Keller v. People
| Decision Date | 16 December 1963 |
| Docket Number | No. 20772,20772 |
| Citation | 387 P.2d 421,153 Colo. 590 |
| Parties | Rex Edwin KELLER, Jr., Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error. |
| Court | Colorado Supreme Court |
Rex Edwin Keller, Jr., pro se.
Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., Richard W. Bangert, Asst. Atty. Gen., Denver, for defendant in error.
The plaintiff in error will be referred to as the defendant and the defendant in error will be referred to as the People.
Defendant was found guilty of burglary by a jury in the trial court and brings error to review the judgment of conviction entered on the verdict. He urges the following grounds for reversal:
I. That the trial court lacked jurisdiction to hear the instant case due to the fact that more than two terms of court had expired between information being filed and trial.
II. That the trial court erred in refusing to grant defendant's motion for a directed verdict at the conclusion of the People's case.
III. The verdict of the jury was contrary to the law.
IV. That the trial court erred in defendant's motion for a new trial and further erred in its refusal to set aside the verdict by the jury.
The last three contentions are in reality one; namely, that there was not sufficient evidence presented by the People to carry the case to the jury. We shall first consider this aspect of the case.
The record discloses that at approximately 3:00 A.M. on the morning of August 24, 1960, one Howard Grothjan, a patrolman of the City of Boulder, observed a man on the corner of 11th and Spruce streets in that city. Grothjan's suspicions were aroused when he observed the man 'duck and run' and he attempted to pursue him in his patrol car. This effort was not successful and Grothjan radioed for another patrol car to aid in the search. Shortly thereafter, patrolman Ahlf arrived at the scene and the two officers began a search of the area on foot. Ahlf discovered the defendant Keller lying underneath an automobile parked behind a residence at 1034 Spruce Street. At this time Ahlf noticed a 'crowbar' or prybar underneath the automobile. When asked what he was doing in the vicinity at such an early hour, Keller replied that he was 'prowling.'
The defendant was taken to the Boulder police station where he was questioned. There he informed the police that he had an automobile (not the one under which he had been discovered) and gave the keys to this automobile to the police. This vehicle was found parked in the 900 block of Spruce Street and a search of it revealed several suitcases of what appeared to the police to be new clothing, skin-diving equipment, and a plastic bag containing coins--mostly pennies.
An extensive search was thereafter conducted of the area surrounding the automobile under which the defendant had been found. Underneath this automobile the police found a pair of gloves, two screw drivers and a small flashlight. Under a bush located some three feet from the front of this automobile a plastic bag was found filled with paper currency amounting to some $1447.00. Approximately one hundred feet from the point where the defendant was apprehended a Samsonite 'V.I.P.' suitcase was found. This suitcase contained sundry items of male attire including belts, jewelry, handkerchiefs, tie clasps and cufflink sets, neckties and underwear. This suitcase also contained a bag of coins of various denominations including some gold coins.
While at the police station, the defendant stated that he was in Boulder for five days to visit his grandmother who lived at 1018 Spruce Street and that he had not yet seen her. During the course of his interrogation, Keller was instructed to remove his shoes and stockings, whereupon he produced a roll of bills from one stocking and stated, 'I think this is what you're looking for.' This amounted to some $74.00.
John F. Reinert testified that his establishment, the Reinert Clothing Company, located at 1147 Pearl Street, had been broken into during the night of August 23, or the morning of August 24. This store is close to the place where the defendant was discovered. Reinert testified that some $1649.00 had been taken from his store and he identified the Samonsite 'V.I.P.' suitcase and its contents--the gold coins and articles of male attire--as among the items missing from his store.
The People established that the method of entry into the clothing store was through a glass skylight which had been broken. Beneath the skylight is an air-conditioning or heating unit and a conduit running parallel to the ceiling. Below these structures and some three feet north of the skylight a clothes rack was positioned on the top of which was a board. In the dust on the board a heel print was found. The right shoe which the defendant was wearing at the time he was apprehended and the portion of the board containing the heel print were sent to the laboratory of the Federal Bureau of Investigation in Washington, D.C. At the trial, a special agent employed in the laboratory of the Federal Bureau of Investigation as an examiner of shoeprints and tire treads testified that in his opinion the heel print on the board was made by the heel of the defendant's right shoe and no other.
The defendant did not choose to testify. From the foregoing recital of the evidence, it is abundantly clear that there was sufficient circumstantial evidence presented by the People from which the jury might infer the defendant's guilt beyond a reasonable doubt. The fact that the People's case consisted of circumstantial evidence is of no moment, since it is clear that such evidence, no less than direct evidence, may support a verdict of guilty and that it is for the jury, in the last analysis, to weigh it under appropriate instructions. See Militello v. People, 95 Colo. 519, 37 P.2d 527; Conferti v. People, 79 Colo. 666, 247 P. 1065; 20 Am.Jur., Evidence, § 273, p. 260.
As we said in Wilcox v. People, 152 Colo. ----, 380 P.2d 912, 914:
The defendant contends that no evidence of the intent requisite to the crime of burglary was produced by the People. The answer to this contention is that an accused is presumed to intend the necessary or the natural and probable consequences of his unlawful voluntary acts, knowingly performed. 22 C.J.S. Criminal Law § 35, p. 121. In the case of burglary, the fact that a felony was committed after breaking and entering is admissible as evidence from which the jury can infer that the intent to commit the felony existed at the time of the breaking and entering. See 2 Wharton's Criminal Law and Procedure, § 408, p. 28 and cases collected therein. Since the evidence here was sufficient to permit the jury to infer that ...
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