Lacey v. People

• Court: Colorado Supreme Court
• Writing for the Court: McWILLIAMS
• Citation: Lacey v. People, 442 P.2d 402, 166 Colo. 152 (Colo. 1968)
• Decision Date: 17 June 1968
• Docket Number: No. 22581,22581
• Parties: Billy LACEY, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.

Page 402

442 P.2d 402

166 Colo. 152

Billy LACEY, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.

No. 22581.

Supreme Court of Colorado, In Department.

June 17, 1968.

Rehearing Denied July 15, 1968.

Edward H. sherman, Public Defender, David G. Manter, Asst. Public Defender, in and for the City and County of Denver, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., Robert C. Miller, Asst. Atty. Gen., for defendant in error.

McWILLIAMS, Justice.

Lacey was convicted by a jury of the crime of forgery (C.R.S.1963, 40--6--1) and as a result thereof he was thereafter sentenced to a term of from ten to fourteen years in the state penitentiary. This particular sentence, incidentally, was to be served concurrently with a sentence imposed upon him in a companion case wherein he had previously pled guilty to the crime of forgery and had theretofore been sentenced to imprisonment in the state penitentiary for a term of from five to fourteen years. By writ of error Lacey now seeks reversal of the conviction which resulted in the ten to fourteen year sentence to the penitentiary.

The People's evidence showed that Lacey purchased a used car from one John H. Knight for $175. Upon consummation of the transaction Lacey took possession of the vehicle and the certificate of title thereto, and in return therefor gave Knight a check in the amount of $175.

Upon trial Knight positively identified Lacey as the individual to whom he sold his car. However, according to Knight the man with whom he thus dealt did not use the name of Lacey, but on the contrary held himself out to be one 'C. F. Croswell.' And the check which was given by Lacey to Knight in payment for the vehicle was signed 'C. F. Croswell.' In other words, Knight was the designated payee on the check, and 'C. F. Croswell' was the purported maker thereof. The check was drawn on the Mountain States Bank and was on a form which carried the printed name 'C. F. Croswell' at the top.

Upon trial Lacey testified that it was somebody else, not he, who had purchased the car in question from Knight, and that he (Lacey) had never even seen Knight till trial of the matter. As to the question of identity, as indicated above, Knight definitely identified Lacey as the person with whom he had dealt. In this identification, Knight was corroborated by two other witnesses. Knight had previously left his car at a service station with the direction that it be offered for sale. And the service station attendant identified Lacey as the one who made inquiry of him about the car, and the attendant testified that he in turn then referred him to Knight. Also, a girl friend of Lacey's testified upon rebuttal that she recalled 'driving around' with Lacey in a "55 Dodge,' which was the year and make of car which Knight had sold.

Lacey now contends that Knight's testimony is 'incredible' and the conviction should therefore be reversed. Whether Knight and the two corroborating witnesses should be believed, or on the other hand whether Lacey's testimony regarding mistaken identity should have been accepted, was an issue to be resolved by the jury. And by their verdict the jury has now indicated, in effect, that it was Lacey's testimony--not Knight's--which was in fact 'incredible.' This determination is one which we are not at liberty to set aside.

Lacey also argues, alternatively, that even if it be assumed that it was he who in fact bought the car from Knight, still the People failed to show that there was a 'lack of authority' on his part to sign the name of 'C. F. Croswell.' 'Lack of authority' may be proven by circumstantial evidence, as well as by direct evidence. Without going into elaborate detail, the instant case in this regard comes well within our recent pronouncement in Avila v. People, Colo., 431 P.2d 782.

Error is next assigned to the ruling by the trial court wherein it admitted into evidence the signature card of the true 'C. F. Croswell' on file with the bank. For some reason 'C. F. Croswell' did not appear as a witness upon the trial. Whether he was available, or not, the record does not disclose. Regardless, a bank officer did testify and it is his testimony which formed the basis for the eventual admission into evidence of the aforementioned signature card. The bank representative testified that he was personally acquainted with Mr. Croswell and had on many occasions witnessed the making of his signature. Based on the fact that he was very familiar with Croswell's signature, he then opined that the signature on the check under consideration was not Croswell's and that the signature on the the signature card was that of Croswell. He then explained the manner in which the signature cards were obtained and kept by the bank and added that he was the bank official 'in charge' of all signature cards. This, to us, is a sufficient foundation to justify the reception into evidence of the signature card here under attack, and accordingly we perceive no error in this regard.

The real issue raised by this writ of error concerns the use of prior felony convictions by the district attorney in his effort to attack the credibility of Lacey. As above noted, Lacey elected to testify and upon cross-examination the district attorney propounded a series of questions relating to Lacey's prior convictions. In response to a leading question, Lacey admitted that in 1965 he was convicted of forgery and that in 1956 he also suffered another conviction for forgery. Then he was asked if he had not also been convicted of 'criminal assault of a minor child' in 1948. To this question objection was voiced, the specific objection being that 'this is not going to scheme or anything else--I don't think this type of offense has anything to do with it.' This objection was overruled and Lacey then stated that he had entered a plea of 'non vult' to the assault charge and that as a result of the 'non vult' plea he 'did time in the state pen.'

The objection as voiced was without merit, as the district attorney in bringing out Lacey's prior felony conviction was Not attempting to show common scheme, device or plan, but was doing so in an effort to attack Lacey's credibility as a witness in the case, as is permitted by C.R.S.1963, 154--1--1.

However, in the motion for new trial, as well as in this court, Lacey expands upon this point. Here, it is agreed that the 1948 'conviction' for criminal assault occurred in New Jersey and resulted from Lacey's entry of a plea of non vult contendere. Also, it is agreed by counsel that so-called 'criminal assault' in New Jersey is a misdemeanor, New Jersey apparently no longer recognizing the distinction...