Rhodus v. People, 21458

• Decision Date: 04 October 1965
• Docket Number: No. 21458,21458
• Citation: 158 Colo. 264,406 P.2d 679
• Parties: Larry RHODUS, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 679

406 P.2d 679

158 Colo. 264

Larry RHODUS, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.

No. 21458.

Supreme Court of Colorado, In Department.

Oct. 4, 1965.

Rehearing Denied Nov. 1, 1965.

Daniel, McCain & Brown, Brighton, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., John P. Moore, Asst. Atty. Gen., for defendant in error.

MOORE, Justice.

Plaintiff in error, to whom we will refer as the defendant, was found guilty of the crimes of burglary, larceny, and conspiracy to commit those offenses. He was sentenced to a term of from five to eight years in the state penitentiary on the burglary and larceny counts, and to three to five years on the conspiracy count, the latter sentence to run consecutively following completion of the former.

As grounds for reversal, counsel for defendant presents argument under five captions as follows:

'A. The court erred in failing to give defendant's requested instruction on alibi and said failure unduly prejudiced the defendant in that it deprived him of his right to have the jury instructed on his theory of the case.

'B. The court erred in admitting People's Exhibit No. 7 for the reason said exhibit was insufficiently identified.

'C. The court erred in admitting People's Exhibit No. 10 for the reason said exhibit was obtained from defendant against his will and in violation of his constitutional rights.

'D. The court erred in submitting Instruction No. 10 to the jury for the reason it is an incorrect statement of the law.

'E. The court erred in refusing to grant defendant's motion for continuance for the reason that the defendant was deprived of his right to obtain witnesses and prepare for trial.'

A brief summary of the details of the crimes involved will make unnecessary any extended discussion of the arguments made for reversal of the judgment.

Evidence was produced which established that defendant, in the company of two others, entered the Adams county premises of Flank Oil Company on the night of May 8, 1963, on three different occasions. After the first two occasions, defendant and his companions returned to an address in Denver with a quantity of Dunlop passenger car tires taken from Flank Oil Company. On the third trip the trio was observed on the Adams county premises by an employee of a neighboring company who reported the situation to the Commerce City police. When the three men noticed the arrival of the police they beat a hasty retreat, alternatively running and walking until they reached a bar in the stockyards area of Denver. They went from the bar to the home of another man. The next day some of the stolen tires were sold and the profits divided among the defendant and him companions. There was evidence produced showing that the three burglars, in their haste, left a number of tires on the ground outside the building from which they had been taken. These tires were admitted into evidence as Exhibit 7, over the objection of the defendant. There was no error committed by the court in this connection. The tires were removed from the building by the burglars with the intent to deprive the owner of cominion over them. The fact that the tires were abandoned in the effort to escape the police does not make...