People v. McClure, 25820

• Decision Date: 30 September 1974
• Docket Number: No. 25820,25820
• Citation: 186 Colo. 274,526 P.2d 1323
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Marvin R. McCLURE, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 1323

526 P.2d 1323

186 Colo. 274

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Marvin R. McCLURE, Defendant-Appellant.

No. 25820.

Supreme Court of Colorado, In Department.

Sept. 30, 1974.

John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., Tennyson W. Grebenar, Asst. Atty. Gen., Denver, for plaintiff-appellee.

H. D. Reed, Denver, for defendant-appellant.

GROVES, Justice.

The defendant was charged with and convicted of 'the crime of theft by unlawfully taking money from the victim, Charolette F. Muilenburg, with the intent to permanently deprive said victim of the use and benefit of said property having a value of more than One Hundred Dollars ($100.00).' We find the evidence insufficient to support the verdict, and reverse.

In April 1971, a Mr. Eggers of Lakewood, Colorado received a long distance telephone call offering a 'package' of lodging, food and drink in Las Vegas. He was advised that, if interested, he should telephone a certain Denver number. He called that number, reaching the travel agency operated by the defendant. A woman told him that the package would be $14, which would not include transportation. With materials furnished by the travel agency, he ordered the package for himself and his wife. Mr. and Mrs. Eggers interested Mr. and Mrs. Muilenburg in the matter, and the Muilenburgs purchased the same package, for a 3-day vacation in Las Vegas commencing August 6, 1971.

Mr. Eggers inquired of the defendant as to whether he could obtain a discount on air fare. The defendant offered to supply the two couples with airline tickets for $150 per couple as a part of a group, promising to deliver them on July 30, 1971. The defendant stated that, if they wished to avail themselves of the offer, the money would have to be paid to him by July 3th. On July 9th the two couples went to defendant's office and Mrs. Muilenburg gave defendant a check for $300 for the four tickets. The check was made payable to one of defendant's trade names, 'World Marketing.' The defendant then advised them that he would make reservations on Frontier Airlines Flight #7 for August 6th. The check was deposited to the World Marketing bank account on July 12th.

Mr. Eggers testified:

'Because we were told we would not be able to get a discount directly through the airlines--we were supposed to work with him and he'd get it. We were told not to even call the airlines.'

After July 9th Mr. Eggers telephoned the defendant a number of times, making various inquiries. On July 29th Messrs. Eggers and Muilenburg went to defendant's office to pick up the tickets. He told them that he had not obtained them yet, but that he would deliver the tickets to them personally on Monday, August 2nd. Not having received the tickets, Mrs. Muilenburg and Mr. and Mrs. Eggers went to his office on August 2nd and were advised that defendant was in Colorado Springs on business and that the secretaries in the office felt that they were out of a job. They returned to the office the following day and found the office 'nailed shut.' They never received the tickets and did not make the trip to Las Vegas. The defendant never made the airline reservations.

The defendant was in jail in Colorado Springs on an unrelated charge from July 30th to August 11th. Later he attempted to make refund to Mrs. Muilenburg of the $300, but she refused to accept it because this case had already been filed.

A representative of Frontier Airlines testified as follows: That an individual's round trip fare to Las Vegas was $106; that husband and wife could be ticketed for the round trip for $185.50; that, if a group of 40 or more applied for the round trip seven days before departure, the fare would be discounted 30%, but the husband-wife discount would not apply--I.e., under the group rate each would pay 70% Of $106 or $74.20, and each couple would...