Sweek v. People
| Decision Date | 15 April 1929 |
| Docket Number | 12221. |
| Parties | SWEEK v. PEOPLE. |
| Court | Colorado Supreme Court |
Casemaker Note: Portions of this opinion were specifically rejected by a later court in 157 P.2d 135
Error to District Court, Baca County; A. F. Hollenbeck, Judge.
Homer Sweek was convicted of larceny, and he brings error.
Affirmed.
Rizley & Loofbourrow, of Beaver, Okl., A. H Alberti, and Hillyer & Hillyer, of Denver, for plaintiff in error.
Robert E. Winbourn, Atty. Gen., and Sidney P. Godsman, Asst. Atty Gen., for the People.
Homer Sweek was convicted of larceny. He was found guilty on two counts of an information; the fifth and the seventh. The fifth count charges him with the larceny of nine hides, one being the property of one person, two being the property of another person, two others being the property of a third person, and the ownership of the remaining four being unknown. The seventh count charges Sweek with the larceny of the same property, owner or owners unknown.
Eight horses and one mule were killed in a field about 10 miles east of Two Buttes, in Baca county, and their hides were removed by some person or persons. This much is undisputed. The people's evidence tends to show the following facts:
The defendant and two other men were seen together in the immediate neighborhood of the crime in the evening of Monday February 6, 1928, the date the crime is alleged to have been committed. The defendant had come some 60 miles to Colorado from Oklahoma that morning, traveling in a Chevrolet truck, equipped with a stock rack. There was a canvas wagon sheet in the truck. He returned to Oklahoma Tuesday evening in the same truck. The tracks in the soil made by the tires definitely identified this truck and enabled the undersheriff to follow the course of the truck from the place of the crime to the place where the defendant admitted that he had stayed all night. The right rear tire had a diamond tread; the left, a Fisk. The tires on both front wheels were Dunlop tires. The tire on one front wheel was put on with one side out and the tire on the other front wheel was put on with the other side out, so that the tread on one front tire 'sloped one way and the tread on the other front tire sloped the other way.' The imprints made by the tires at the place where the crime was committed corresponded in every particular with the imprints made by the truck in which the defendant rode. The tracks on the ground and the condition of the carcasses indicated that the truck had been turned around and backed up to the carcass of each of the nine animals; that the carcass had been fastened to the ground by means of a crowbar driven through the carcass and into the ground; and that the truck probably was used to pull the hide off the animal. There were seen in the truck in which the defendant was riding a crowbar and some animal hides. The witness could not tell how many hides were there. The animals had been shot, and empty cartridge shells were found near the carcasses, and a cartridge shell of the same caliber and make was found at the place where the defendant admitted that he had stopped overnight. In the same field where the carcasses lay a witness found a chain and bloody overalls; also a cap in which was the name of a clothing company at Woodward, Okl.
It appears from the testimony of his own witnesses that the defendant lived in and around Woodward. A witness who saw the defendant in the vicinity of the carcasses on Tuesday, February 7, testified that the defendant told him there that he (the defendant) was skinning the animals that were struck by lightning. All of the evidence, both that introduced by the people and that introduced by the defendant, was to the effect that the animals had been shot. The defendant said to the witness that he did not know to whom the horses belonged, but that he was getting the hides. The witness then asked the defendant what hides he was claiming. The defendant answered, 'Dan Davis' hides and the Dodge hides.' Davis and Dodge both testified that they never had given the defendant permission to take the hides. There was a dead horse there that had not been skinned, and the defendant said to the witness that he believed he would just skin this horse, whereupon the witness remarked, 'I wouldn't have a hide in my possession without a bill of sale to it in Colorado--another fellow's brand on it.' The defendant left without skinning the horse.
At the extradition hearing before the Oklahoma Governor, the defendant testified that he had bought those hides in Oklahoma and had sold them on Wednesday, February 8, to Mr. Chambers. Mr. Chambers is a merchant at Woodward, Okl., who buys produce and hides. The uncontradicted testimony is that the hides were worth from $5 to $6 each. The testimony that the tire marks in the field and those made by the defendant's truck were identical was given by several witnesses.
The defendant himself did not testify. He sought to prove an alibi by the testimony of his two cousins and the wife of one of them. But their testimony as to the defendant's whereabouts leaves unaccounted for a period of time during which the defendant could have committed the crime. The distance between the place where the hides were taken from the animals and the place where those witnesses testified the defendant was seen by them was short, and an automobile could cover the distance in a few minutes.
One of the cousins testified that he saw 'this bunch of horses' alive on Wednesday, the 8th, after the defendant had left for Oklahoma, and that the next day he saw them dead; that they had been shot. Another cousin testified that on the morning of Monday, the 6th, he saw seven of the horses dead; that they had been killed and skinned. Another witness testified that about 4 o'clock in the afternoon of Monday, the 6th, he saw six carcasses in the field; that none was skinned; that he saw a man there who 'looked like he was preparing to skin a horse.' Still another witness for the defense testified that he was in the field on Wednesday, the 8th; that there were no dead horses there at that time; that on Friday, the 10th, he was at the same place and saw some carcasses there. And still another of the defendant's witnesses testified that on Monday, the 6th, at about 1:30 p. m., there were no carcasses there, but that in the morning of Tuesday, the 7th, he saw three carcasses there. The defendant's two cousins and another witness testified that they saw the defendant's truck on Wednesday, the 8th, and that there were no hides in the truck, nor did they see a crowbar, or a chain, or a wagon sheet. Three witnesses testified to the good reputation of the defendant.
Such is the evidence with reference to the defendant's connection with the crime. In their brief, counsel for the defendant challenge (1) the sufficiency of the pleading; (2) the court's ruling, denying their motion to require the people to elect between the fifth count and the seventh count; (3) the court's rulings on the admission of evidence; and (4) the sufficiency of the evidence.
1. It is said that the fifth count is duplicitous; that it charges five separate and distinct larcenies. No more than one offense should be charged in one count; but by the great weight of authority the stealing of several articles of property at the same time and place, as one continuous act or transaction, may be prosecuted as a single offense, although the several articles belong to several different owners. See note, 42 L.R.A. (N. S.) 967, 968; 17 R.C.L. p. 54. This is a humane rule. If each article stolen were of a value sufficient to make the crime a felony, and a separate charge could be filed as to each, a defendant, if convicted, might be sentenced to the penitentiary for the rest of his life.
The fifth count alleges that on a day specified the defendant within the county of Baca, state of Colorado, did 'then and there' steal one horse hide, of the property of Ray Martin, two horse hides, of the property of S. L. Thompson, two horse hides, of the property of John Turner, three horse hides, of the property of some person or persons unknown, and one mule hide, of the property of some person or persons unknown; said hides being of the value of $36. It is said that, where articles are alleged to have been stolen from different persons, it cannot be assumed that they were all stolen at the same time and place; that the information does not allege that they were stolen at the same time and place, and therefore is bad on demurrer. There are authorities that sustain the...
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