Opinion
No. 16,634.
Decided November 19, 1951. Rehearing denied December 10, 1951.
Plaintiff in error was convicted of unlawfully selling a portion of a carcass of beef without first exhibiting the hide intact and exposing the brand to the purchaser, etc.
Affirmed.
1. STATUTES — Livestock — Construction. Section 7, chapter 28, '35 C.S.A., is in the nature of a police regulation "adopted by the legislature in behalf of the livestock industry of Colorado, and is designed to assist in the prevention of larceny of livestock."
2. Constitutional Law — Presumption. "Every reasonable presumption favors the validity of a statute and, that where attacked on constitutional grounds, the courts will uphold it unless it is clearly shown to be unconstitutional."
3. CONSTITUTIONAL LAW — Burden of Proof. Where the constitutionality of a statute is assailed, "The burden of proof is upon the assailant, and he must establish clearly and beyond reasonable doubt that the legislative enactment cannot be supported by any reasonable intendment or allowable presumption." In the instant case it is held, "that the statute upon which the information is based, is not subject to attack on constitutional grounds."
4. PROPERTY RIGHTS — Police Power. "The property of every citizen and his right to engage in business is subject to the police power of the state."
5. CRIMINAL LAW — Witness — Court Discretion. The latitude allowed in the cross-examination of defendant concerning prior convictions for felonies is largely within the discretion of the trial court. Where witness equivocates, examination is not limited to a single question, but a reasonable latitude is permitted.
6. APPEAL AND ERROR — Points to be Reviewed. Review by the Supreme Court "is to be confined to points embraced within defendant's motion for new trial."
7. CRIMINAL LAW — Instructions — Appeal and Error. The defendant in a criminal case "may not be heard to complain of an erroneous instruction which is decidedly in favor."
8. Charges — Trial. In a criminal case involving three charges, it is held that, "Had defendant at the conclusion of the people's case moved to require the district attorney to elect upon which of the three charges he would rely for conviction, such a motion would have been proper and should have been granted."
9. APPEAL AND ERROR — Jury Finding — Evidence. If there is ample evidence shown by the record in a criminal case to support the jury's findings, they will not be disturbed on review.
Error to the District Court of Mesa County, Hon. Dan H. Hughes, Judge.
Messrs. MOYNIHAN-HUGHES-SHERMAN, Mr. ELAM B. UNDERHILL, for plaintiff in error.
Mr. DUKE W. DUNBAR, Attorney General, Mr. H. LAWRENCE HINKLEY, Deputy Attorney General, Mr. NORMAN H. COMSTOCK, Assistant Attorney General, for the people.
PLAINTIFF in error, to whom we will herein refer as defendant, was convicted upon an information charging that he and one Mow on or about the 11th day of January, A.D. 1950, "not being a butcher, who has filed a bond as provided by law having a permanent place of business, did then and there unlawfully sell to one Edward D. Miller a portion of a carcass of beef, to wit: One-quarter of beef, without first exhibiting the hide intact of the same, and exposing the brand upon the hide, if any, to the purchaser, and did then and there unlawfully fail, neglect and refuse to preserve the hide of the said beef for a period of thirty days, and to exhibit the same upon the demand of Lawrence Gant, contrary to the form of the statute * * *." The statute in question is section 7, chapter 28, '35 C.S.A., hereinafter set forth.
It is not denied that on or about the date alleged in the information defendant and Mow did deliver one-quarter of beef to Miller; that the hide of said animal was not exhibited to Miller; that defendant was the seller of said quarter of beef; and that he received pay from Miller for the same. During the early course of the trial it developed that Mow had no interest in the beef sold to Miller; that he was merely assisting defendant in making delivery thereof; and thereupon, counsel representing Mow so moving, dismissal of the charge as to him was ordered by the court. Other facts necessary to be related may better be discussed in connection with the several assignments of error to be herein considered.
Defendant presents twelve separate assignments of error, all of which will fall into one of the following classifications: (1) Violation of constitutional provisions; (2) improper admission of evidence; (3) relating to instructions of the jury; and (4) insufficiency of evidence.
I.
Most strongly urged on the part of the defendant is his attack charging in substance that the statute upon which the information is based is void in that it deprives persons of liberty and property without due process of law, contrary to provisions of the federal and state Constitutions, and that it likewise compels a defendant charged thereunder to be a witness against himself in violation of constitutional provisions. Strangely enough, and notwithstanding the considerable period of time that this statute has been in existence in the State of Colorado, it has not heretofore been constructed by our court. We quite agree with the position of counsel for defendant that this statute is in the nature of a police regulation; that it was adopted by the legislature in behalf of the livestock industry of Colorado, and is designed to assist in the prevention of larceny of livestock.
Before entering into detailed discussion as to the particular statute now before us, as background and in the belief that it may be helpful, we indulge one or two general observations.
[2, 3] First, that it is the well-defined policy of the law, many times repeated, that every reasonable presumption favors the validity of a statute and, that where attacked on constitutional grounds, the courts will uphold it unless it is clearly shown to be unconstitutional. The burden of proof is upon the assailant, and he must establish clearly and beyond reasonable doubt that the legislative enactment cannot be supported by any reasonable intendment or allowable presumption. Decisions so holding are legion, but we confine citations to only a few of the several Colorado cases, beginning with Consumers' League v. Colorado Southern Ry. Co., 53 Colo. 54, 125 Pac. 577, Ann. Cas. 1914 A 1158, wherein at page 58 we said:
"The presumption is that every statute is valid and constitutional, and such presumption is to be overcome only by clear demonstration. In case of doubt every possible presumption and intendment should be made in favor of the constitutionality of the act, and it is to be overthrown only when it is clear and unquestioned that it violates the fundamental law. * * *
* * *
"`The doctrine is elementary that no act of the general assembly should be declared unconstitutional unless it is clearly and palpably so.' People v. Commissioners, 12 Colo. 89 at 93.
"`A fundamental principle of construction requires those who seek to overthrow a statute on account of its repugnance to a constitutional provision to show the unconstitutionality of the act beyond all reasonable doubt.' Denver City v. Knowles, 17 Colo. 204 at 211.
"`When an act of the legislature is attacked as in violation of the constitution of the United States, or of the state, by familiar rule, we are required to uphold the legislation unless its unconstitutionality appears beyond all reasonable doubt.' Ind. Ditch Co. v. Agr. Ditch Co., 22 Colo. 513 at 528.
"`Every statute is presumed to be constitutional. The courts ought not to declare one to be unconstitutional unless it is clearly so. If there is doubt, the expressed will of the legislature should be sustained.' Munn v. People, 94 U.S. 113."
To the Consumers' League case, supra, we add only Chicago, B. Q. Railroad Co. v. School District, 63 Colo. 159, 166, 165 Pac. 260; Rinn v. Bedford, 102 Colo. 475, 477, 84 P.2d 827.
Secondly, the same rules of construction apply where the statute under consideration was enacted pursuant to the inherent police powers of the state. The property of every citizen and his right to engage in business is subject to the police power of the state, which is not easily defined, but as a concise statement of its purpose and extent, we quote from State v. Pitney, 79 Wash. 608, 140 Pac. 918; Ann. Cas. 1916 A 209. "If the law under consideration is a proper exercise of the police power, its constitutionality will hardly be denied. In determining the validity of the law, therefore, inquiry must be directed to whether its provisions come within the scope of the police power. The early decisions define this power as extending to those regulations promulgated by or under the authority of the legislature which had for their object the promotion of the public health, the public morals, or the public safety. Without reviewing the evolution of the law upon this subject, as evidenced by the decisions of courts of last resort, it may be said that, whatever may be the limits by which the earlier decisions circumscribed the power, it has, in the more recent decisions, been defined to include all those regulations designed to promote the public convenience, the general welfare, the general prosperity, and extends to all great public needs, as well as regulations designed to promote the public health, the public morals, or the public safety. In Chicago, B. Q. R. Co. v. People of Illinois ex rel. Drainage Com'rs., 200 U.S. 561, 592 [ 26 Sup. Ct. 341, 50 L.Ed. 596] it was said: `We hold that the police power of a state embraces regulations designed to promote the public convenience or the general prosperity, as well as regulations designed to promote the public health, the public morals, or the public safety.'"
"Police power" is extensively discussed in the case of Bland v. People, 32 Colo. 319, 76 Pac. 359, 65 L.R.A. 424. In that case we said at page 325: "In the exercise of the police power, the legislature has a large discretion, and it is our duty to sustain such legislation unless it is clearly and palpably and beyond all question in violation of the constitution," and at page 331: "The foregoing authorities establish: * * * 2. That in the exercise of the power the legislature may adopt such reasonable means as is necessary to accomplish the purposes of the statute. 3. That to the legislature is confided a large discretion in declaring the public policy, and that unless the legislation is clearly and palpably in violation of the fundamental law, it will be sustained. 4. That all property is held under the implied obligation that the owner's use of it shall not be injurious to the public."
It is contended on behalf of defendant that the statute is unreasonable and places undue and unnecessary burdens upon persons who may be innocent of any offense. Argument by way of analogy and example to this end comprises more than half of defendant's brief, but no decision of any appellate court wherein a similar statute has been declared unconstitutional has been called to our attention. On the other hand, the courts of last resort in jurisdictions other than Colorado have with unanimity upheld statutes to the same import as, and in several instances almost identical with, ours, and have answered negatively defendant's contentions on constitutional objections herein raised by him, as well as others not assigned.
In a case involving a statute very similar to our Colorado act, except that it applies only to persons who "occasionally" slaughter animals for beef, the Supreme Court of South Dakota in 1913, in the case of State v. Devers, 32 S.D. 473, 143 N.W. 364, held that the gist of the offense is the selling of the beef without exhibiting the hide. Further, that statements in the statute relating to the killing of animals are only for the purpose of limiting the class of the offense to persons who slaughter cattle for beef, and that the material thing to be determined is that the person who offered the beef for sale be the same person who slaughtered the animal.
The supreme court of New Mexico in 1929, in construing a statute very similar to ours, in the case of State v. Knight, 34 N.M. 217, 279 Pac. 947, held that a statute requiring one who kills a bovine animal to preserve intact the hide for thirty days, relates to a distinct and separate offense from that provided for by a statute concerning the larceny of livestock, and that the two are wholly unrelated and "are not only distinct in law, but also in fact." It was also held therein that the statute did not violate any constitutional provision against self-incrimination.
Again referring to New Mexico, we find State v. Walker, 34 N.M. 405, 281 Pac. 481, in which supreme court of that state held that statute above referred to in the Knight case "is a reasonable police regulation and not a deprivation of property without due process." In the same case it was also held that such statute is not in violation of the constitutional provision against self-incrimination, nor of that prohibiting unlawful search and seizure.
In an earlier decision in New Mexico (1914) where a different statutory provision was before the court, but which also relates to range cattle, it was held that the police power may be properly applied to the protection of livestock under range conditions and that a statute preventing the holding under herd of calves under seven months of age to be a misdemeanor, is a proper exercise of police power. State v. Brooken, 19 N.M. 404, 143 Pac. 479. cited with approval in 1935 in a case involving the same statute. State v. Blevins, 39 N.M. 532, 51 P.2d 599.
In the case of Jungst v. Baldridge (Idaho), 51 F.2d 379, appeal on which was dismissed in 1930, 282 U.S. 906. 51 Sup. Ct. 20, 75 L. Ed. 797, the court said: "That reasonable means for the prevention and detection of the theft of livestock, particularly in a country where they commonly run on the open range, are within the police powers of the state, is too clear to admit of discussion." In that case it was contended that the action was violative of numerous constitutional provisions, including the provision against taking of private property without due compensation, the equal protection under the law of all citizens and to the general limitations to legislative power, in answer to which the court said: "But, if we have correctly analyzed the act, it contravenes none of these great principles, and is well within the range of commonly exercised police power. The act is not novel or exceptional."
While we are not bound by the decisions above referred to from other jurisdictions, we are convinced that in view of the similarity of the statutes therein discussed with the Colorado statute, with which we are now concerned, the logic and reasoning of those decisions must control. We are unimpressed by attempts at distinguishment in principle or objective between our statute and those of the jurisdictions from which the foregoing cited cases come. No sufficient or valid reason appears by which we should feel impelled to adopt a view contrary thereto and wherein we would appear as a minority of one. We conclude, therefore, that the statute upon which the information is based, is not subject to attack on constitutional grounds.
Considerable reliance is had by counsel for defendant upon the recent case of Garcia v. People, 121 Colo. 130, 213 P.2d 387, which it is contended, is decisive of the question here presented. That case was concerned with an entirely different statute and an entirely different principle, and defendant's contention finds a complete answer in the two New Mexico cases above referred to: State v. Knight; State v. Walker, supra.
II.
It is contended that the testimony of certain officer witnesses pertaining to statements made to them by Mow was of such nature as to be inadmissible and highly prejudicial to this defendant. In the first place there is very little reference in the testimony of the officers pertaining to statements said to have been made to them by Mow that it not within the facts otherwise admitted. True, the officers testified that Mow did make certain statements concerning how defendant usually disposed of hides, but this was very slightly, if any, different from what defendant himself testified when he took the stand in his own behalf. Furthermore, at the time of reception of such evidence the court was careful to state that it would all have to be connected up later, which would itself indicate that it was not at that time complete, and then at the time of the dismissal of Mow, the court instructed the jury fully to disregard all statements testified to as having been made by Mow, and particularly those portions which are now made the basis of the assignment of error. At the close of the people's case the court again cautioned the jury about these matters, and directed the jury not to consider any of the testimony pertaining to statements made by Mow out of the presence of the defendant. In the light of the circumstances of this case, we cannot believe that the jury could possibly have been confused or misled by any of the testimony of the officers concerning the Mow statements, and we are satisfied that the defendant suffered no prejudice on account thereof.
During the course of trial defendant took the stand in his own behalf, and upon cross-examination, was asked if he had previously been convicted of felony. He admitted that he had. He then was asked how many times, to which he answered, twice. He then was asked the nature of the offenses of which he was convicted, and all of his answers thereto were evasive. Objection was made at the time to either court or counsel further questioning the defendant concerning the nature of the offenses of which he had been previously convicted, and such is now assigned as error. This question has been well settled in previous decisions of our court. In Davis v. People, 77 Colo. 546, 238 Pac. 25, our court said, page 551: "Such cross-examination is not limited to the single question but a reasonable latitude is permitted, especially where, as here, the witness equivocated." In Dennison v. People, 65 Colo. 15, 174 Pac. 595, citing with approval the case of LeMaster v. People, 54 Colo. 416, 131 Pac. 269, we held that the extent of such examination in cases of this kind is largely within the discretion of the trial court, and that in the absence of a showing of abuse of discretion no error occurs. In the case before us it is apparent that defendant was equivocal and that the court and counsel pursued the matter no further than was necessary to bring out the fact that he had been twice previously convicted of larceny. Propriety indicates, perhaps, that the court itself should have refrained from participation in the examination, notwithstanding that it is clear that his only purpose was to the end of clarification and certainty. We conclude that no prejudice to defendant resulted on this account, and that there was no sufficient abuse of discretion on the part of the court arising from this incident to justify reversal of the judgment.
III.
By their 8th assignment, counsel for defendant charge error on the part of the court in refusing to give their tendered instruction "B"; and by the 11th assignment, that the court committed error by giving to the jury instructions 7 and 8. As these require the same study for construction, they will be considered together.
The particular statute with which we are here concerned is section 7, chapter 28, '35 C.S.A., which reads as follows: "It shall be unlawful for any person, company or corporation, to sell or offer for sale, except as a butcher, who has filed a bond as provided by law having a permanent place of business, the carcass of a beef or veal or any portion of such carcass. (1) without first exhibiting the hide intact of the same, and exposing the brand upon the hide, if any, to the purchaser, and it shall be the duty of any such person, company or corporation selling or offering for sale any such carcass of beef or veal (2) to preserve the hide of the same for a period of thirty days, and (3) to exhibit the same for inspection upon the demand of any person." (Parenthesis and figures therein supplied.)
In order to get a proper understanding of the purport and intent of this section, it is helpful to consider the two following sections of chapter 28, in effect at the time of the filing of information in this case, section 8 which reads:
"It shall be unlawful for any person * * * to kill for his * * * use and consumption, any beef or veal without preserving the hide of such animal * * * for a period of not less than thirty days and presenting the same for inspection upon the demand of any person."
By section 9 the legislature declared that "any person * * * violating any of the provisions of the two preceding section shall be deemed guilty of a misdemeanor. * * *" (Italics supplied.)
By the tendered instruction "B" counsel for defendant regarded the information as setting forth one offense. Assuming such to be the case, the instruction is erroneous in that by part "(2)" it would require the people to prove a demand by some person to see the hide of the animal, whereas the statutes make it unlawful for the seller of the carcass to offer the meat for sale without "first exhibiting" the hide. In presenting their motion for new trial, counsel for defendant contended that the items set forth in the tendered instruction "B" comprise the elements of the offense charged, failure on behalf of the people to prove any one of which would necessitate an acquittal. In the supplemental motion for new trial counsel, in attacking given instructions numbers 7 and 8, say that by them the court failed to correctly state the law in that thereby the statute is interpreted as creating multiple offenses, "Whereas, a correct interpretation of the statute would create but one offense." In conformity with the contention of defendant's counsel at that time, the court construed the statute as constituting but one offense, and so instructed the jury by instruction No. 8. From the brief of counsel for defendant, now before us, in taking exception to the court's construction of the statute as creating but one offense, we quote as follows: "We cannot follow the logic of the trial court. The statute creates three separate offenses, in each of which the sale or offer of sale of beef is a necessary element. Each offense consists of different elements. We cannot see how the statute can create but one offense." We, on the other hand, are quite at a loss in undertaking to visualize the extent of consideration expected of us to a proposal that we declare error on defendant's position taken in this court when it is exactly contra to that urged upon the trial court during and throughout the course of the trial, including motion for new trial. Especially are we confounded in view of the fact that we have several times stated the rule to be that review by our court is to be confined to points embraced within defendant's motion for new trial. Eachus v. People, 77 Colo. 445, 446, 236 Pac. 1009; Davis v. People, 77 Colo. 546, 550, 238 Pac. 25. Application of this principle would be tantamount to confession of lack of merit in the matter now urged upon us.
[7, 8] We are, nevertheless, in agreement with counsel that section 7, construed together with the two following sections, creates three separate offenses. Instruction No. 7, given by the court, substantially sets forth the statute, and is a correct instruction. Instruction No. 8 is incorrect, but its inaccuracy works decidedly to the benefit and advantage of defendant, and he, therefore, may not be heard to complain of an erroneous instruction which is decidedly in his favor. Munsell v. People, 122 Colo. 420, 424, 222 P.2d 615; furthermore, it is quite evident that instruction No. 8 was given by the court because of the insistence of counsel who at the trial represented defendant, that the statute created but one offense and that all of the various clauses therein were to be considered but elements thereof. By instruction No. 8 the court charged the jurors that they must not only find that the defendant offered the beef for sale without at the time exhibiting the hide intact and exposing the brand thereon, if any, to the said purchaser, but that they also must find that defendant had failed to preserve the hide of the beef for a period of thirty days and, further, that the defendant had failed to exhibit the same for inspection of any person within said period of thirty days. This clearly placed an undue burden upon the prosecution and was to the great benefit and advantage of defendant. Had defendant at the conclusion of the people's case moved to require the district attorney to elect upon which of the three charges he would rely for conviction, such a motion would have been proper and should have been granted. No such motion was made.
IV.
Error is assigned because of insufficiency of the evidence. These assignments are particularly emphasized because of the error occurring in instruction 8, last above discussed, and it is said that there is insufficient evidence in support of the charge that, (1) the defendant failed to preserve the hide for a period of thirty days, and (2) failed to exhibit it to inspection upon demand of any person within that period of time.
The evidence with respect to these matters is conflicting, and thus, particularly under the instructions as given, it became the duty of the jury to determine whether all of the elements as set forth in the court's instruction had been proven to their satisfaction from all the evidence beyond a reasonable doubt. The jury apparently being satisfied thereof, so found, and there being ample evidence shown by the record to support such finding, it may not here be disturbed. This rule is so well established that citation of numerous authorities is unnecessary; hence we mention but two cases, both recent. St. Louis v. People, 120 Colo. 345, 352, 209 P.2d 538; Trujillo v. People, 122 Colo. 436, 440, 222 P.2d 775.
The information is substantially in the languages of the statute, and even though it contains several distinct offenses, where the jury of necessity must have found defendant guilty of all, he can claim no prejudice because of conviction of one.
[10, 11] It is for the jurors to determine the credibility of witnesses, and in this instance they must have taken into consideration the conflicting statements made by the defendant to the officers, as well as conflicts between statements attributed to him by the officers and his testimony when he appeared as a witness in his own behalf. It then became a question of credibility between the defendant and officers who appeared as witnesses. The following quotation from State v. Blevins, supra, is so apt that we use it as expressing our views: "We do not say that the manner and demeanor of one accused of crime is sufficient to convict him. However, coupled with the evidence in the cold record before us, we would not be justified in setting aside the verdict."
Accordingly, the judgment is affirmed.
MR. JUSTICE ALTER, MR. JUSTICE MOORE and MR. JUSTICE HOLLAND dissent.