Lewis v. People, 15602.
| Decision Date | 28 January 1946 |
| Docket Number | 15602. |
| Citation | 114 Colo. 411,166 P.2d 150 |
| Parties | LEWIS v. PEOPLE. |
| Court | Colorado Supreme Court |
Rehearing Denied Feb. 18, 1946.
Error to District Court, City and County of Denver; Robert W Steele, Judge.
Alice Ruby Lewis was convicted of larceny by bailee, and she brings error and applies for supersedeas.
Affirmed.
Morton M. David and Nathan I. Golden, both of Denver, for plaintiff in error.
Lawrence Hinkley, Atty. Gen., Duke W. Dunbar, Deputy Atty. Gen., and Jack L. Graham, Asst. Atty. Gen., for defendant in error.
Alice Ruby Lewis, plaintiff in error, to whom we hereinafter refer as defendant, was convicted of the crime of larceny by bailee and sentenced to a term in the pemitentiary. To review that judgment she sued out a writ of error, assigning forty errors which she alleges were committed by the trial court to her prejudice.
The record, which we have read carefully, consists of 2447 folios, and 192 exhibits offered in evidence during the trial. With our permission the abstract and briefs were typewritten.
It was charged in the information that on or about the 11th day of July, 1942, defendant became the bailee for safe-keeping and return of numerous articles of personal property belonging to the prosecuting witness of a value in excess of $20, 'and that while so the bailee thereof,' she unlawfully and feloniously converted the same to her own use with intent to steal the same.
The evidence discloses that defendant was the exclusive manager and operator of a convalescent home at 2727 West 33d Avenue in Denver, which was owned by her and another. The crime with which defendant was charged, and of which she was convicted had to do with certain personal property belonging to Blanche Kingston, herein designated as prosecuting witness. Prior to July 24, 1942, the prosecuting witness had been a patient at the Denver General Hospital and on or about the date last mentioned became a patient at the convalescent home, where she remained until about September 13, 1942.
About July 15, 1942, defendant presented a written order, purporting to have been signed by the prosecuting witness, to the Weicker Transfer and Storage Company for the delivery to her of a trunk which had been stored with it by the prosecuting witness, and thereupon defendant secured possession of the trunk which was removed by her to the convalescent home. About September 2, 1942, defendant also secured possession of certain goods and chattels belonging to the prosecuting witness and which had been by her stored with the Santa Fe Moving and Storage Company.
February 10, 1943, defendant, through her attorney, made a written demand upon the prosecuting witness for the payment of 'charges for storage and handling of your furniture, personal property and trunks which are stored * * * at 2727 West 33rd Avenue' amounting to $45.75 and advising her that unless that sum was paid on or Before February 27, 1943, these articles would be sold for the purpose of paying the 'lien for storage and handling.'
February 27, 1943, the prosecuting witness paid defendant the $45.75 demanded, whereupon it is claimed that only part of the goods and chattels were delivered. Subsequently the prosecuting witness caused the issuance of a warrant to search the premises at 2727 West 33d Avenue, and under this warrant certain goods and chattels, which the prosecuting witness identified as her property, were taken into the possession of the constable. Thereafter the prosecuting witness caused a warrant to be issued in Jefferson county, authorizing the search of a certain cabin owned by defendant, and upon this search other goods and chattels, identified by the prosecuting witness as her property, were taken into the possession of the constable.
Under the search warrants issued in the City and County of Denver and Jefferson county, there was taken into the possession of the constables about 175 articles, all of which the prosecuting witness testified were her personal property and were by her stored with the Weicker Transfer and Storage Company and the Santa Fe Moving and Storage Company, the possession of all of which defendant had acquired and refused to deliver to her upon demand and payment of storage charges therefor. Defendant positively identified each of the articles taken under the search warrants and claimed ownership thereof.
At the conclusion of the people's case in chief, a motion for a directed verdict was interposed and denied, and at the conclusion of all the evidence in the case this motion was renewed, with like result. The motion for a directed verdict was based upon the ground that there were several distinct transactions embodied in the information and therefore the counts of the information were duplicitous, and for the further reason that the crime of larceny by bailee had not been established.
When the people's case in chief was closed, defendant interposed a motion to quash the information because: 1. It appeared from the evidence that there were two distinct transactions embodied in the information; 2. the defendant was on trial for more than one violation of the law involving separate and distinct transactions. This motion to quash was denied.
The only assignments of error which we deem of sufficient importance to merit our consideration are: 1. The court's refusal to direct a verdict for defendant at the conclusion of the people's case in chief and at the conclusion of all of the evidence; and, 2. the denial of the motion to quash the information. We will dispose of these assignments in that order.
1. The crime charged was larceny by bailee, and, in order to prove this offense, it was incumbent upon the people to establish by competent evidence beyond a reasonable doubt, not only a bailment, but a larcenous disposition of the articles bailed.
'Bailment is the delivery of personal property by one person to another in trust for a specific purpose, with a contract, express or implied, that the trust shall be faithfully executed and the property returned or duly accounted for when the special purpose is accomplished, or kept until the bailor reclaims it.' Syllabus, Tashima v. People, 58 Colo. 98, 144 P. 200.
A bailee is one to whom personal property, which may be the subject of larceny, has been delivered, to be held for some stated purpose or object and which is to be returned to the bailor or delivered to some other person when the purpose or object has been accomplished or for the purpose of accomplishing the object.
The people offered in evidence the following:
'July 11-42
Weicker Co: Send my trunk in storage to 2727 W-33rd-Ave Lady in charge will pay charges when Del. is made. Blanche Kingston.'
This order, the prosecuting witness testified, was a forgery and no authorization whatever was thereby given to the Weicker Transfer and Storage Company to deliver the trunk to defendant. If this order was a forgery, any possession of the articles mentioned therein, acquired by defendant, was unlawful. The prosecuting witness testified that she first learned that defendant had possession of her trunk, on receipt of defendant's attorney's letter demanding payment for storage and handling charges. That fixed the date in February, 1943.
The people introduced evidence to establish that on September 2 1942, property belonging to the prosecuting witness and by her stores with the Santa Fe Moving and Storage Company, came into the possession of defendant without her authorization or knowledge; and further evidence to the effect that the prosecuting witness first learned that these articles were in defendant's possession in February, 1943, after she...
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