Peters v. People

• Decision Date: 05 November 1962
• Docket Number: No. 19994,19994
• Citation: 376 P.2d 170,151 Colo. 35
• Parties: Wendell A. PETERS, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 170

376 P.2d 170

151 Colo. 35

Wendell A. PETERS, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.

No. 19994.

Supreme Court of Colorado, En Banc.

Nov. 5, 1962.

Rehearing Denied Dec. 3, 1962.

Fugate, Mitchem, McGinley & Hoffman, Denver, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., J. F. Brauer, Asst. Atty. Gen., Denver, for defendant in error.

MOORE, Justice.

Plaintiff in error, to whom we will refer as defendant, was accused by information filed in the district court of the City and County of Denver with having committed crimes as follows: In count one with burglary; in count two with larceny; in court three with receiving stolen goods; and in count four it was alleged that he 'was the bailee by finding and otherwise of a Monroe electric calculator Serial No. J. 808495 of the value of Four Hundred Forty Five Dollars' and certain other machines which are particularly described, owned by the Monroe Calculating Machine Company, Inc., and that 'while so the bailee thereof, said Wendell A. Peters, then and there knowing the identity of the owner of said property and having the means of ascertaining and knowing the rightful owner thereof, made no effort to find, and restore the said property, to its rightful owner * * * and did then and there unlawfully, wilfully and feloniously convert said Monroe electric calculator to his own use with intent to steal the same * * *.' As to all counts a plea of not guilty was entered.

At the conclusion of the evidence the burglary and larceny counts (one and two) were withdrawn and the case was submitted to the jury on the third and fourth counts. The jury returned a verdict of guilty on the fourth count. Motion for new trial was filed and denied, and judgment entered on the verdict.

As grounds for reversal it is argued that the trial court committed error in receiving evidence tending to establish that defendant had in his possession, and converted to his own use, items of personal property which had been stolen in burglaries other than the one in which the items mentioned in the fourth count of the information were taken.

The prosecution's evidence disclosed that Exhibits A, B, C, and D, (a typewriter and three calculators) were missing after a burglary of the Monroe Calculating Machine Company on September 15, 1958. Exhibit B, one of the calculating machines, was sold by defendant in July of 1959 and police officers found Exhibits A, C, and D in defendant's home or in his office on the 14th and 15th of October, 1960. All four of these exhibits, A, B, C, and D were set out in the larceny by bailee count (the count upon which defendant was convicted) as having been in defendant's possession, but he was accused of wrongfully converting only Exhibit C. The prosecution was also permitted to show that Exhibit K, a Royal typewriter, missing from the Binx-Johnson Company in Denver after a breakin on September 9, 1960, also was sold by defendant, on October 3, 1960. Additionally, the prosecution established that Exhibit O, a television set, was missing from a burglarized television repair store in May 6, 1960, and was found in defendant's home on October 14, 1960; that Exhibit P, a typewriter, was missing from a typewriter repair place in Lakewood in September of 1958 and was found in defendant's home on October 14, 1960.

Upon questioning and arrest, defendant talked to police officers about all of these items and explained that Exhibits B, C and D, three adding machines, were found in the basement of the building he had purchased. At the trial defendant's story changed; he then claimed to have found Exhibit B in the basement, but that Exhibits C and D were left with him by a client. He testified that Exhibits A and P, two typewriters, were given to him by his father to help equip his office; that Exhibit O, the television set, was left with him by Jake Price and J. D. Sterling as security for a fee, and Exhibit K was left by another party as collateral for another fee.

Defendant objected at the trial, and here contends, that evidence relative to any exhibits other than A, B, C, and D, they being the only articles described in any of the counts in the information, was erroneously admitted and prejudicial. Basically, he claims that such other transactions were too remote in both time and place to be admissible under the exception allowing evidence of transactions not charged in order to show intent, knowledge, plan, or scheme to produce a result of which the act charged in the information is a part. Defendant first points out that Exhibits A, B, C and D were missing from their rightful owner's business establishment after a burglary on September 15, 1958, and that most of the other items were missing after burglaries occurring some time in 1960. In the case of Exhibit P, the burglary resulting in its loss occurred in September of 1958. Based on these dates, defendant claims that since items mentioned in the information were missing in 1958 and others not mentioned were missing in 1960, evidence of the latter should have been excluded for the reason that too much time had intervened to warrant introduction of the evidence on the issue of intent, scheme, design, etc.

We are not concerned with the burglaries as such because defendant was convicted only of larceny by bailee, which could well have occurred at any time after the items were stolen. Therefore the date on which the several items were first missing is not necessarily controlling on the question of whether the evidence was properly admitted over an objection that the incidents were too remote in time. It is true that defendant was charged with having committed the crime of larceny by bailee on September 15, 1958, but the charge is sufficiently proved if the evidence shows that the crime occurred at any time within three years prior to the filing of the information. Laycock v. People, 66 Colo. 441, 182 P. 880; Noble v. People, 67 Colo. 429, 180 P. 562; Imboden v. People, 40 Colo. 142, 90 P. 608.

Here there was evidence from which the jury might have concluded that defendant had come into possession of the stolen property lawfully; that he thereafter learned that said personal property was stolen in the burglary of the premises of the Monroe Calculating Machine Company and with full knowledge thereof converted said property to his own use and withheld the same from its lawful owner.

Defendant upon being questioned by police officers offered an explanation as to how he came into possession of the property and denied any knowledge that the property was stolen or any intent to withhold it from its true owner. It was proper for the district attorney to challenge this exculpatory statement by competent evidence. Evidence of transactions other than the offense charged in the information is admissible to prove scienter, or guilty or criminal knowledge with respect to the crime charged. Evidence that logically tended to weaken the assertions of the defendant that he had no knowledge that the property mentioned in the information was stolen, was proper for consideration of the jury. As stated in Hampton v. People, 146 Colo. 570, 362 P.2d 864, evidence of a transaction similar to that charged in the information 'tends to weaken...