Opinion
No. 24762
Decided July 17, 1972. Rehearing denied August 8, 1972.
Defendant was convicted of grand theft of a large number of shirts and appealed.
Affirmed
1. CRIMINAL EVIDENCE — Circumstantial — Consistent — Guilt — Inconsistent — — Innocence. In a circumstantial evidence case, the evidence must be consistent with guilt and inconsistent with any reasonable hypothesis of innocence.
2. INSTRUCTIONS, CRIMINAL — Circumstantial — Rule — Consistent — Guilt — Inconsistent — Innocence — Prior Cases — Reversible Error — Negative — Conviction — Grand Theft — Affirmed. If in a ruling on sufficiency or insufficiency of evidence in circumstantial evidence cases, judges must follow rule that evidence must be consistent with guilt and inconsistent with innocence, then it follows that better practice is to so instruct the jury; however, since failure to follow better practice has not constituted reversible error in cases tried prior to announcement of instant opinion, and since reviewing court follows earlier cases which so hold, conviction of defendant for grand theft in instant case is affirmed.
3. CRIMINAL LAW — Police Officer — Testify — Objection — Prosecutor — Defendant Able to Testify — Oblique Attention — Silence — Non-Prejudicial. Where, in response to question of defense counsel, police officer testified that defendant was married and had one child, and where prosecutor objected, stating that defendant was presented and could testify to such fact, held, this was error, but not reversible error; though calling oblique attention to possible silence of defendant, prosecutor made no direct reference to defendant's silence, and, as such, his statement was sufficiently veiled to be non-prejudicial.
4. THEFT — Grand — No Contemporaneous Objection — Not Serious — No Recognition on Review. In prosecution for grand theft, assignments of error to which no contemporaneous objection was made in trial court were not serious enough for reviewing court to recognize.
Appeal to the District Court of Larimer County, Honorable Dale E. Shannon, Judge.
Duke W. Dunbar, Attorney General, John P. Moore, Deputy, David A. Sorenson, Assistant, for plaintiff-appellee.
Richard O. Pittam, Gerash Kaiser, Walter L. Gerash, H.D. Reed, for defendant-appellant.
The defendant was convicted of grand theft of a large number of shirts from a store in Fort Collins. No one saw him take the shirts, but the evidence was such that the jury could find that a short time after the taking he was in possession of them. The following instruction on circumstantial evidence was given:
"What is meant by circumstantial evidence in criminal cases is the proof of such facts or circumstances connected with or surrounding the commission of the crime charged, as tends to show the guilt or innocence of the party charged; and, if these facts and circumstances are sufficient to satisfy the jury of the guilt of the defendant beyond reasonable doubt, then such evidence is sufficient to authorize the jury in returning a verdict of guilty."
The jury was not advised that the circumstantial evidence must be consistent with the guilt of the defendant and inconsistent with any reasonable hypothesis of innocence.
I.
The Attorney General argues that the instruction is sufficient since it requires that the facts and circumstances be sufficient to satisfy the jury of guilt beyond a reasonable doubt. He cites Smaldone v. People, 103 Colo. 498, 88 P.2d 103 (1939) and Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed.2d 150 (1954). He also might have cited Montez v. People, 110 Colo. 208, 132 P.2d 970 (1943).
[1] In contrast, we have stated recently and repeatedly that in a circumstantial evidence case the evidence must be consistent with guilt and inconsistent with any reasonable hypothesis of innocence. Some examples are to be found in Scott v. People, 179 Colo. 126, 498 P.2d 940; Nunn v. People, 177 Colo. 87, 493 P.2d 6 (1972); and Moore v. People, 174 Colo. 286, 483 P.2d 1340 (1971). In these, and in a dozen other opinions of the court which we have read and in which the same statement is made, the court was not passing upon the sufficiency of an instruction, but rather upon sufficiency of the evidence. In Scott and Moore this latter advisement was not contained in the instructions, but in neither case were we called upon to pass upon the jury instructions. In Nunn the instructions were not made a part of the record and we do not know their contents.
[2] If in ruling upon the sufficiency or insufficiency of evidence in circumstantial evidence cases judges must follow the rule that the evidence must be consistent with guilt and inconsistent with innocence, then it follows that the better practice is to so advise the jury. We hold, however, that failure to follow the better practice has not constituted reversible error in cases tried prior to the announcement of this opinion. We follow Holland, Montez and Smaldone, and affirm the conviction here under consideration.
For some time a committee appointed by this court has been preparing proposed Uniform Criminal Instructions to be a corollary to the present Colorado Jury Instructions-Civil. The committee is submitting the following instruction and notes on direct and circumstantial evidence:
"There are two types of evidence from which a jury may properly find the truth as to the facts of a case. One is direct evidence — such as the testimony of an eyewitness. The other is indirect or circumstantial evidence, that is, the proof of facts or circumstances evidence, that is, the proof of facts or circumstances from which the existence or non-existence of other facts may reasonably be inferred.
"[Where a conviction is sought on circumstantial evidence alone, as in this case, the prosecution must not only show beyond a reasonable doubt that the alleged facts and circumstances are true, but the facts and circumstance must be such as are incompatible, upon any reasonable hypothesis, with the innocence of the defendant, and incapable of explanation upon any reasonable hypothesis other than that of the guilt of the defendant.]
Notes on Use
"Paragraph one should be given in those ordinary cases where both direct and circumstantial evidence have been introduced. Paragraph two is given only when the prosecution's case is based entirely upon circumstantial evidence. When paragraph two is given, it is given in addition to paragraph one . . . ."
Prospectively, we approve the suggested instruction and the quoted note on its use.
II.
The defendant did not testify, and defendant's counsel indicated in advance that the defendant would not take the stand. The only witness called by the defendant as a detective sergeant of the Fort Collins Police Department. While he was on the stand the following took place:
[Counsel for defendant]
"Q [W]as he [the defendant] married or unmarried?
"A He is married. I met his wife.
"Q And what about children?
"A He has one.
[Deputy district attorney]:
"Your Honor, again I would object. Mr. Calise is present. He could testify to this. I think it would be hearsay.
[The court]:
"The objection appears to be good.
[Counsel for defendant]:
"Your Honor, the defendant is here. But then I think he can state whether or not —
[The court]:
"It is not the best evidence."
[3] This was error, but not reversible error. The objection was not good and the deputy district attorney, aided by the court, called oblique attention to the possible silence of the defendant. If the prosecutor had made direct reference to the defendant's silence, as in Montoya v. People, 169 Colo. 428, 457 P.2d 397 (1969), it would have been reversible error. Here the situation is comparable to that in Johnson v. People, 172 Colo. 406, 473 P.2d 974 (1970). The statement of the deputy district attorney was sufficiently veiled to be non-prejudicial.
III.
[4] The defendant has presented a number of other assignments of error. Either they are without merit or no contemporaneous objection was made concerning them. Those in the latter category are not serious enough for us to recognize in the absence of timely objection.
The judgment is affirmed.
MR. JUSTICE HODGES not participating.
MR. JUSTICE ERICKSON dissenting.