Scott v. People
| Decision Date | 19 August 1968 |
| Docket Number | No. 22613,22613 |
| Citation | 444 P.2d 388,166 Colo. 432 |
| Parties | John Ervin SCOTT and John Sandy Chavez, Plaintiffs in Error, v. The PEOPLE of the State of Colorado, Defendant in Error. |
| Court | Colorado Supreme Court |
Edward H. Sherman, Public Defender, Stephen C. Rench, Asst. Public Defender, Denver, for plaintiffs in error.
Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., Robert C. Miller, Asst. Atty. Gen., Denver, for defendant in error.
John Ervin Scott and John Sandy Chavez, hereinafter referred to as the defendants or individually by name, were each charged in a six count information with the following offenses:
1. Burglary
2. Conspiracy to commit burglary
3. Larceny
4. Conspiracy to commit larceny
5. Receiving stolen property
6. Consiracy to receive stolen property
At the conclusion of the evidence prior to giving the case to the jury, the trial court on motion by defendants' attorney dismissed the fifth and sixth counts relative to receiving stolen property and conspiracy to receive same, and these counts are not now in issue.
The jury returned a verdict of not guilty as to the burglary charge, but found both defendants guilty of conspiracy to commit burglary, larceny and conspiracy to commit larceny. Thereafter, defendants' motions for judgment of acquittal or in the alternative, a motion for a new trial was denied. Both defendants received sentences of from eight and one-half years to ten years on each of the three convictions, being counts two, three and four of the information, sentences to run concurrently. By writ of error, the defendants seek a reversal of the judgment and sentence.
The evidence showed that on the night of October 6, 1965, at or about 9:00 P.M., Ronald L. Smith heard some noise in the alley behind his house. Upon investigation he saw two or possibly three men in the darkness attempting to load some object into the trunk of a 1951 Plymouth. The car was fourteen years old and had had some custom work on it and, although there was some conflict in the evidence as to its exact color, it apparently was a car easily identified as being different from most automobiles. The witness heard one of the men say, The men then left in the car and the witness, upon investigation, found the object to be a console TV set situated on the driveway near or in the alley next to the ash pit of his neighbor's house.
A short time later the witness observed two men coming from the front area of a neighbor's house and proceeding in the direction of the TV set. The witness called to them but the two men started to run. The witness could not identify any of the men and could not tell if the two men who came from the front area were the same men who had earlier been trying to load the TV set into their car trunk. He did see from the street light that one of the men who came around the house had blond hair and was of medium build. Defendant John Ervin Scott had blond hair, but could not be positively identified by the witness as one of the men.
Police were called and the investigation revealed that the TV set had been removed from the house of Mr. Mauro who lived in the house across the alley from the witness Smith. A window had been broken in the back door of Mr. Mauro's house and a forceable entry had been made. The TV in question had been moved out the back door to the alley where it was recovered. A portable TV was still inside the house, but had been moved from its stand to the kitchen. No one was home at the Mauro house when the entry was made. Palm prints were lifted from the TV set found in the alley by an officer from the police laboratory and these prints were later testified to as matching the palm prints of both defendants. The defendants' prints were taken at police headquarters after their arrest for purposes of comparison.
On the same night of the offense, the investigating officers found the 1951 Plymouth automobile in question parked about half a block down the street from Mr. Mauro's house. The officers found a billfold in the front seat and another billfold in the glove compartment. One billfold contained the name and effects of defendant John Sandy Chavez and the other contained the effects of a third party, Edward Chavez. Four officers then went to 4229 Shoshone, which is about a mile or a mile and one-half from the Mauro house. The address designated as 4229 Shoshone was known to the police to be the residence of Edward Chavez. The house was dark when approached by the police and several minutes transpired after knocking before any sound was heard from within. Edward Chavez, partially dressed, came to the kitchen door and the two officers at that door identified themselves as police officers and asked if they could come in. It was apparent one of the officers knew Edward Chavez and Edward Chavez knew him from some past relationship. Edward Chavez said they could come in and opened the door. The officers went into the house and asked that the lights be turned on, which was done. The front door was then opened and the other two officers were allowed to enter. The two defendants were found sitting in the dark in the front room fully dressed. There were two women in the house and two small children, who had already prepared for bed. The officers advised the three men that they were under arrest for investigation of burglary. The three were handcuffed and taken to police headquarters at about 11:00 P.M.
The police had no search warrant for the automobile and did not have a warrant for the arrest of the three men which included the two defendants; and moreover, they did not have a search warrant for the residence of Edward Chavez. The defendants were advised of their rights and interrogated, but gave no information and signed no statements. They were finger and palm printed at the police station.
Trial was started on January 14, 1966, and concluded on January 18, 1966. The defendants were represented by counsel throughout the preliminary proceedings and also at the trial. The defendants did not testify at the trial and no evidence was presented by them. The sole question for our determination on this writ of error is the sufficiency of the People's evidence to prove the charges beyond a reasonable doubt.
The jury apparently was not convinced beyond a reasonable doubt that the two defendants were guilty of the burglary; they did, however, find them guilty of the other three counts, namely, counts two, three and four.
The defendants allege six errors on review which will be dicussed in the order presented.
First: The defendants argue that the evidence was insufficient to support the conviction of larceny since what happened could be no more than attempted larceny. The defendants contend that the TV set, though moved out of the house, was left standing at the owner's back property line and in their opinion within his lot line and not in the alley. We find no merit to this argument. There was direct evidence that an eye witness saw the TV set in the hands of at least two men who were attempting to load it into the trunk of their car which was parked in the alley. The fact, if it be true, that they set it back down on the owner's property and not in the alley does not lessen the offense. There certainly was sufficient evidence to support the jury's verdict. The fact that the defendants were not able to carry away the TV set because it wouldn't fit into the trunk and because they were frightened off at the second approach by the neighbor does not mean that a crime of larceny had not been completed. The evidence reveals that the defendants did have complete control of the TV set, even if only for a few minutes, and did have it in their possession on and off the premises of the owner without his consent.
Second: The defendants argue that the trial court erred in failing to grant their motion for judgment of acquittal since they were found guilty of conspiracy to commit burglary, larceny and conspiracy to commit larceny upon the same evidence which the jury rejected in finding them not guilty of burglary. The defendants base their argument entirely on Robles v. People, 160 Colo. 297, 417 P.2d 232. A careful reading of this case will reveal that it does not establish as a matter of law that a defendant cannot be found guilty of conspiracy to commit burglary, larceny and conspiracy to commit larceny when the jury has found the defendant not guilty of burglary. That case was decided on its own facts; they are in no way similar to the facts of this case. In Robles, the court stated: 'The very same evidence which the jury apparently did not believe was sufficient to prove the defendant participated in the robbery was the Only evidence which could prove him guilty of conspiracy.'
In this case the evidence is not so limited. There was physical evidence of a breaking and entering; there was an eye witness to the larceny of the TV set; the same witness overheard the conspiracy statement to go get a truck because the trunk of the car would not be adequate to hold the TV set. Furthermore, the palm prints of the defendants were found on the TV set; the defendants were...
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