People v. Bailey, 26410

Decision Date09 August 1976
Docket NumberNo. 26410,26410
Citation552 P.2d 1014,191 Colo. 366
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Walter H. BAILEY, Defendant-Appellant.
CourtColorado Supreme Court

J. D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., John R. Rodman, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Rollie R. Rogers, Colorado State Public Defender, James F. Dumas, Jr., Chief Deputy State Public Defender, Lee J. Belstock, Deputy State Public Defender, Denver, for defendant-appellant.

KELLEY, Justice.

Defendant appeals his conviction of felony theft, 1971 Perm.Supp., C.R.S.1963, 40--4--401(2), 1 on two grounds: (1) improper late endorsement of a prosecution witness; and (2) insufficiency of the evidence. We affirm.

An information was filed against the defendant 2 charging him with 'the crime of theft by unlawfully taking a thing of value, to-wit: two hereford heifers belonging to Gus Konig.' Accompanying the information was an endorsement of four prosecution witnesses: Jim Konig, William Israel, Gary Knutson and Harold Andrews. The trial court ordered that any additional prosecution witnesses be endorsed no later than December 4, 1973.

On December 5, 1973, the district attorney reviewed the case file in preparation for trial. He realized at that time that he needed the testimony of Gus Konig and Andrew Berg. He telephoned defense counsel late that afternoon and left a message with his secretary to the effect that he planned to endorse these two additional witnesses. On December 7, 1973, defense counsel received written notice of the endorsement in the mail.

The trial to the court commenced on December 11, 1973. When the district attorney called Gus Konig to testify, defense counsel objected on the grounds that the witness was endorsed after the court-ordered deadline. The trial court conducted a full hearing on the late endorsement of Gus Konig and Andrew Berg. The court concluded that the district attorney had violated the court-ordered deadline for endorsement of additional witnesses, but the court, nevertheless, permitted the two prosecution witnesses to testify.

The trial court offered the defendant a continuance on three different occasions as a result of the late endorsements. Defense counsel did not accept the offers, stating on the last refusal: 'No, your Honor, we don't request the continuance at this time, but don't want that to act as a waiver to our objection.'

The trial continued, and defendant did not request a continuance. The evidence indicated that about 8:30 P.M. on March 2, 1973, Jim Konig, a cattle rancher, heard a noisy vehicle drive along a seldom-used road passing through his pasture land. He noticed that the vehicle stopped at a place where there was no fence to keep his cattle from wandering onto the road from the pasture. He went to investigate, but was unable to reach the vehicle before it disappeared into the night. An immediate check of his herd revealed that four two-week-old hereford calves were missing.

Jim Konig then told his father, Gus Knoig, who was a co-owner of the cattle, about the incident. Gus Konig telephoned the sheriff's department to report the occurrence. Officer Harold Andrews was sent to the Konigs' house to investigate.

The four missing calves were described as two hereford bulls and two hereford heifers. They were approximately two weeks old. They were not branded, but were marked with a 'Lone Star' tag in the left ear. The tagger made a U-shaped slot, and its use was not widespread in the area. The value of each of the calves was an estimated $100 to $150.

Andrew Berg, a co-defendant and son-in-law of defendant, was given immunity during trial so that he could testify against defendant. He testified that he saw the defendant steal some hereford calves along an unfenced road some fifteen miles north of defendant's home, although the witness was not exactly certain of the location. Independent evidence indicated that the Konigs' ranch was approximately twenty-five miles north of defendant's home. The calves were taken to defendant's home where the ear tags were removed.

Approximately a week or so after the missing calves were reported, Jim Konig observed a vehicle stopping on the road where he had noticed the vehicle stop on the evening of March 2. He followed the vehicle, a Ford pickup truck, in his car until the truck stopped at the residence of defendant's mother. Jim Konig wrote down the license number of the truck, which was registered in the defendant's name. He then left without pursuing the matter further. No additional calves were reported missing that evening from the Konigs' herd. The incident was reported to the sheriff's department the next morning.

Officer Andrews investigated the incident. On March 25, 1973, Officer Andrews went to defendant's home, accompanied by William Israel, a Colorado state brand inspector. The officer informed defendant that he had a search warrant and that the defendant was under investigation for cattle theft. The officer read defendant his rights. Defendant then led the officer to his shed where the officer observed four calves. The officer than telephoned Jim Konig because two of the calves matched the description of the Konigs' missing cattle. Jim Konig arrived and identified the calves as his, noting the 'Lone Star' ear tagger slot in the left ear of one and the barely visible slot in the other calf's partially torn left ear. Konig took the two calves to his home.

Based upon this evidence, the trial court found the defendant guilty and sentenced him to the penitentiary.


Defendant contends that the late endorsement of Andrew Berg 3 by the prosecution constituted reversible error because:

'(1) the late endorsed witness' testimony was critical to the People's case, (2) the court had set a cut-off date for late endorsement that was not complied with, and (3) the prosecutor should have known of the materiality of the late endorsed witness before the cut-off date set by the court.'

The endorsement of witnesses in criminal cases is governed by the following rule:

'At the time of filing either the indictment or the information, the prosecuting attorney shall file with the court a written list of names and addresses of the witnesses then known to him whom he intends to call during the trial.' Crim.P. 7(d). 4

Compliance with this rule is mandatory for the district attorney, Wickham v. People, 41 Colo. 345, 93 P. 478 (1907), so that the defendant can adequately prepare his defense by investigating the information furnished by endorsed witnesses. Kloberdanz v. People, 95 Colo. 30, 31 P.2d 1111 (1934). However, granting leave for the late endorsement of witnesses by the prosecution is a matter within the discretion of the trial court. People v. Buckner, 180 Colo. 65, 504 P.2d 669 (1972); Corbett v. People, 153 Colo. 457, 387 P.2d 409 (1963).

In order to constitute reversible error where there is a late endorsement of a witness, the defendant must show that he was prejudiced because the appearance of the witness surprised him and because he did not have adequate opportunity to interview the witness prior to trial. Reed v. People, 171 Colo. 421, 467 P.2d 809 (1970); Stoudt v. People, 156 Colo. 568, 400 P.2d 670 (1965); Eckhardt v. People, 126 Colo. 18, 247 P.2d 673 (1952); Boykin v. People, 22 Colo. 496, 45 P. 419 (1896). Furthermore, even where such prejudice is shown, the granting of leave for late endorsement is not reversible error unless the defendant makes a timely request for a continuance which is denied by the trial...

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21 cases
  • People v. Steele
    • United States
    • Colorado Supreme Court
    • April 18, 1977
    ...a late endorsed witness, a defendant must make a timely request for a continuance which is denied by the trial court. People v. Bailey, Colo., 552 P.2d 1014 (1976); Reed v. People, 171 Colo. 421, 467 P.2d 809 (1970); Peppers v. People, 166 Colo. 93, 441 P.2d 668 (1968); Gorum v. People, 137......
  • People v. Sepeda, 27880
    • United States
    • Colorado Supreme Court
    • June 26, 1978
    ...for a continuance. Granting leave for the late endorsement of witnesses is within the sound discretion of the trial court. People v. Bailey, Colo., 552 P.2d 1014; People v. Gable, 184 Colo. 313, 520 P.2d 124. In Bailey, we held that: "(i)n order to constitute reversible error where there is......
  • People v. Renfrow, 26948
    • United States
    • Colorado Supreme Court
    • May 2, 1977
    ...held that a defendant must make a timely request for a continuance. People v. Steele, Colo., 563 P.2d 6 (1977); People v. Bailey, Colo., 552 P.2d 1014 (1976); Reed v. People, 171 Colo. 421, 467 P.2d 809 (1970); Peppers v. People, 166 Colo. 93, 441 P.2d 668 (1968); Gorum v. People, 137 Colo.......
  • People v. District Court of 2nd Judicial Dist., 83SA104
    • United States
    • Colorado Supreme Court
    • June 6, 1983
    ...witnesses are addressed to the sound discretion of the trial court. People v. Adler, 629 P.2d 569 (Colo.1981); People v. Bailey, 191 Colo. 366, 552 P.2d 1014 (1976). Second, the extensive discovery order entered by the respondent judge provided that the district attorney had an obligation t......
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