Howe v. People, 24650

• Decision Date: 15 May 1972
• Docket Number: No. 24650,24650
• Citation: 178 Colo. 248,496 P.2d 1040
• Parties: James HOWE, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 1040

496 P.2d 1040

178 Colo. 248

James HOWE, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.

No. 24650.

Supreme Court of Colorado, En Banc.

May 15, 1972.

Taussig, McCarthy & Snyder, Paul Snyder, Jr., Boulder, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Michael T. Haley, Jack Hanthorn, Asst. Attys. Gen., Denver, for defendant in error.

HODGES, Justice.

Defendant James Howe was convicted of theft and conspiracy to commit theft. On writ of error, he alleges several grounds for reversal. In our view, none have merit. The judgment of the trial court is therefore affirmed.

Twenty-eight T.V. sets and two refrigerators were stolen from the warehouse of Allied Appliances, Inc. The prosecution's evidence revealed that defendant planned the theft. Defendant secured the services of one Bright who went to the warehouse on two occasions with a rented truck. The appliances were loaded on the truck with the assistance of a warehouse employee. Defendant sold the merchandise to unknown parties. Bright and the warehouse employee participated in the proceeds.

Where relevant, additional facts will be supplemented in the discussion of the issues presented.

I.

The defendant first argues that the theft statute under which he was charged, 1967 Perm.Supp., C.R.S.1963, 40--5--2, is unconstitutionally vague and internally inconsistent and therefore void on its face. We do not agree. A statute is presumed to be constitutional and the one attacking its validity has the burden of establishing invalidity beyond a reasonable doubt. Clark v. People, Colo., 488 P.2d 1097; Dunbar v. Hoffman, 171 Colo. 481, 468 P.2d 742; Love v. Bell, 171 Colo. 27, 465 P.2d 118; Flank Oil Co. v. Tennessee Gas Transmission Co., 141 Colo. 554, 349 P.2d 1005. The defendant here has not met this burden.

In determining whether or not a statute is unconstitutionally vague, this court has consistently adhered to the following generally accepted test. If a statute gives fair description of the conduct forbidden and men of common intelligence can readily apprehend the statute's meaning and application, it will not be declared unconstitutional for vagueness. Self v. People, 167 Colo. 292, 448 P.2d 619; People v. Heckard, 164 Colo. 19, 431 P.2d 1014; and Memorial Trusts, Inc. v. Beery, 144 Colo. 448, 356 P.2d 884.

,1967 Perm.Supp., C.R.S.1963, 40--5--2 meets this test. Subsections (1)(b) (i), (ii), (iii) and (iv) clearly delineate four acts which, if done with the intent specified in subsection (1)(c)(i), (ii) or (iii) constitute the crime of theft. Any person of common intelligence can readily comprehend the meaning and application of this definition. The words used by the legislature in drafting this statute are not ambiguous, nor do they require any extended or involved interpretation in order to arrive at their clear meaning.

Nor do we find that the statute in question is internally inconsistent. The defendant correctly asserts that 1967 Perm.Supp., C.R.S.1963, 40--5--2(1)(b) (i), (ii) and (iii) speak in terms of 'exerts unauthorized control' or 'obtains by deception control' or 'obtains by threat control' while 1967 Perm.Supp., C.R.S.1963, 40--5--2(3) provides:

'In every indictment or information charging a violation of this section, it shall be sufficient to alleg that, on or about a day certain, the defendant committed the crime of theft by Unlawfully taking a thing or things of value of a person or persons named in the indictment or information.' (Emphasis added.)

On this basis, the defendant argues that the requirements of the information as set forth in the above quoted subsection are inconsistent with the proscriptions of the prior substantive sections because one could 'exert unauthorized control' over something of value yet not be guilty of an 'unlawful taking.' This is not a valid argument. It is elementary that when construing a statute, the statute must be read and considered as a whole. In addition, we held in Dekelt v. People, 44 Colo. 525, 99 P. 330:

'. . . that the cardinal rule to be observed in construing a statute is to ascertain the intent of the Legislature in passing it. . . .'

When all of the subsections of 1967 Perm.Supp., C.R.S.1963, 40--5--2 are read together, it becomes apparent that the intent of the legislature was to bring together in one statute most of the crimes formerly known by several different names. Each of these former crimes had as a material element the unlawful depriving of a person of his property. What varied in the different crimes was the method used to achieve the deprivation. We perceive no inconsistency between the words used to describe the methods of deprivation with the intent to permanently deprive a person of a thing of value and the words 'unlawfully taking.'

Black's Law Dictionary (Revised 4th ed.) defines the word 'take' as follows:

'To lay hold of; to gain or receive into possession; to seize; to deprive one of the use or possession of; to assume ownership.'

'A 'taking' occurs when a person with a preconceived design to appropriate property to his own use obtains possession of it by means of fraud or trickery.'

'The word take has many shades of meaning, precise meaning which it is to bear in any case depending on the subject with respect to which it is used.'

This illustrates that the three phrases utilized by the legislature in the substantive portions of the statute are encompassed by the phrase 'unlawfully taking.' Certainly no person of common intelligence is unable to understand the clear meaning and import of the two subsections. The use of two different words or phrases, each of which expresses the same common meaning, does not render a statute internally inconsistent. See People v. Massey,157 Cal.App.2d 623, 312 P.2d 365 (1957) in which a similar statute was construed and upheld.

II.

The defendant's next two arguments are closely related. He argues that the information was fatally defective because it did not adequately apprise the defendant of the charges against him, and secondly, it was therefore erroneous for the trial court not to require the district attorney to file a formal bill of particulars.

The first count of the information charged the defendant with 'feloniously, knowingly, wilfully and unlawfully' committing the crime of theft by taking 'miscellaneous personal property' from the victim, Allied Appliances, Inc., with the intent to permanently deprive said victim of the use and benefit of the said property having the value of more than one hundred dollars on August 28, 1968. In a second information, the defendant was identically charged in connection with another alleged theft on August 16, 1968. The trial on the second information was not scheduled to begin until after the conclusion of the trial on the first information. Before trial, the court granted the defendant's request for a bill of particulars. The district attorney furnished the defense with an inventory list, prepared by the victim, listing 30 items of property found to be missing from the victim's warehouse stock between July 31, 1968 and August 29, 1968. The list contained the brand name, model and serial number and price of each missing item. Except for two refrigerators, all the items were T.V. sets.

On the morning of trial, defense counsel attempted to obtain a statement as to which items on the list were taken on August 28, 1968. The district attorney informed the trial court that the People intended to prove that 17 color T.V. sets were taken on August 28th and that the remaining items were taken on August 16th. The trial on the August 28th theft proceeded on that basis.

It is our view that the information was sufficient to apprise the defendant of the charge he faced. As previously discussed, 1967 Perm.Supp., C.R.S.1963, 40--5--2(3) sets forth the essential elements to be included in an information charging theft. The information here complies with those requirements and with the requirements of Crim.P. 7(c) and C.R.S.1963, 39--4--3 and 4. Although the phrase 'miscellaneous personal property' is broad, the itemized list of missing items furnished to defense counsel adequately narrowed that phrase. See our recent decision in Edwards v. People, Colo., 491 P.2d 566.

As to the trial court's failure to require the district attorney to file a formal bill of particulars, it is well established by Colorado law that the granting or denial of a bill of particulars is within the sound discretion of the trial court, and in the absence of an abuse of discretion, the trial court's ruling will not be disturbed on review. Self v. People, Supra; Balltrip v. People, 157 Colo. 108, 401 P.2d 259; Johnson v. People, 110 Colo. 283, 133 P.2d 789; Stewart v. People, 86 Colo. 456, 283 P. 47.

In our view, the trial court did not abuse its discretion in not requiring a formal bill of particulars under the circumstances here.

We further note in answer to another of the defendant's arguments that 'the test of the sufficiency of an indictment is not determined by whether the indictment alone will protect the accused against the possibility of double jeopardy.' Sepulveda v. United States, 244 F.Supp. 598 (D.Colo. 1965); Flores v. United States, 338 F.2d 966 (10th Cir. 1964). Also See Mora v. People, 172 Colo. 261, 472 P.2d 142, which quotes with approval the following statement from Casias v. United States, 331 F.2d 570 (10th Cir. 1964):

'Nor need an indictment or information plead an offense in such detail as to be self-sufficient as a bar to further prosecution for the same offense. The judgment constitutes the bar. Martin v. United States, 10 Cir., 285 F.2d 150. And the extent of the judgment may be determined from an examination of the record as a whole.'

III.

Next, the defendant urges reversal on the ground that when the People presented evidence of the similar transaction which occurred on August 16, 1968, the court erred in using...