Van Straaten v. People

• Decision Date: 20 March 1899
• Citation: 26 Colo. 184,56 P. 905
• Parties: VAN STRAATEN et al. v. PEOPLE.
• Court: Colorado Supreme Court

56 P. 905

26 Colo. 184

VAN STRAATEN et al. v. PEOPLE.

Supreme Court of Colorado

March 20, 1899

Error to district court, El Paso county.

E. Van Straaten, Joe Brentlinger, and Charles Fuller were convicted of larceny, and they bring error. Reversed.

I. N Stevens, J. Reid Crowell, and F. W. Lienau, for plaintiffs in error.

Byron L. Carr, Atty. Gen., and Calvin E. Reed, Asst. Atty. Gen for the People.

GODDARD J.

The plaintiffs in error were tried and convicted in the district court of El Paso county for the larceny of two copper plates, of the value of $700, the property of the Gold Crater Mining Company, and sentenced to the penitentiary, at hard labor, for the term of three years. To reverse this error, they bring the case here on error.

The testimony introduced on the part of the people is to the effect that the copper plates in question were during the night of October 31, 1896, taken from what is known as the 'Summit Mill,' and were found on the forenoon of November 1st in the ore room of the Gavin smelter, in Cripple Creek, covered with from a foot to 18 inches of ore; that plaintiffs in error were employés of the Gavin smelter, and at the time were engaged in sampling ore in the room where the plates were found. There is no testimony directly connecting them with the actual taking of the plates from the Summit mill. The only testimony as to how the plates came there is that of John D. Baumann, who was vice president and general manager of the Gavin smelter, who testified: That he was buying copper of any description that came along. That he was at the Branch Saturday night, paying off the men who had been working at the smelter. That two parties came to him and wanted to know if he would buy a lot of copper. He said: 'Yes.' They asked what he was paying for it, and he said: 'Five cents a pound.' They said: 'All right. When can we bring it?' He said: 'Any time.' That a little later he saw Brentlinger, who acted as foreman when he was not around, and said to Brentlinger: 'Should some fellows bring some old copper, weight it up, and let me know how much it is, and I will give them an order for the money.' Mr. Brentlinger testified: That he first saw the plates on the morning of November 1st, between 6:30 and 7 o'clock. That they were in front of the smelter, on the platform. There were two men with them, who spoke to him and said: 'Here is that copper.' That he opened the door and told them to throw it in, and they threw it in the back part of the smelter, by the furnance. This testimony is undisputed.

The only circumstance disclosed by the testimony that could tend in any way to criminate the plaintiffs in error was the alleged possession by them of the stolen property. While, in the absence of direct proof of the taking, the possession of stolen property is a circumstance from which the jury may infer that the accused committed the theft, yet, in order to give to this circumstance an evidentiary force sufficient to sustain a conviction, the possession must be personal and exclusive, recent and unexplained, and must involve a distinct and conscious assertion of property by the defendant. Whart. Cr. Ev. § 758 and cases cited. The rule as to the character of the possession is stated by Mr. Greenleaf as follows: 'But, to raise the presumption of guilt from the possession of the fruits of the instruments of crime by the prisoner, it is necessary that they be found in his exclusive possession. A constructive possession, like constructive notice or knowledge, though sufficient to create a civil liability, is not sufficient to hold the party responsible to a criminal charge. He can only be required to account for the possession of things which he actually and knowingly possessed; as, for example, where they are found upon his person, or in his private apartment, or in a place of which he kept the key. If they are found upon premises owned or occupied as well by others as himself, or in a place to which others have equal facility and right of access, there seems no good reason why he, rather than they, should be charged upon this evidence alone.' 3 Greenl. Ev. § 33. It is manifest that the evidence in this case fails to establish the essential element of personal or exclusive possession by the plaintiffs in error of the property in question. The room was open and accessible to others; and, as the undisputed testimony shows, the plates were placed there by others than the plaintiffs in error, who, it is also shown, were there only as employés engaged in the service of the company, and in no sense, or proper signification of the word, were in the possession or control of the stolen property. In these circumstances, there was no ground on...