Perry v. People

• Decision Date: 02 July 1906
• Citation: 87 P. 796,38 Colo. 23
• Parties: PERRY et al. v. PEOPLE.
• Court: Colorado Supreme Court

87 P. 796

38 Colo. 23

PERRY et al. v. PEOPLE.

Supreme Court of Colorado

July 2, 1906

Rehearing Denied Dec. 3, 1906.

Error to District Court, Mesa County; Theron Stevens, Judge.

Warren Perry and others were convicted of larceny, and they bring error. Affirmed.

Carnahan & Van Hoorebeke, for plaintiffs in error.

N. C Miller and W. R. Ramsey, for the People.

STEELE J.

Separate information were filed against each of the defendants; one charging him with having feloniously and burglariously broken and entered the shop and storehouse of the W. F. White Mercantile Company, a corporation, etc., with intent to commit larceny, and another charging him with having, on the same day, feloniously stolen, taken, and carried away various articles of personal property, 'of the goods, chattels and personal property of the W. F. White Mercantile Company a corporation under the laws of the state of Colorado.' The cases were consolidated for trial, and the defendants were convicted and sentenced to a term in the penitentiary.

The verdict, upon which the conviction was had, is as follows 'State of Colorado, County of Mesa--ss.: In the District Court. The People of the State of Colorado v. George Perry, Warren Perry, Ben Perry, and Andrew Perry, Defendants. We, the jury in the above-entitled cause, do find the defendants guilty as charged in the information. We further find the value of the goods and property taken to be the sum of seventy dollars. W. W. Wilson, Foreman.' After the trial, and before the filing of the motion for a new trial, the defendant Andrew Perry made an affidavit in which he said that he alone committed the burglary and larceny complained of. The writ of error was issued on behalf of but three of the defendants.

The second assignment of error relates to the reception of testimony over defendants' objection. The witness W. F. White was asked if he was president and manager of the W. F. White Mercantile Company on the 21st day of November, 1904. The objection to this question was that 'it does not call for the best evidence, and for the reason that there is no evidence showing that there is such a firm or corporation as the W. F. White Mercantile Company.' The following was propounded to the witness Cropsey: 'Q. I Will ask you if on November 21, 1904, your company was doing business in this county and state as the W. F. White Mercantile Company?' This was objected to because not the best evidence. The objection to this testimony was properly overruled. In criminal cases it is not necessary to produce the articles of incorporation for the purpose of proving the corporate existence of a concern from which goods are alleged to have been stolen, but the incorporation may be proved by reputation. It is now claimed that there was no proof of the existence of the W. F. White Mercantile Company, a corporation, alleged in the information as the concern from which the goods were stolen, and that the defendants were entitled to a new trial because of such failure of proof. If the question had been presented to the trial court and an adverse ruling given, we should probably direct a new trial; but nowhere was the point made that it was not shown that the W. F. White Mercantile Company was a corporation. Advantage of this might have been taken by motion to discharge at the close of the people's case, by motion for a new trial, or by motion in arrest of judgment; but, as the question was not presented, we cannot consider it here.

Subdivision 5 of plaintiffs' second assignment is as follows: 'In admitting testimony of the witness Cropsey as to the existence of the corporation of the W. F. White Mercantile Company, it not being the best evidence.' From this it would seem that counsel was of opinion that the existence of the corporation had been established by secondary evidence. We are of opinion that the testimony did not show the existence of a corporation or of a concern doing business as a corporation, as required by the decision in Miller v. People, 13 Colo. 168, 21 P. 1025; but, as the objection to this testimony was properly overruled, we must hold that there is no merit in plaintiffs' contention.

Witnesses had testified to having made a search of the premises where the defendants resided, and to having found two overcoats in a creek near their house. A bundle of new socks and a box of cartridges were found in a trunk belonging to one of the defendants, and several rifles were found in a seamless sack buried in a pile of stone near the house. The rifles were positively identified as the property of the W. F. White Mercantile Company. One of the persons connected with the store testified with reference to the overcoats: 'This overcoat, marked People's Exhibit J,' would be pretty hard to identify. It is one of the stock of overcoats--I mean to say that it is one of a stock from which we missed one that morning. The manufacturer's tag has been torn off. It does not look to me that it is an overcoat that has been worn. * * * This overcoat, marked 'Exhibit K'--we missed an overcoat of that same pattern from our store that morning. I could not say positively that that is our coat, because the tags are torn off. I have examined it carefully for tags.' Another witness, when shown the overcoats, said, when asked if they belonged to the store: 'I believe they came from there.' This, we think, was a sufficient identification to have submitted the question to the jury. One of the witnesses said: 'My attention was called to a place that day where the overcoats were found.' The defendants' counsel objected, 'for the reason that no overcoats are charged in the information.' The district attorney then said: 'I want to show what the defendants did. I am not going to identify the overcoats.' The objection was then overruled. The objection was properly overruled. The information charged that two overcoats had been stolen by the defendants. Moreover, they were identified with sufficient certainty to have submitted the question of their ownership to the jury. The testimony showed that certain articles were missed from the store of the White Mercantile Company. Many articles of the same kind were found concealed on or near the ranch of the defendants. Certain of the articles were positively identified as being the property of the mercantile company, other articles could not be positively identified. We think it was for the jury to determine from all the facts and circumstances whether the property found on the ranch of the defendants had been stolen.

The...