Southard v. People, 23656

• Citation: 174 Colo. 324,483 P.2d 962
• Decision Date: 19 April 1971
• Docket Number: No. 23656,23656
• Parties: Jackie D. SOUTHARD, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
• Court: Supreme Court of Colorado

Page 962

483 P.2d 962

174 Colo. 324

Jackie D. SOUTHARD, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.

No. 23656.

Supreme Court of Colorado, In Department.

April 19, 1971.

Edward H. Sherman, Truman E. Coles, Public Defenders, Grady Bryan Morgan, Asst. Public Defender, Denver, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Michael T. Haley, Asst. Atty. Gen., Denver, for defendant in error.

KELLEY, Justice.

The defendant, Jackie D. Southard, a Denver police officer, was charged with and found guilty of burglary of Hatch's Card Shop, Inc., located in Bear Creek Shopping Center. The defendant has sued out a writ of error seeking reversal of the judgment rendered on the jury's verdict.

The sole issue raised by the defendant is the sufficiency of the evidence, as a matter of law, to sustain the conviction. His contentions are that the court erred in failing to grant his motion for judgment of acquittal at the conclusion of the People's case and thereafter at the conclusion of all the evidence.

Defendant's claim of insufficiency of the evidence is based upon the fact that the evidence being circumstantial was speculative. A verdict of guilty must be sustained if there is substantial evidence to support it, viewed in the light most favorable to the People. Bennett v. People, 155 Colo. 101, 392 P.2d 657.

The quantum of proof where guilt is based upon circumstantial evidence is the same as where it is based on direct evidence; that is, it must be sufficient to establish guilt beyond a reasonable doubt. Corbett v. People, 153 Colo. 457, 387 P.2d 409.

It is noted by Mr. Justice McWilliams in Pena v. People, 147 Colo. 253, 363 P.2d 672, that,

'* * *, circumstantial evidence is not always inferior in quality nor is it necessarily relegated to a 'second rate' status. In Martinez v. People, 63 Colo. 347, 166 P.2d 241, 242, we said: '* * * the evidence is, as mentioned above, circumstantial only. This fact is, of course, not sufficient to justify a reversal of the judgment, as circumstantial evidence may be, and frequently is, most convincing and satisfactory. * * *' Also, in Ruff v. People, 78 Colo. (474) 475, 242 P.2d 633, 634, it is said that in any criminal case material, relevant and competent evidence sufficient to convince the jury is necessary to sustain a conviction, 'nothing more, nothing less', and that 'circumstantial evidence is as competent and potent in such a case as any other.' The test is still whether the facts and circumstances are of such quantity and quality as to legally justify a jury in determining guilt beyond a reasonable doubt. If such be the case, then this Court should not, indeed cannot, set aside the solemn findings of the trier of the facts.'

Our review of the record discloses that the evidence was of such quality and quantity as to amply support the verdict. We, therefore, affirm the judgment of the trial court.

The testimony of the witnesses developed the following facts:

Mr. Ron Stowell, the manager of Hatch's Card Shop, Inc., located at 3100 South Sheridan in the Bear Valley Shopping Center in Denver, Colorado, was the last person to leave the shop in the evening of April 1, 1967. Prior to leaving the store, he checked and made sure that all the doors, including the storeroom door, were locked. The storeroom door was subsequently checked and found to be locked by Denver Patrolman Frank Schultz at 3:10 or 3:15 a.m. on April 2, 1967. A few minutes later the door was again checked, this time by Denver Patrolman Larry J. Driskill.

At 4:00 a.m. Officer Driskill rechecked the shopping center. As he pulled into the shopping center, he observed a patrol car with the headlights on and the driver's door open, parked in front of Hatch's store. There was no one either inside or outside the car. Officer Driskill drove around the shopping center and upon returning, observed the defendant, Southard, standing by the car. Officer Driskill asked the defendant what he was doing. The defendant replied that the storeroom door to the Hatch's store was open and that Driskill should report this to the station. The defendant further stated that Driskill should take credit for finding the open door, since the card shop was in Driskill's...