Sanders v. People, 14999.

• Decision Date: 23 March 1942
• Docket Number: 14999.
• Citation: 109 Colo. 243,125 P.2d 154
• Parties: SANDERS v. PEOPLE.
• Court: Colorado Supreme Court

125 P.2d 154

109 Colo. 243

SANDERS v. PEOPLE.

No. 14999.

Supreme Court of Colorado, En Banc.

March 23, 1942

Rehearing Denied April 27, 1942.

Error to District Court, City and County of Denver; Henry S Lindsley, Judge.

James Sanders was convicted of larceny by embezzlement and as bailee under the six months statute, and he brings error.

Judgment reversed, and case remanded with directions to grant motion for new trial.

YOUNG C.J., BAKKE and BURKE, JJ., dissenting.

Byron G. Rogers and Frank A. Bruno, both of Denver for plaintiff in error.

Gail L. Ireland, Atty. Gen., H. Lawrence Hinkley, Deputy Atty. Gen., and James S. Henderson, Asst. Atty. Gen., for defendant in error.

OTTO BOCK, Justice.

Plaintiff in error, to whom we hereinafter refer as defendant, was charged in two counts of an information with the crime of larceny by embezzlement and as bailee under the Six Months Statute ('35 C.S.A. c. 48, §§ 85, 87); was tried convicted and sentenced to serve from five to six years in the penitentiary on each count, sentences to run concurrently. He seeks reversal by writ of error.

Six grounds are urged for reversal, but we deem it necessary to consider only the following: (1) Failure to require the people to elect upon which of the two counts in the information they would prosecute; (2) permitting the people to cross-examine the complaining witness; (3) permitting the testimony of the witness Walker to stand and to so prejudice the rights of defendant as to make a fair and impartial trial impossible.

1. At the conclusion of all the testimony counsel for defendant moved the court to require the district attorney to elect upon which of the two counts he desired to proceed. This motion was denied. There can be no question that the counts relate to one and the same transaction. A motion of this character generally is addressed to the sound discretion of the court. Smaldone v. People, 102 Colo. 500, 81 P.2d 385. Since both counts were based upon the same transaction, it would have been proper to have requested the court to instruct the jury that a verdict of guilty could be returned only on one of the counts. This, counsel for defendant failed to do. The denial of such a request, if made, might have constituted prejudicial error. Inasmuch as the sentences run concurrently, there was, in this instance, no prejudicial error. Grandbouche v. People, 104 Colo. 175, 188, 89 P.2d 577.

2. It is somewhat difficult to determine whether the redirect examination of the complaining witness by the district attorney constituted cross-examination. It clearly appears that practically all of the questions were leading. On direct examination the witness' testimony was not hostile, nor did it indicate any surprise to the prosecution. While under cross-examination by counsel for defendant, the witness' testimony was somewhat inconsistent with the contents of a written statement made by her to the prosecutor, and it was after that evidence had been given that the district attorney proceeded to examine the witness on its contents. No foundation for impeachment was laid. This evidence includes statements that were irrelevant and it may have been prejudicial to defendant. Since the matter of leading questions is one largely within the discretion of the trial court, and in view of our disposition of the case, we refrain from a determination of this question.

3. Relative to the testimony of the witness Walker, a detective then assigned to the office of the district attorney, the record discloses the following:

'The Court: Maybe I can help you out. I believe the rule is that her statement out of the presence of the defendant would be hearsay. Now, the question directed to you is, did anything happen at any time in the nature of any force or coercion on your part to force this lady to sign any papers?

'The Witness: No sir. I told her in order to get her car there would have to be a pick-up on the car, and I issued a pick-up for Winfield, Kansas, Wichita, Kansas and Oklahoma City. After he was apprehended, after the defendant was apprehended I went over to see Sophia Perrin and told her there had to be a complaint signed. She came to this office and I took her into Mr. Carroll. I told Mr. Carroll there was a man we wanted for embezzlement. He says 'Who is it?' I says 'I handled the man Before, and' I says 'he has a record a mile long--'

'Mr. Moore: Now, Mr. Walker, all the time he has been here, knows that is incompetent.

'Mr. Rosner: If your honor please, I will go ahead in the regular way if counsel will let me.

'Mr. Moore: Just a moment----

'Mr. Rosner: I would just as soon ask questions and----

'Mr. Moore: I

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