People v. Lamirato, 24969
| Decision Date | 18 December 1972 |
| Docket Number | No. 24969,24969 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Stanley J. LAMIRATO, Defendant-Appellant. |
| Court | Colorado Supreme Court |
Duke W. Dunbar, Atty. Gen. John P. Moore, Deputy Atty. Gen., David A. Sorenson, Asst. Atty. Gen., Denver, for plaintiff-appellee.
Mellman, Mellman & Thorn, P.C., Isaac Mellman, Denver, for defendant-appellant.
The defendant Stanley Lamirato was convicted of the following six charges: burglary; conspiracy to commit burglary; theft (by taking); conspiracy to commit theft (by taking); theft (by receiving); and conspiracy to commit theft (by receiving). All six counts related to the theft of three television sets from Mid-Continent Appliance Distributors, Inc., on August 12, 1969.
The defendant received consecutive sentences on the burglary and conspiracy to commit burglary convictions. Sentences on the remaining four counts were to be served concurrently with the sentences imposed for the burglary count.
The witness Stapleton, with some corroboration, testified as to the facts contained in the following four paragraphs.
Around the first part of August, 1969, Stapleton was approached by two individuals who were attempting to sell certain stolen television sets. Stapleton called a billiard parlor and the party answering informed him that a man would meet him at Stapleton's home and purchase the sets. Subsequently, the defendant appeared at Stapleton's home and purchased the sets. Stapleton followed the defendant to his motel where the defendant stated that he would take all the color television sets that Stapleton could provide.
On August 12, 1969, Stapleton and another stole three television sets from Mid-Continent Appliance Distributors, Inc. Stapleton then called the defendant and told him that he had three color television sets to sell. Later that same day, the defendant purchased the three sets.
On the evening of August 12, 1969, the defendant supplied Stapleton with an old truck to be used in obtaining further TV sets. The defendant also promised to supply Stapleton with legal assistance and bail if he were apprehended. On that same evening, the truck had a flat tire and the defendant instructed Stapleton to leave it at a gas station. The next day, August 13, 1969, the defendant delivered to Stapleton a rented U-Haul truck, instructing Stapleton to abandon it if he were caught.
On August 14, Stapleton stole four additional television sets and sold them to the defendant. On August 15, using another U-Haul truck which defendant had rented that day, Stapleton and others stole television sets from one store in Boulder, Colorado, and were apprehended while attempting to steal sets from another store.
After the defendant was informed of Stapleton's arrest, he reported to the police that the U-Haul truck had been stolen. At trial, the defendant admitted that he intentionally filed a false theft report after learning of Stapleton's arrest.
The defendant argues that there was insufficient evidence to permit submission of all counts to the jury except Count 5, theft by receiving. The defendant states that, 'as to Count 5, it may be that the evidence considered in the best light possible for the prosecution, was established . . ..' Indeed, the evidence was amply sufficient to support the conviction under Count 5.
As to the theft (by taking) count, the defendant was necessarily convicted as a principal through the accessory statute, C.R.S.1963, 40--1--12. In Miller v. People, 92 Colo. 481, 22 P.2d 626 (1933), it was stated:
'If one agrees in advance to buy stolen property, knowing that the property is to be stolen, he thereby encourages the perpetration of the theft, and, if the crime is committed, he is 'deemed and considered as principal and punished accordingly."
There was evidence presented at trial to the effect that the defendant had stated, prior to the theft on August 12, 1969, that he would take all the color television sets Stapleton could provide. Further, there was evidence from which a jury could properly infer that the defendant knew that the television sets would be stolen. Thus the evidence was sufficient to permit submission of the theft (by taking) count to the jury, it being properly instructed as to an accessory becoming liable as a principal.
The People have not specifically discussed the sufficiency of the evidence in relation to the burglary conviction but have suggested that it was sufficient. Although the evidence would warrant submission of the theft (by taking) count to the jury under the rule established in Miller v. People, Supra, we do not believe that rule should be extended to permit submission of the burglary count under the facts of this case.
The record did not disclose that the defendant was informed that burglaries would be committed. It is conceivable that Stapleton might have obtained sets by theft without commission of a burglary. The People have cited no case, and we have been unable to locate any case, which supports a burglary conviction on the basis of the evidence presented here. We therefore reverse the defendant's burglary conviction and, for similar reasons, the defendant's conviction of conspiracy to commit burglary. Carter v. People, 169 Colo. 531, 458 P.2d 236 (1969).
The elements of a conspiracy were recently set forth in Young v. People, Colo., 502 P.2d 81 (1972) as follows: '(1) an agreement (2) between two or more persons (3) to commit a crime.' On each of these elements, the People presented sufficient evidence from which a jury could find that the defendant conspired to commit theft (by taking) and theft (by receiving).
Certain items of evidence were seized under a search warrant. The affidavit upon which the search warrant was predicated disclosed that Stapleton had told the affiant (who executed the warrant) about how the defendant furnished him trucks. The property described in the warrant consisted of several specifically described television sets, as well as 'all papers, receipts or ledgers tending to establish disposition' of such TV sets. The defendant moved to suppress property seized pursuant to the warrant and the trial court denied the motion. On this appeal, the sole error urged by the defendant in this regard is that two of the items seized had nothing to do with the disposition of the stolen property. These two items were: (1) a receipt for payment of U-Haul truck rental charges incurred and paid by the defendant when he rented a U-Haul truck on August 13, 1969, and returned the truck on August 14, 1969; and (2) a copy of a rental contract on a U-Haul truck entered into by the defendant on August 15, 1969.
Search warrants are to be tested and interpreted in a 'common sense and realistic fashion.' United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); People v. Schmidt, 172 Colo. 285, 473 P.2d 698 (1970); and See Stewart v. People, 161 Colo. 1, 419 P.2d 650 (1966). Under the facts here, the receipts and rental contracts pertaining to the trucks--which were to be used for transportation of stolen goods--were sufficiently within the warrant description.
At the close of the People's evidence, the defendant made a general motion to require the People to elect among the counts. The motion was denied and the defendant now urges that the People should have been required to elect between the theft (by taking) and theft (by receiving) counts. The People indicated during oral argument of this case, and we agree, that the defendant could not be convicted on both charges.
This court has stated on at least two occasions that when one has actively participated in a larceny he cannot be charged with receiving goods there stolen. Burns v. People, 148 Colo. 245, 365 P.2d 698 (1961); and People v. Spinuzza, 99 Colo. 303, 62 P.2d 471 (1936). See Annot., 136 A.L.R. 1087. We follow the rule that one who is a principal to larceny By reason of being an accessory and who purchases the fruits of that larceny knowing them to be stolen can be convicted under Either of the offenses of larceny or receiving stolen goods. The cases which so rule also hold, as do we, that the person cannot be convicted of Both offenses. Glass v. United States, 351 F.2d 678 (10th Cir....
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