McClenny v. People, 20324
| Decision Date | 22 June 1964 |
| Docket Number | No. 20324,20324 |
| Citation | 393 P.2d 736,155 Colo. 202 |
| Parties | Billy E. McCLENNY, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error. |
| Court | Colorado Supreme Court |
J. H. Boutcher, John Gibbons, Denver, for plaintiff in error.
Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., John T. Moore, Asst. Atty. Gen., Denver, for defendant in error.
Trial by a jury of his peers resulted in a verdict adjudging McClenny guilty of burglary, grand larceny and conspiracy to commit each of said crimes. Thereafter McClenny was duly sentenced to a term in the state penitentiary, his motion for a new trial having been denied. By the present writ of error McClenny now seeks reversal of this judgment and sentence, alleging as grounds therefor the following:
1. the evidence 'considered as a whole' is legally insufficient to support the verdict;
2. the trial court erred in granting the district attorney a one day continuance to enable him to locate a 'missing' rebuttal witness; and
3. a new trial should have been ordered because of newly discovered evidence.
In our view each of these contentions is without merit and the judgment must be affirmed. A brief recital of the evidence adduced upon trial will tend to put the matter in proper focus. It was established that some person or persons forcibly broke and entered the business offices of the Lowdermilk Bakeries, Inc., situate in Arapahoe County, and then proceeded to break open the company's safe and steal therefrom some $1,400. One Arrants, a former member of the Arapahoe County Sheriff's office, and one Hutton, a former member of the Denver Police Department, were called as witnesses by the People and each detailed his particular part in this crime. Moreover, each also implicated Mr. McClenny in this Lowdermilk burglary. Specifically, Arrants testified that he had reason to believe that a considerable sum of money was kept in the Lowdermilk safe each weekend and that he communicated this fact to his close friend, McClenny. He stated that he wasn't certain whether it was his idea to burglarize the Lowdermilk premises, or McClenny's, but that on the night in question he picked up McClenny and Hutton at a prearranged meeting place and the three of them proceeded in this official car to the scene of the burglary. According to Arrants, he acted as the 'lookout' while McClenny and Hutton gained entry to the office and broke open the safe.
Hutton testified that he was 'lined up' for the job by McClenny, both Arrants and Hutton testifying that the two of them had never met prior to this burglary. Hutton stated that McClenny assisted him in breaking open the safe and that the money obtained from the safe was immediately split three ways.
McClenny, however, denied any participation in this burglary and, in an effort to explain away the testimony of Arrants and Hutton, he testified that each of them held a personal grudge against him. McClenny also attempted to establish an 'alibi', and his testimony in this regard was to a degree corroborated by his wife and mother.
Without going into any further detailing of the evidence, it is at once obvious that there was a very sharp conflict between the People's evidence and that introduced in behalf of the defendant, McClenny. If the jury chose to believe the testimony of Arrants and Hutton, certainly there was ample evidence to sustain the verdict of the jury. In support of the proposition that a criminal conviction may be grounded even on the uncorroborated testimony of an accomplice, see Hoffman v. People, 72 Colo. 552, 212 P. 848 and Mendelsohn v. People, 143 Colo. 397, 353 P.2d 587. In the instant case, of course, the testimony of one accomplice is corroborated by that of another accomplice, a...
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