Tollifson v. People

• Decision Date: 14 November 1910
• Citation: 112 P. 794,49 Colo. 219
• Parties: TOLLIFSON et al. v. PEOPLE.
• Court: Colorado Supreme Court

112 P. 794

49 Colo. 219

TOLLIFSON et al. v. PEOPLE.

Supreme Court of Colorado

November 14, 1910

Rehearing Denied Jan. 3, 1911.

Error to District Court, Teller County; W. S. Morris, Judge.

T. F Tollifson and another were convicted of crime, and they bring error. Affirmed.

E. G. Vanatta, Orr & Cunningham, and F. B. Lambert for plaintiffs in error.

John T Barnett, Atty. Gen. (George H. Thorne, of counsel), for the People.

HILL J.

The plaintiffs in error were convicted of burglary and larceny; from a sentence accordingly, they have brought the case to this court for review on error.

The first point urged is that it was error to allow a conviction upon the uncorroborated evidence of a confessed accomplice. The witness Wiley, a boy 17 years of age, participated in the commission of the crime, turned state's evidence, and it is contended that his evidence has been in no degree corroborated.

The witness Morton testified that the defendant Tollifson made admissions to him that this ore was stolen by himself, the other defendant, and Wiley, as testified to by Wiley. He further stated that he saw the ore that was brought to the assay office, as related by the witness Wiley; that the defendant Tollifson informed him that it was the ore stolen, and that he (Tollifson), the defendant Mattox, and the witness Wiley were there and participated in the treating of the high grade ore, as stated by Wiley. This witness further stated that the defendant Mattox admitted that he took the ore up to the assay office, where, when it was settled for, $5 that he owed them was taken out for such indebtedness. Also this witness stated that he was engaged in high grading for some time with the defendant Tollifson, and that they had a quarrel and dissolved their partnership. Another witness testified to seeing Wiley and another man go to the assay office at the time stated by Wiley. Other witnesses testified to the description of the property, where the ore was taken from, and the condition of the place after the robbery, and to other facts which go to corroborate the testimony. Corroborative evidence may be circumstantial. 12 Cyc. 456. A confession or admission of the accused is admissible to corroborate an accomplice. 12 Cyc. 458. It is unnecessary in this case to pass upon the question whether a conviction should stand on the uncorroborated evidence of an accomplice or to review former decisions of this court upon that question, for the reason that the testimony of the witness Wiley is sufficiently corroborated by other competent evidence. We find no error in this respect.

Second. It is claimed that there is a variance between the information and the proof, in this: that there is no evidence to sustain the charge that the building alleged to have been burglarized belonged to the Vindicator Consolidated Gold Mining Company. We cannot agree with this contention, and think that the testimony, when taken as a whole, is sufficient to establish this fact.

The third point urged is a similar contention pertaining to the ownership of the property; but, when considered as a whole, we think the evidence sufficient. The witness Whitney, when he was asked, 'Q. Whose ore was that?' answered 'Vindicator Consolidated Gold Mining Company.' While it is true his testimony shows that there were leases on a royalty, he also stated that the company owned the ore until it was settled for; that it was being shipped in the company's name; and that the agreement between the company and the lessee was to the effect that the ore produced should remain the property of the company until settled for. All the testimony on this subject tended to show that the property being mined was that of the Vindicator Consolidated Gold Mining Company, that the buildings were upon its land, and that the ore taken was the property of the company.

The fourth assignment pertains to an alleged variance between the information and the proof in regard to the owner of the property. It is claimed that there is no legal evidence to show that it was ever a duly organized corporation, or a corporation in fact and acting as such. The witness Whitney testified that he was acquainted with the property of the Vindicator Consolidated Gold Mining Company, and that the ore stolen belonged to that company. The following question was asked him: 'Q. What is the Vindicator Consolidated Gold Mining Company?' His answer was: 'A corporation.' There were no objections to this testimony. The witness Trevarrow stated that he was the superintendent of the Vindicator Consolidated Gold Mining Company; that it was operating its properties under leases, etc.; that he looked after the company's interest; that the checks were sent to the Vindicator Consolidated Gold Mining Company at Denver, where royalty is deducted, and the remainder sent to the mine and turned over to the lessee; that the ore was shipped as the property of the company; that the company's agents settle for the ore with the lessees. There was other testimony along the same line showing the method and manner of the company in the transaction of its business; all of which tended to show that it was generally recognized as a corporation. While it is necessary to show the corporate capacity of the party (if a corporation) from which goods are alleged to have been stolen, the weight of authority is to the effect that it is only necessary for the prosecution to prove that the company was de facto organized and acting as a corporation. In the absence of objections this may be proved by one who, of his own knowledge, is acquainted with the fact, or it may be proved by reputation. Miller v. People, 13 Colo. 166, 21 P. 1025; Perry et al. v. People, 38 Colo. 23, 87 P. 796; Reed v. State, 15 Ohio 217; People v. Barric, 49 Cal. 342. We are of opinion that the evidence was sufficient to establish de facto the corporate existence of the company.

Contention is made that the evidence is not sufficient to show that the building broken into was a storehouse, as alleged in the information; the proof shows that some of the witnesses called it the 'shafthouse.' The witness Wiley stated he knew the storehouse was broken into on the 17th of March by Mattox, Tollifson, and himself. He also stated, 'On this particular night the arrangement was to go to the shafthouse and get this ore.' He stated further, 'The door of the storehouse was open'; also, 'No talk before we went over to the shafthouse to break it in.' Again, he said: 'The ore was brought to the Vindicator shafthouse door.' Upon redirect examination, he stated, 'Mattox broke open door of the storehouse; saw storehouse by daylight afterward; door next morning was torn; whole panel out.' The witness Morton testified in the alleged confessions of the defendant Tollifson that, in substance, Tollifson stated to him that they went up about 2:30 in the morning, and waited until the shift went off and pried the outside door of the shafthouse open. The testimony of the witness Whitney is to the effect that the ore was stored in the storeroom, and that the door going from the shafthouse into the storeroom was ordinary cheap pine panel door. The evidence of the witness McMullin as to where the ore was taken from is to the effect that it was in the room used for the purpose of storing machinery, supplies, and high-grade ore that had been sorted. From this, counsel say: 'To say the least, there is a great confusion in the plaintiff's testimony as to what was really broken into, and the preponderance of the evidence seems to be that it was a shafthouse, instead of a storehouse.' For which reasons they urge that the fact that the storehouse was broken into could not be considered as being proven beyond a reasonable doubt. At common law, burglary was defined to be 'a breaking and entering of a mansion house of another in the night with the intent to commit some felony within the same, whether such felonious intent be executed or not.' Russell on Crimes, 785. It will thus be seen that common-law burglary and the statutory burglary of this state have but few elements in common, and consequently English cases and others, in some states, give us but little light upon the question under examination. Under our statute many acts constitute burglary, which, but a few years ago, were a different offense or no offense whatever. The information is in the exact language of the statute, and the fact that some witness may have used a different expression and stated the building was a storeroom, in our opinion, is not material. To a certain extent the words 'storeroom' and 'storehouse' are synonymous. Webster's Dictionary. And it must have been so understood from the manner in which the witnesses used the words, interchangeably, referring to the same building.

The evidence as to what kind of a building was broken into was before the jury. The action was tried, where the property is situate, in Teller county, by a jury, presumably residents of that county, and familiar with the general phrases and language used in connection with such buildings and property. The fact that some witnesses have stated the ore was stored in a storeroom, instead of a storehouse, or in the storeroom of the shafthouse, instead of the storeroom of the storehouse, and others referred to the door as the one from the storeroom, others into the shafthouse, in our opinion, is immaterial. The evidence, as a whole, shows that the buildings were similar to those upon many other mining properties, and establishes the fact that the building, or that portion of the building which was broken into, was used for the purpose of storing machinery, supplies, and high-grade ore after it had been sorted out thus making of it a storehouse. Webster defines a 'storehouse' as a...