Opinion
No. 26450
Decided March 15, 1976.
Defendant was convicted of theft and appealed.
Affirmed
1. JURY — Appraise — Credibility — Witnesses — Weigh — Evidence. The jury has the duty and responsibility for appraising the credibility of the witnesses and weighing the evidence.
2. CRIMINAL PROCEDURE — Acquittal — Motion for Judgment — Court — Determination — Proof. In determining whether a motion for a judgment of acquittal should be granted, the court must determine whether the defendant's guilt of the crime charged has been established by proof beyond a reasonable doubt.
3. CRIMINAL EVIDENCE — Substantial Evidence Test. The substantial evidence test provides that relevant evidence, both direct and circumstantial may be sufficient to sustain a conviction.
4. Whole — Favorable to Prosecution — Conclusion — Guilt — Beyond Reasonable Doubt. Evidence, when viewed as a whole and in the light most favorable to the prosecution, must be substantial and sufficient to support the conclusion by a reasonable mind that the defendant is guilty of the crime charged beyond a reasonable doubt.
5. Circumstantial — Sustain — Conviction. Circumstantial evidence alone may be sufficient to sustain a conviction.
6. THEFT — Calf — Shooting — Slaughtering — Carrying Away — Intent — Guilt. Where the prosecution's case established that defendant committed the crime of theft by shooting, slaughtering, and carrying away a 400-pound calf owned by complainants, held, this, as such, was sufficient to support a finding that defendant harbored the requisite intent and was guilty of the crime charged.
Appeal from the District Court of Ouray County, Honorable George V. Kempf, Judge.
John P. Moore, Attorney General, John E. Bush, Deputy, James W. Wilson, Assistant, for plaintiff-appellee.
Rollie R. Rogers, State Public Defender, James F. Dumas, Jr., Chief Deputy, Lee Belstock, Deputy, for defendant-appellant.
The defendant, Ronald C. Zaring, was convicted of theft. C.R.S. 1963, 40-4-401. On appeal, he asserts that the trial court erred in not granting his motion for a judgment of acquittal and that the evidence was insufficient to support a finding of guilt. We do not find reversible error and, therefore, affirm
Now section 18-4-401, C.R.S. 1973.
The prosecution's evidence established a prima facie case of theft. The issue which the jury was required to determine was basically whether the defendant harbored the requisite intent.
Defendant was arrested by the deputy sheriff on the Owl Creek Pass Road shortly after a ranch hand reported to the deputy that he had heard a car horn and three gunshots from the direction of the pass. The defendant and his wife were in the defendant's truck. The sheriff found a recently killed, half-gutted black calf with a white head chained to the tailgate of the defendant's El Camino truck. The calf, which weighed nearly 400 pounds, evidenced retained body heat and "coagulating blood," and when the rib cage was folded over, steam came out. The defendant admitted that he had shot the calf and had partially gutted and dressed it. He said that he had tied the calf to the back of his truck so that he could return it to the owner.
[1] The defendant claimed he saw the calf and thought that it had been struck by a car or attacked by a coyote, and that he shot it to put it out of its misery. He said that he was trying to drag the calf to the nearest ranch house to find the owner at the time of his arrest. The jury has the duty and responsibility for appraising the credibility of the witnesses and weighing the evidence. Dodge v. People, 168 Colo. 531, 452 P.2d 759 (1969); see generally, Wilson v. People, 143 Colo. 544, 354 P.2d 588 (1960). The jury resolved the factual issue, and the jury's verdict is buttressed by strong, interlocking, circumstantial evidence of guilt.
At the time of his arrest, both a shotgun and a pistol were taken from the defendant's truck, and both had been recently fired. A .22 caliber cartridge case and some empty shotgun shells were found on the ground near the truck. The prosecution presented evidence establishing the ownership of the calf and the fact that no consent or authorization was given for the slaughter or sale of the calf. The defendant admitted that he was opening a restaurant in five days and had facilities to handle meat.
[2-6] The prosecution's case established that the defendant committed the crime of theft by shooting, slaughtering, and carrying away a 400-pound calf owned by Dean F. Johnson and Ann M. Johnson. In determining whether a motion for a judgment of acquittal should be granted, the court must determine whether the defendant's guilt of the crime charged has been established by proof beyond a reasonable doubt. People v. Bennett, 183 Colo. 125, 515 P.2d 466 (1973); see also Corbett v. People, 153 Colo. 457, 387 P.2d 409 (1963). The substantial evidence test which we laid down in People v. Bennett, supra, provides that relevant evidence, both direct and circumstantial, may be sufficient to sustain a conviction. Such evidence, when viewed as a whole and in the light most favorable to the prosecution, must be substantial and sufficient to support the conclusion by a reasonable mind that the defendant is guilty of the crime charged beyond a reasonable doubt. On this basis, we have held that circumstantial evidence alone may be sufficient to sustain a conviction. People v. Sanchez, 184 Colo. 25, 518 P.2d 818 (1974); see also Corbett v. People, supra; Militello v. People, 95 Colo. 519, 37 P.2d 527 (1934).
Accordingly, we affirm.