Van Straaten v. People

• Citation: 26 Colo. 184, 56 P. 905
• Case Date: March 20, 1899
• Court: Supreme Court of Colorado

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 [26 Colo. 185] court of El Paso county for the larceny of two copper plates, of the value of $700, the property of the [56 P. 906] 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 [26 Colo. 186] 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...