Stull v. People

Decision Date21 September 1959
Docket NumberNo. 18515,18515
Citation344 P.2d 455,140 Colo. 278
PartiesChester V. STULL, Plaintiff in Error, v. PEOPLE of the State of Colorado, Defendant in Error.
CourtColorado Supreme Court

Lattimer & Robb, Alfred Z. Craddock, Pueblo, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Dep. Atty. Gen., for defendant in error.

FRANTZ, Justice.

Stull was accused by information of the crime of receiving stolen goods, and upon trial was found guilty by the jury. From the ensuing judgment and sentence he sues out this writ of error. In the proceeding before us he assigns twenty-six grounds for reversal, all of which easily fall into five general categories. One of these, insufficiency of evidence to sustain a conviction, comples reversal of the judgment, and to this we now attend.

The chief prosecution witness, an unmarried female, was the cashier-bookkeeper of the Rocky Mountain Bank Note Company. Stull, a married man, was a salesman for the company, and his duties required considerable travel in the states of Colorado and Kansas.

In her testimony this witness related how the friendship between her and Stull developed; how she travelled to distant points to be with him; and how by embezzlement she obtained money from her employer to turn over to him. It appears from her testimony that she told Stull that she 'might receive' some money from a Frank Smoot upon his death. The record is not clear as to the date of his death, although it may be fairly inferred that he died during the time the witness was advancing money to Stull.

Actually, she gave him money on several occasions in an envelope at the dock of the company, during working hours. There was no showing that other persons were not at the dock when these moneys were delivered to him. Testimony as to when and how she paid gambling losses is not clear; the evidence does not indicate that it was covertly done. She paid a great many of his bills directly, and his business expenses may have been, for aught the record reveals, taken care of openly.

She testified that she never told Stull the source of the money she was turning over to him. When the company learned of her defalcations, she called Stull, who was absent from the city, and told him for the first time that she had been embezzling money and advancing it to him. In this conversation she asked Stull not to hate her, and further testified:

'Q. Now, what was the reason for saying, then, to Mr. Stull on the 'phone, 'Please don't hate me.' A. I didn't want anybody to despise me, him or anybody else for what I had done.

'Q. Then, you were afraid, then, that when Mr. Stull found out you were embezzling money from the bank note company, that he might hate you, is that right? A. Not necessarily.

'Q. You said this to Mr. Stull? A. Well, yes, I guess that would be it, then.'

Other witnesses testified to the fact that Stull had deposited these sums in bank accounts, one of which was an out-of-state bank. It would appear that the purposes for which Stull said he needed the money were generally not the purposes for which he obtained the money. Notwithstanding he had this money in several bank accounts at the time her misdeeds were discovered, and notwithstanding her request that he make provision to return the money so that she could make her employer partially whole, Stull lied to her, telling her of his inability to get the money. Other circumstantial evidence of similar import was relied upon.

An integrant of the crime of receiving stolen property is knowledge that it has been stolen. C.R.S. '53, 40-5-12; Curl v. People, 53 Colo. 578, 127 P. 951, Ann.Cas.1914B, 171; Sitterlee v. People, 67 Colo. 523, 186 P. 527, 528. Interrogation as to Stull's knowledge that the money delivered to him was embezzled evoked negative responses; not one witness testified that the accused knew the money was embezzled, but, on the contrary, such testimony as was elicited on the subject was to the effect that he did not know. Negation of 'the essential element of guilt--defendant's knowledge that the property was stolen at the time he received it--' makes an incomplete case, one which should not have been submitted to the jury for deliberation and verdict. Sitterlee v. People, supra.

Being confronted with the question whether there was knowledge on the part of Stull that the money was embezzled at the time he received it, our answer must be that as the possibility of it cannot be denied, so neither can the probability of it from the the proof adduced be affirmed. Proof that ascends no higher than the level of suspicion, surmise or conjecture has no substance in our system of jurisprudence, whether the problem considered be criminal or civil. State v. Oxendine, 223 N.C. 659, 27 S.E.2d 814 (receiving stolen goods case); 1 Underhill's Criminal Evidence (5th ed.) § 17, pg. 21, 22; 1 Wharton's Criminal Evidence (12th ed.) § 11, pg. 26, 27; Neal v. Wilson County Bank, 83 Colo. 118, 263 P. 18; Denver & R. G. R. Co. v. Thompson, 65 Colo. 4, 169 P. 539. See Sitterlee v. People, supra.

In our view this evidence lacked the content necessary to permit submission of the case to the jury. In fact, much of the evidence for the prosecution directly disproved knowledge on the part of Stull that the money was embezzled. In this respect the District Attorney is to be commended. As an officer of the State, he represents the people, of whom the defendant is a member, and his duty is to present all available evidence tending to aid in ascertaining the truth. Be it remembered that the State is just as intensely interested in the acquittal of the innocent as it is in the conviction of the guilty. State v. Guilfoyle, 109 Conn. 124, 145 A. 761.

There is considerable similarity between the present case and the case of Monteresi v. State, 160 Fla. 489, 35 So.2d 582. We quote:

'* * * Here a trusted employee, over a period of years--from day to day, misappropriated about $9,514.30 of his employer's money and gave it to appellant to play a number game commonly known as Bolita. Appellant would call upon the employee just before or after the usual working hours to get the money. The sums ranged from one to three hundred dollars a week. In the meantime all winnings were played back into the game. Finally the employer was called to meet an overdraft and learned, for the first time, of the embezzlement.

' It was necessary for the state to show that appellant knew * * * that the money was embezzled. In this regard this statute is similar to the companion law of receiving stolen property. Sec. 811.16, Fla.Stat., 1941, F.S.A.

' We find a total lack of evidence to meet the announced rule. We cannot attach guilty knowledge to appellant simply because the money was passed to him out of the usual hours of business and out of the presence of others. The evidence, in its present state, is insufficient to sustain a conviction. The judgment is reversed and a new trial is granted.'

Our determination that the evidence was insufficient to justify submission of the case to the jury ordinarily would make unnecessary the consideration of any of the other points ascribed as grounds for reversal; but we cannot leave unnoticed the procedure adopted by the trial court in receiving evidence of so-called similar transactions, because it followed dangerous innovation where once an established mode prevailed, and in resorting to such innovation the trial court used a pattern for the admission of evidence of other transactions which should not be emulated, ever. Motivation for our discussing the similartransactions doctrine springs from (1) the fact that this court has permitted a creeping corruption of the rule and its application to develop by inconsistent pronouncements in its decisions, and (2) an abiding desire to keep future error from emerging in this or any other trial in which recourse is had to this kind of evidence. That the trial court was led astray is understandable when a review of our decisions reveals an appalling internal inconsistency in the similar transactions rule and how it shall be used.

A defendant should be tried only for the offense with which he stands charged. Gill v. People, 139 Colo. ----, 339 P.2d 1000, decided June 1, 1959. He should not be tried for a crime wholly independent of the offense for which he is on trial. Nor should he be expected or required to meet anything other than the specific accusation made against him. An accused has the right to know precisely what he is to defend against.

And a presumption of guilt should not be generated against an accused by showing that he committed a crime indicative that he is a depraved person who likely would commit the crime for which he is being tried. Basic to our criminal law concepts is the commandment that: 'Thou shalt not convict a person of an offense by proof that he is guilty of another.'

Bearing in mind that evidence of similar acts has inhering in it damning innuendo likely to beget prejudice in the minds of jurors, and that such evidence tends to inject collateral issues into a criminal case which are not unlikely to confuse and lead astray the jury, it becomes exigent that courts observe the fine balance in regard to such evidence that must exist between the necessity of proof on the part of the prosecutor and the danger of unfair prejudice to the defendant. Warford v. People, 43 Colo. 107, 96 P. 556; Jaynes v. People, 44 Colo. 535, 99 P. 325, 16 Ann.Cas. 787; Webb v. People, 97 Colo. 262, 49 P.2d 381.

To cope with the intrinsic dangers of admitting in evidence proof of similar acts and yet to make available such evidence in the proper setting, this court has from time to time laid down some rather stringent conditions for the admission of evidence of other conduct of the defendant. These conditions are rules which have as their aim the equilibration of the necessity of proof and the danger of unfair prejudice, of which...

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