no matter who held the legal title. The evidence clearly shows that the La Jara State Bank was burglarized; that the safe belonging to the bank was blown open; that the crime was committed by the use of explosives; and that the stolen money belonged to the bank.
3. The information charged that it was the banking house of the La Jara State Bank, a corporation, and it is claimed that the evidence fails to establish the corporate existence of the bank. The question regarding the alleged failure to prove the corporate capacity of the bank is raised for the first time in this court, and for that reason alone under the doctrine announced in Perry v. People, 38 Colo. 23 87 P. 796, we might refuse to consider this assignment. Counsel now claim, however, that this question of proof regarding the incorporation of the bank was raised in the court below in a motion for a new trial, and also in a motion in arrest of judgment, but...
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