Trask v. People

• Decision Date: 04 December 1905
• Citation: 83 P. 1010,35 Colo. 83
• Parties: TRASK v. PEOPLE.
• Court: Colorado Supreme Court

83 P. 1010

35 Colo. 83

TRASK v. PEOPLE.

Supreme Court of Colorado

December 4, 1905

In Banc. Error to District Court, El Paso County; Robert E Lewis, Judge.

Harlan Trask was convicted of larceny, and brings error. Reversed.

Steele J., dissenting.

Goddard & Warner, McAllister & Gandy, and N.M. Campbell, for plaintiff in error.

N.C. Miller, Atty. Gen., and I. B. Melville, Asst Atty. Gen., for the People.

MAXWELL J.

Plaintiff in error was convicted of larceny as bailee and sentenced to a term of not less than seven or more than eight years in the penitentiary. The information upon which he was tried and convicted contained one count, and was as follows: 'Henry Trowbridge, district attorney within and for the Fourth judicial district of the state of Colorado, in the county of El Paso, in the state aforesaid, in the name and by the authority of the people of the state of Colorado, informs the court that Harlan Trask, on the 5th day of April, A. D. 1903, at the said county of El Paso, being then and there the bailee of (here follows a description of certain household articles, clothes, including a white dress and black hat, a diamond ring, and certain moneys, stating the value thereof), all of said property being then and there the personal property of one Mrs. A. L. Brown and having been theretofore delivered to him, the said Harlan Trask, by her, the said Mrs. A. L. Brown, did then and there fraudulently and feloniously steal, take, and carry away and convert said property to his own use, with intent to steal the same, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the said the people of the state of Colorado.' Eighty-five assignments of error are presented, many of which are based upon exceptions reserved to the rulings of the court in the admission and rejection of evidence. In the printed briefs and at the oral argument six propositions presented by counsel are relied upon to reverse the judgment. This discussion will be limited to this one proposition presented by counsel: (3) Several offenses charged in one count.' With deference to eminent counsel representing plaintiff in error, we are contrained to state that a more accurate statement of their position, as shown by their argument upon this proposition, would be that it appeared from the evidence at the trial that defendant was being tried for more than one separate and distinct crime, and upon this statement we will consider the record.

The information charged that plaintiff in error on April 5, 1903, being bailee of all the articles mentioned in the information, by one act, did convert them, etc. For the purposes of this discussion the articles described in the information will be divided into four classes: (1) Household articles and clothes; (2) a white dress and black hat; (3) a diamond ring; (4) certain moneys. The evidence of the prosecution was to the following general effect: That the household goods and clothes were delivered April 4, 1903, for safe-keeping; that the white dress and black hat were delivered about April 15th under a separate bailment, not for safe-keeping, but for delivery to one Wilbur; that the diamond ring was delivered about April 14th for the purpose of pawning and raising money for the use of the prosecuting witness; that certain moneys were delivered about April 20th for the purpose of safe-keeping, and for the payment of the expenses of a trip of the prosecuting witness to Kansas City--all of the foregoing deliveries having been made to plaintiff in error by the prosecuting witness To the introduction of all testimony relating to the white dress and black hat, the diamond ring, and the certain moneys, counsel for plaintiff in error objected, assigning as grounds of objection that the same was incompetent, and that it appeared that such testimony related to other, separate, and distinct transactions. At the close of the state's case counsel for plaintiff in error moved to quash the information, and for an instruction to the jury to return a verdict in favor of the defendant, upon the grounds that it appeared from the evidence that several distinct transactions had been embodied in the one count of the information and that the information was bad for duplicity, and that it appeared from the evidence that the defendant was now on trial for more than one violation of law, involving separate and distinct transactions. In this motion particular attention was called to the evidence relating to the white dress and black hat and the diamond ring. At the close of all the testimony counsel for plaintiff in error requested an instruction to the jury to return a verdict of not guilty, also instructions to entirely disregard al testimony as to the certain moneys, the diamond ring, and the white dress and black hat, all of which requests were refused. Throughout the trial counsel for plaintiff in error, even to the point of appearing contumacious, sought to protect his client, along the lines indicated, by objections to the testimony, by the motion to quash, the request for a verdict, and by the requests for instructions, and at all times was met by adverse rulings of the court, to which rulings exception were duly preserved.

It is beyond question that the evidence objected to disclosed that there were several separate and distinct bailments for different purposes, and that as many separate and distinct conversions with intent to steal had been committed, and, as conversion with intent to steal is the gravamen of the crime of larceny as bailee, is is clear that the plaintiff in error, upon an information charging one offense, under the rulings of the court, was forced to stand trial for several separate and distinct offenses. That the trial court became convinced of this fact is manifest from an instruction given to the jury, wherein it was charged that in no event could the defendant be found guilty for failure to turn over to one Bernard certain household furniture, for failure to turn over to Wilbur the effects turned over by Mrs. Brown to plaintiff in error for that purpose, meaning thereby the white dress and black hat, or for failure to turn over the certain moneys. In White v. People, 8 Colo.App. 289, 45 P. 539, the information consisted of three counts. The first charged defendant with larceny March 1, 1893, of two head of neat cattle, the property of Emanuel C. Tolle.

The second charged larceny by the defendant May 20, 1893, of eight head of neat cattle, the property of Emanuel C. Tolle. The third charged larceny by the defendant July 3, 1893, of eight head of neat cattle, the property of Emanuel C. Tolle. It appears from a statement in the opinion that the defendant was tried upon the second and third counts only, found guilty upon both counts, and the court adjudged a separate punishment upon each count. Judge Thomson said (at page 293 of 8 Colo. App., at page 540 of 45 Pac.): 'The authorities are practically unanimous that it is improper to include distinct offenses in the same indictment, and that either in the case of duplicity, or of misjoinder of counts if objection is made in apt time, the court will in the one case quash the indictment, and in the other...