Opinion
No. 26417
Decided September 13, 1976.
Defendant was convicted of theft for unlawfully taking food stamps from the Department of Welfare of the City and County of Denver and appealed.
Affirmed
1. CRIMINAL EVIDENCE — Exhibit — Income — Admission — Error — Theft — Food Stamps. In prosecution for theft (unlawfully taking food stamps from Department of Welfare of the City and County of Denver), admission of exhibit which summarized defendant's weekly earnings was error; no foundation was laid for the admission of the exhibit, and trial judge was in error in concluding that summary fell within scope of admissibility of a business record.
2. Theft — Food Stamps — Wage Verification Letter — Admitted — Lack of Error. Admission into evidence of wage verification letter — which was admitted without objection as a defense exhibit in prosecution for theft of food stamps and which contained same information which was included in summary exhibit which was admitted over defendant's objection — was not reversible error.
Appeal from the District Court of the City and County of Denver, Honorable Christian Stoner, Judge.
J. D. MacFarlane, Attorney General, Jean E. Dubofsky, Deputy, John R. Rodman, Assistant, for plaintiff-appellee.
Rollie R. Rogers, State Public Defender, James F. Dumas, Jr., Chief Deputy, Dorian E. Welch, Deputy, Norman R. Mueller, Deputy, for defendant-appellant.
[1] The defendant, David A. Kleiman, was charged and convicted by a jury of theft for unlawfully taking food stamps from the Department of Welfare of the City and County of Denver. 1971 Perm. Supp., C.R.S. 1963. 40-4-401. The only error asserted on appeal relates to the admission of a summary of the weekly earnings of the defendant. Admission of the exhibit which summarized the defendant's income was error. No foundation was laid for the admission of the exhibit, and the trial judge was in error in concluding that the summary fell within the scope of admissibility of a business record. Crim. P. 26.2(a). See also Palmer v. Hoffman, 318 U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645 (1943), which defines the limits of the Federal Business Records as Evidence Act. 28 U.S.C. § 1732. The Federal Business Records as Evidence Act has been reincarnated in our rule. Crim. P. 26.2.
Now section 18-4-401, C.R.S. 1973.
[2] Testimony was presented which established that a wage verification letter from the defendant's employer was used to establish that the defendant obtained more food stamps than he was entitled to during the time period in issue. The wage verification letter was admitted as a defense exhibit without objection, and contains the same information which was included in the summary exhibit which was admitted over the defendant's objection. Therefore, reversible error did not occur. See Roybal v. People, 177 Colo. 144, 493 P.2d 9 (1972); Fink v. Montgomery, 161 Colo. 342, 421 P.2d 735 (1966).
We affirm.
MR. JUSTICE KELLEY, MR. JUSTICE GROVES, and MR. JUSTICE LEE concur.