Opinion
No. 21119
Decided October 25, 1965.
Defendants were convicted of the crimes of grand larceny and conspiracy to commit grand larceny and bring error.
Affirmed.
1. LARCENY — Sufficiency of Evidence — Value of Property — Grand Larceny — Conspiracy. Record discloses that there was sufficient evidence to justify verdicts of guilt in prosecution for grand larceny and conspiracy to commit grand larceny in view of fact that evidence established value of property stolen was $99.50.
2. CRIMINAL LAW — Appeal and Error — Claim of Error — Burden. Burden is upon party claiming error to establish from the whole record that judgment cannot be upheld under applicable law.
Error to the District Court of Boulder County, Hon. William E. Buck, Judge.
Darrell Harrison, Douglas G. McKinnon, for plaintiff in error.
Duke W. Dunbar, Attorney General, Frank E. Hickey, Deputy, John E. Bush, Assistant, George H. Sibley, Special Assistant, for defendant in error.
The plaintiffs in error, to whom we will refer as the defendants, were convicted of the crimes of grand larceny and conspiracy to commit grand larceny. The judgment of the trial court as to each of said defendants was that he be confined in the state penitentiary for not less than two nor more than five years.
The only point relied upon for reversal of the judgment is that there was insufficient evidence offered upon the trial to warrant the finding of the jury that the value of the property stolen was $99.50, and that there was insufficient evidence to justify the verdicts of guilt upon the crime of grand larceny for the reason that no evidence establishes the value of the property stolen as being in excess of $50. An examination of the record on this point discloses sufficient evidence to justify the verdict of the jury and the judgment of the court entered thereon.
We think it sufficient to say that the instant case is well within the coverage of the language of this court found in Lee v. People, 137 Colo. 465, 326 P.2d 660, from which we quote the following:
" . . . The burden is upon the party claiming error was committed to establish from the whole record that a judgment cannot be upheld under the applicable law. However, it affirmatively appears from the testimony of the one witness whose evidence is brought before us, that there was competent evidence to sustain the jury's finding on the question of value. Mr. Kettering testifies that the gun which was taken had a fair market value of $60 on the date of the alleged theft, and that the retail price asked by Sears Roebuck and Company was $69. Thus it appears upon the showing made by defendant that there was ample competent evidence to support the verdict of the jury on the question of value."
The evidence of value which was admitted in the instant case is of the same nature as that involved in the case above cited.
The judgment is affirmed.
MR. JUSTICE MCWILLIAMS and MR. JUSTICE SCHAUER concur.