Opinion
No. 19,665.
Decided July 17, 1961. Rehearing denied August 7, 1961.
Defendants were convicted of burglary and conspiracy to commit burglary.
Affirmed.
1. CRIMINAL LAW — Burglary — Evidence. In a prosecution for burglary, evidence that defendants were apprehended in a stolen truck, usually kept in burglarized warehouse, was admissible as an incriminating circumstances having a logical and probative relationship to the charge of burglary.
2. Circumstantial Evidence — Burglary. Where circumstantial evidence is relied upon in a criminal case, all of the circumstances must be considered together.
3. Circumstantial Evidence — Burglary — Proof — Sufficiency. In a prosecution for burglary based upon circumstantial evidence, proof of incriminating circumstances, including defendants' unlawful possession of truck owned by delivery service, possession by one defendant of gum balls similar to those found on floor or warehouse, and of an adding machine tape similar to that used on missing adding machine, was sufficient to sustain charge of burglary of warehouse.
4. Appeal and Error — Evidence — Exhibits — Admissibility — Objection. Where no objection was made in the trial court to the admission of certain exhibits, assignment of error based thereon will not be considered.
Error to the District Court of the City and County of Denver Hon. Henry E. Santo, Judge.
Messrs. ZEROBNICK LITVAK Mr. LEO T. ZUCKERMAN, for plaintiffs in error.
Mr. DUKE W. DUNBAR, Attorney General, Mr. FRANK E. HICKEY, Deputy, Mr. J.F. BRAUER, Assistant for defendant in error.
PENA and Huerta were jointly charged in a four count information with (1) burglary of the warehouse building of Gower Delivery Service, Inc., a corporation; (2) conspiracy to commit this burglary; (3) larceny of a motor vehicle, namely a Chevrolet truck, belonging to Gower Delivery Service, Inc.; and (4) conspiracy to commit this larceny of a motor vehicle. Defendant pled not guilty to all counts of the information, and demanded trial to a jury. Upon trial, at the conclusion of the People's evidence, defendants moved to dismiss on the grounds that the evidence was insufficient to permit submission of the case to the jury. This motion was denied as to the first two counts of the information, namely burglary and conspiracy to commit the same; whereupon, for some unexplained reason, the district attorney, voluntarily elected to withdraw counts three and four, charging larceny of a motor vehicle and conspiracy to commit the same. Defendants offered no evidence in their own behalf, and the jury found both defendants guilty of burglary and conspiracy. Motion for a new trial filed in behalf of defendants was denied and each was thereafter sentenced to a term of not less than four nor more than six years in the state penitentiary. By writ of error defendants now seek reversal of their respective judgments of conviction.
The main assignment of error is the alleged insufficiency of the evidence to support the charge of burglary and conspiracy to commit burglary, and it is specifically urged that the trial court committed error in failing to grant defendants' motion to dismiss interposed at the conclusion of the People's evidence. This motion should have been granted, say defendants, and a fortiori, the ensuing judgments of conviction cannot now be permitted to stand and should therefore be set aside.
We now hold that this contention of defendants is without merit and that the evidence is legally sufficient to sustain the verdicts of guilty returned by the jury. However, to demonstrate such sufficiency we deem it necessary to outline in some detail the evidence adduced by the People.
At the outset it is conceded that all of the evidence tending to tie these defendants into the burglary of the warehouse of Gower Delivery Service, Inc., is circumstantial in nature. However, circumstantial evidence is not always inferior in quality nor is it necessarily relegated to a "second rate" status. In Martinez v. People, 63 Colo. 347, 166 Pac. 241, we said: "* * * the evidence is, as mentioned above, circumstantial only. This fact is, of course, not sufficient to justify a reversal of the judgments as circumstantial evidence may be, and frequently is, most convincing and satisfactory. * * *" Also, in Ruff v. People, 78 Colo. 475, 242 Pac. 633, it is said that in any criminal case material, relevant and competent evidence sufficient to convince the jury is necessary to sustain a conviction,"nothing more, nothing less", and that "circumstantial evidence is as competent and potent in such a case as any other". The test is still whether the facts and circumstances are of such quantity and quality as to legally justify a jury in determining guilt beyond a reasonable doubt. If such be the case, then this Court should not, indeed cannot, set aside the solemn findings of the trier of the facts. See also Beery v. People, 104 Colo. 70, 89 P.2d 534; Gonzales v. People, 128 Colo. 522, 264 P.2d 508; Falcon v. People, 143 Colo. 173, 352 P.2d 310.
Proceeding then to a consideration of the evidence, it was established that Gower Delivery Service, Inc., a corporation, is engaged in the general delivery business in the Denver area and has its office at 2811 Walnut Street, Denver. Located at this address is one large building, described as of the "warehouse" type, in which "we store the trucks and company merchandise of various types". Five trucks comprise the fleet used by the company in its operation, and included in this number is a 1953, 3/4 ton, Chevrolet truck. The company's weekly business operation ends every Saturday around noon and the drivers, after completing their deliveries for Saturday morning, customarily return their trucks to the warehouse where they are kept over the weekend. On Saturday, October 17, 1959, Clarence Gower, who is an officer of Gower Delivery Service, Inc., stated that he left the business premises at 2811 Walnut Street at about 10:30 A.M. He testified that he secured the premises but that as of that time only one of the five company owned trucks was in the warehouse. Other trucks, including the 1953 Chevrolet truck, were still out on their deliveries. However, as was noted supra, the obvious inference to be gained from Clarence Gower's testimony is that it was the practice to keep these delivery trucks in the warehouse over the weekend. It was further established that although Gower locked the premises when he departed at 10:30 o'clock in the morning that one of his employees, Knippel, also had a key for the warehouse and that he could admit the trucks to the warehouse as each came in from its delivery trip.
Digressing momentarily, defendants attempt to make much of the fact that Knippel was not endorsed nor called as a witness by the People and that there was accordingly no direct evidence of the eye witness variety placing the 1953 Chevrolet truck in the warehouse as of Saturday noon, October 17, 1959. It is argued that because of this omission the entire case of the People collapses. This is oversimplification and results from a failure to take into consideration all the circumstances of the case.
Continuing then with a review of the evidence introduced by the People, at about 1:45 A.M. on Monday, October 19, 1959, officers Oman and Pratt noticed a truck being driven in an erratic fashion on the Valley Highway and accordingly gave chase. Though the officers sounded their siren and turned on their red light, the truck did not stop and at the first opportunity turned off Valley Highway, but thereafter was quickly brought to a stop by a dead end street. Officer Oman testified that he saw a person emerge from the right-hand side of the truck and he pursued. Without losing sight of such person, officer Oman quickly apprehended him. He was identified as Huerta. Officer Pratt in like fashion gave pursuit to the driver of the truck, who emerged from the left-hand side of the truck, and he without delay apprehended the driver, who turned out to be Pena. Both Huerta and Pena offered resistance, but such was overcome by the officers who effected the arrest. In this connection both Pena and Huerta were carrying knives and the testimony was that Huerta pulled his knife on the officer in resisting arrest. Huerta had in his possession, inter alia, six gum balls with the trade name "FORD" imprinted on each and a tape of the type customarily used in an adding machine. The truck from whence these two defendants fled was the 1953 Chevrolet truck belonging to Gower Delivery Service, Inc., bearing appropriate lettering to that effect on its sides. When questioned by the police the defendants denied everything, stating that neither knew the other and that they were only sleeping in the alley when aroused and for no good reason arrested.
Upon finding the 1953 Chevrolet truck with the firm name "Gower Delivery Service" prominently displayed thereon, the officers called headquarters and as a result of their report Officer Gebhart, accompanied by Clarence Gower, immediately went to 2811 Walnut Street for the purpose of checking the premises. Their check quickly revealed that the building had been burglarized. Investigation revealed that entry had been gained by breaking a 12 x 14" panel of glass with a piece of concrete, which in turn permitted an overhead sliding door to be opened. This sliding door led directly to the area in the warehouse where the company's trucks were housed. Clarence Gower testified that of all the trucks owned by Gower Delivery Service, Inc., only one was "missing", namely the 1953 Chevrolet truck in which the defendants were apprehended.
Further investigation revealed that in another part of the building a gum ball machine had been smashed and numerous gum balls were scattered about on the floor. These gum balls bore the trade name "FORD" imprinted on each ball. Clarence Gower also testified that an adding machine and a typewriter were missing, and identified the tape taken from typewriter were missing, and identified the tape taken from Huerta as "similar" to the tape used in his missing adding machine. On this state of the record the People rested their case and the defendants elected to present no evidence in their behalf.
As stated above, the defendant's chief assignment of error stems from the fact that Knippel did not testify at the trial and as a result there was no direct evidence to establish that the 1953 Chevrolet truck was actually returned to the warehouse on Saturday, October 17, 1959. Such being the case, it is argued that all of the evidence pertaining to the 1953 Chevrolet truck and the circumstances surrounding the apprehension of the defendants while driving said truck have been stricken and in such a posture the entire case would fall. We hold that such evidence was admissible as an incriminating circumstance having a logical and probative relationship to the charge of burglary and conspiracy to commit the same. The essential elements of the crime of burglary may be established by circumstantial evidence as well as direct. The testimony of the witness Gower when considered in the light of and in conjunction with all the circumstances of the case justified the legitimate and reasonable inference that the 1953 Chevrolet truck belonging to Gower Delivery Service, Inc., was housed in the company's warehouse on the weekend of October 17, 1959, and that sometime during this weekend it was feloniously taken therefrom by these defendants who forcibly entered the warehouse with the intent to commit larceny. In short, the evidence outlined above a sufficient to sustain the verdicts of guilty.
In a circumstantial evidence case, all of the facts and circumstances must be considered together, as a whole. As we said in Militello v. People, 95 Colo. 519, 37 P.2d 527: "The attacks upon much of this evidence, including the contention that it should have been stricken on defendant's motion, are based on the theory that isolated statements do not prove definite facts. This is seldom possible and never essential. A case of circumstantial evidence can rarely be so constructed. Its very nature implies the weaving of a fabric of known facts, which, often infinitesimal or immaterial, or even prejudicial when considered alone, become important only as they are tied to others, and when so tied lead to inevitable conclusions as to facts in issue". (Emphasis supplied.) When all of the incriminating circumstances of the instant case are "tied together" there is ample evidence to support the verdict of the jury.
Defendants contend that Lombardi v. People, 124 Colo. 284, 236 P.2d 113, governs the instant case and requires a reversal thereof. We think the Lombardi case is clearly distinguishable from the instant situation. In the Lombardi case the only incriminating circumstance was the possession by the defendant of bottles of liquor "similar" to those taken in the burglary of a liquor store. In the instant case there are numerous incriminating circumstances, including the defendants' unlawful possession of a truck owned by the Gower Delivery Service, Inc., and Huerta's possession of 6 gum balls "similar" to gum balls found on the floor in the Gower warehouse, together with this possession of a tape "similar" to the kind of tape used in the missing adding machine. No more need be said to demonstrate that the circumstantial evidence present in the instant case is much more potent and compelling than in the Lombardi case.
Defendants' remaining assignment relates to the admission in evidence of certain exhibits, namely the knives and monies taken from the person of Huerta; and the gum balls taken from the floor of the Gower warehouse. No objection was made in the trial court when these exhibits were offered. Such being the state of the record, this assignment should not now be considered, Will v. People, 130 Colo. 590, 278 P.2d 178. However, we perceive no error in the admission of the aforementioned exhibits. In a case based on circumstantial evidence, wide latitude is necessarily allowed in the introduction of evidence. Helser v. People, 100 Colo. 371, 68 P.2d 543.
The judgment is affirmed.
MR. CHIEF JUSTICE HALL, MR. JUSTICE DAY and MR. JUSTICE FRANTZ dissent.