Mendelsohn v. People

• Decision Date: 05 July 1960
• Docket Number: No. 19158,19158
• Citation: Mendelsohn v. People, 353 P.2d 587, 143 Colo. 397 (Colo. 1960)
• Parties: Miguel MENDELSOHN, Plaintiff in Error, v. PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 587

353 P.2d 587

143 Colo. 397

Miguel MENDELSOHN, Plaintiff in Error, v.PEOPLE of the State of Colorado, Defendant in Error.

No. 19158.

Supreme Court of Colorado, In Department.

July 5, 1960.

Rehearing Denied Aug. 2, 1960.

Isaac Mellman, Denver, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., Gerald Harrisson, Asst. Atty. Gen., for defendant in error.

PER CURIAM.

Plaintiff in error, hereinafter called the defendant, was charged in four counts of an information with the commission of second-degree arson; conspiracy to commit arson of the second degree; burning to defraud an insurer; and conspiring to commit burning to defraud an insurer, in that order.Defendant pleaded not guilty to all charges.One Lucero, an employee of the company of which defendant was the chief stockholder and general manager, was jointly charged with defendant in commission of the crimes.Defendant was granted a severance and his trial proceeded separately.Lucero had plead guilty to the first and second counts of the information, and with the approval of the trial court the third and fourth counts as to him were withdrawn by the district attorney.Following his conviction, Lucero was given probation.Trial of the defendant resulted in verdicts of guilty upon all except the fourth count of the information, which was dismissed by the trial court at the close of the people's case.Motion for new trial was denied and defendant sentenced to the state penitentiary.Urging that the trial court committed prejudicial error, the defendant is here by writ of error seeking reversal.

Among the thirty-three assignments of error, those which merit consideration are the following, viz.: That the withdrawal of the third and fourth counts of the information against Lucero was an automatic dismissal of such counts against defendant; that defendant's business records should have been returned to him by the district attorney; that the trial court refused to permit defendant's counsel to interrogate people's witness Lucero concerning his status at the time of trial; and that there was not sufficient credible evidence to warrant conviction.

(1)We will dispose of the last contention first.The facts are simple.Evidence on behalf of the people tended to establish that prior to November 22, 1957, the defendant arranged with Lucero to destroy by fire the business and plant of Big Chief Bottling Company, a corporation, at 912-918 Larimer Street, Denver, of which, as stated above, defendant was the principal stockholder and general manager.Lucero was a driver and route salesman of the company with a prior conviction of nonsupport of his family.Defendant promised him $1,000 to burn the building.The deed was to be done in such manner that fire insurance could be collected and a new building erected for a smoother operation without so many breakdowns.The fire and business interruption insurance had been increased a few months before the fire.At approximately 8:50 p. m. on November 22, 1957, a fire at the bottling works was reported.Upon arrival of the fire department the building was enveloped in flames.The east wall had blown out and the roof was lying upon the bottling equipment.Lucero, in an injured condition, was rescued from the roof of an adjacent structure.He was practically incoherent and was taken to a hospital.Open containers of gasoline were found in the bottling company area.

At the trial Lucero testified that defendant placed 'settings' of jugs of gasoline in various parts of the building, and that he(Lucero), as had been arranged, began execution of the unlawful act by lighting two torches and moving towards the settings to ignite them.An explosion occurred inside the building.Lucero escaped by crawling up a portion of the roof to and upon the roof of an adjacent building.

The day after the fire, defendant went to Lucero's home and gave his wife $50, and on that occasion told her 'That if somebody came and investigated to tell them that Joe wasn't working 'that night" (of the fire).Two days thereafter defendant called at the Lucero home and in the presence of witness Lola G. French, asked Mrs. Lucero, 'Has anybody been to investigate you,' to which Mrs. Lucero answered, 'They already investigated me,' whereupon defendant replied, 'What did you say, so we could all stick to the same story.'The 'story' that the defendant wanted these witnesses to relate was that Lucero 'hadn't gone to work; that he had gone out to cash his check on that night, on the night of the fire, on the 22nd.'

The defendant in conformity with his pleas of 'not guilty' denied this testimony and gave an account of himself compatible with innocence.He points out discrepancies in Lucero's testimony and urges that it is uncorroborated and not credible.In this jurisdiction the testimony of an accomplice, while it need not be corroborated, must be received with great caution, and when standing alone is relied upon for a conviction, must be clear and convincing and show guilt beyond a reasonable doubt.Solander v. People, 2 Colo. 48;Moynahan v. People, 63 Colo. 433, 167 P. 1175;Hoffman v. People, 72 Colo. 552, 212 P. 848;People ex rel. Colorado Bar Ass'n v. Boutcher, 89 Colo. 497, 4 P.2d 910;Schectel v. People, 105 Colo. 513, 99 P.2d 968;Ellis v. People, 114 Colo. 334, 164 P.2d 733;People v. Urso, 129 Colo. 292, 269 P.2d 709;Bowland v. People, 136 Colo. 57, 314 P.2d 685.However, in the case before us Lucero's testimony is corroborated as amply shown by the foregoing recital of facts.Under the...