Shepherd v. People
| Decision Date | 07 April 1924 |
| Docket Number | 10915. |
| Citation | 75 Colo. 251,225 P. 221 |
| Parties | SHEPHERD v. PEOPLE. |
| Court | Colorado Supreme Court |
Department 3.
Error to District Court, City and County of Denver; James L Cooper, Judge.
J. F Shepherd was convicted of grand larceny, larceny as bailee and obtaining money by means of the confidence game, and brings error.
Supersedeas denied, and judgment affirmed.
Bert Martin, of Denver, for plaintiff in error.
Wayne C. Williams, Atty. Gen., and Joseph P. O'Connell, Asst Atty. Gen., for the People.
The plaintiff in error, herein designated as defendant, was convicted upon three counts of the information filed against him; the first count charging grand larceny, the second count charging larceny as bailee, and the third count charging the obtaining of money by means of the confidence game. The sentence imposed upon the defendant was not less than 18 months nor more than 2 years upon each count of the information; the sentences to run concurrently. The defendant brings the case here for review, and applies for a supersedeas.
The defendant's third and fourth assignments of error relate to the admission and rejection of evidence. These assignments cannot be considered because not in compliance with rule 32 of this court. Dingle v. Swain, 15 Colo. 120, 124, 24 P. 876; Andrew v. The Benight-Latcham Carpet Co., 72 Colo. 472, 474, 211 P. 378; Patton v. People (Colo.) 221 P. 1086.
The defendant also assigns as error that the court refused to admit in evidence Exhibit No. 1. This exhibit does not appear in the bill of exceptions. In order to have the action of the court in this respect reviewed, the exhibit should have been set out in the record. All presumptions are in favor of the rulings of the trial court, and, where a document offered in evidence is rejected, and it is not set out in the bill of exceptions, we must presume that it was incompetent, and that it was not erroneously rejected. State v. Van, 44 Mont. 374, 120 P. 479; 17 C.J. p. 174. Williams v. State, 127 Ind. 471, 26 N.E. 1082; Musser v. State, 157 Ind. 423, 441, 61 N.E. 1; State v. Hathaway, 115 Mo. 36, 45, 21 S.W. 1081.
Moreover, the defendant does not appear to have been harmed by the rejection of the exhibit. He was permitted to testify that Mrs. Alwert had listed her property with him, and that the exhibit was a memorandum of the listing entered by himself at the time Mrs. Alwert gave him the property for sale. Mrs. Alwert flatly contradicted his testimony; testifying that she never listed the property with him.
The defendant also contends that the evidence was not sufficient to justify defendant's conviction of any offense charged in the information; that, if he was shown to be guilty of any offense, it was that of obtaining money by false pretenses, which was an offense not charged in the information; and that the court should have sustained his motion for a directed verdict.
The defendant further insists that the court erred in sentencing the defendant upon each count of the information. The court did not, we think, err in the respects mentioned. It appears from the evidence that Mrs. Webb was...
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... ... 214 P. 391; Andrew v. Carpet Co., 72 Colo. 472, 211 ... P. 378; Conner v. Sullivan, 84 Colo. 572, 272 P ... 623.' Cunningham v. Snelling, 91 Colo. 454, 456, ... 15 P.2d 713. See also: Buchanan v. Burgess, 99 Colo ... 307, 62 P.2d 465; Wilson v. Giem, 90 Colo. 27, 5 ... P.2d 880; Shepherd v. People, 75 Colo. 251, 225 P ... 221; Patton v. People, 74 Colo. 322, 221 P. 1086 ... True, Supreme Court Rule 35 says: 'Counsel will be ... confined to a discussion of the errors stated, but the court ... may, in its discretion, notice any other error appearing of ... [105 ... ...
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