*1 claim on which could be had recovery against plaintiff error, and the even if it had been re- evidence, properly ceived, legally to establish a insufficient claim, judgment is reversed -as to in error plaintiff bank, the case remanded with instruction to enter judgment of dismissal as to it. Chief Justice Justice Jackson,
Mr. Mr. Clark concur. Mr. Justice Knauss 16,634.
No. People. Eachus v. The (238 885) P. [2d] Rehearing Decided November 1951. denied December *2 B. Mr. Messrs. Elam Moynihan-Hughes-Sherman, plaintiff error. Underhill, Attorney
Mr. W. Mr. H. General, Duke Law- Dunbar, Deputy Attorney General, Mr. rence Norman Hinkley, people. Attorney General, for the Assistant Comstock, H. En Banc. delivered court. Justice Clark opinion
Mr. refer as to whom will herein error, we Plaintiff charging upon convicted information defendant, was an day he the 11th of Jan- and one Mow about butcher, who filed a uary, being A.D. “riot a has having bond as law permanent place provided Ed- did then and .there business, unlawfully sell one D. Miller a wit: portion beef,-to ward carcass of hide One-quarter beef, first intact of the brand same, exposing upon if hide, any, and did then and there purchaser, unlawfully neglect and fail, preserve refuse of the said beef for thirty days, and to exhibit period same contrary demand Gant, of Lawrence * * to the form of the in question The statute is section 7, ’35 hereinafter forth. chapter 28, C.S.A., set
It is not that on or denied date alleged about one- information deliver and Mow did quarter Miller; the hide said animal beef of. was Miller; not exhibited .defendant *3 seller of said quarter beef; of and that he received pay from Miller for the During same. the early course of trial it that Mow had developed no interest beef Miller; sold to that he merely defendant assisting making delivery thereof; and counsel thereupon, repre- senting Mow so to moving, dismissal the charge of as him by was ordered the court. Other to necessary facts be related may better be discussed in connection with the several assignments of considered. error be herein - Defendant twelve of presents separate assignments error, all of which will fall into following one classifications: Violation (1) of constitutional provisions; (2) improper evidence; (3) admission in- relating jury;.and structions of the (4) insufficiency of evidence.
I. Most on the strongly urged of the defendant part is his attack in substance charging upon that statute information based void in is that it deprives is persons of due liberty property without process of law, contrary to of the federal provisions Con state and that stitutions, it likewise compels charged thereunder to be a against witness himself enough, Strangely provisions. violation of constitutional notwithstanding period that time considerable Colo- in the statute has been in existence State this by court. our it has not heretofore been 'construed rado, quite agree position for defendant We with counsel regulation; police that this statute is in the nature of a legislature adopted in behalf of that was it designed industry assist and is Colorado, livestock prevention larceny in the livestock. par- entering detailed as
Before discussion into background and in us, ticular statute now before helpful, indulge may two it one or belief we be general observations. policy it is the well-defined
First, pre many every repeated, reasonable times law, validity sumption where and, that favors the of a statute up grounds, will attacked the courts constitutional clearly unconstitutional. hold it unless shown proof must and he assailant, The burden of clearly beyond reasonable doubt that establish legislative supported by rea enactment cannot be presumption. Decisions sonable or allowable intendment only holding legion, so are but we confine citations to beginning Con few of the Colorado cases, several League Ry. sumers’ & Southern 53 Co., Colorado page Cas. 1914 A wherein at Ann. said: we n presumption every “The is valid is that presumption to be constitutional, and such overcome every pos- only clear demonstration. In of doubt case *4 presumption should made sible and intendment be constitutionality favor of the be act, of the it is to only unquestioned that overthrown when is clear and it * * * it the violates fundamental law. “ ‘The doctrine is elementary [*] [*] [*] no act of general assembly is should unconstitutional it be declared unless
458
clearly
palpably
People
Commissioners, 12
v.
so.’
at
Colo. 89
93.
“
requires
principle
‘A
of construction
fundamental
who seek
its
to overthrow a
those
statute
account
repugnance
provision
to a
show
un-
constitutional
constitutionality
beyond
act
reasonable doubt.’
all
City
Denver
v.
17
204 211.
Knowles, Colo.
at
“
legislature
‘When an act
is attacked as
vio-
lation of the constitution
States,
United
required
leg-
uphold
state,
familiar rule, we are
beyond
unconstitutionality appears
islation unless its
all
Agr.
reasonable doubt.’ Ind.
Ditch
22
Ditch
Co.,
Co. v.
Colo.
528.
at
“ ‘Every
presumed
The
statute
to be constitutional.
ought
courts
not to declare
unconstitutional
one to be
clearly
expressed
unless
will
so. If there is
doubt,
legislature
Munn
Peo-
should be sustained.’
v.
ple,
To add case, we Chicago, Q. B. Railroad Co. v. 63 Colo. District, & School Bedford, 166, 260; Rinn v. (2d) 84 P.
Secondly, apply the same rules of construction pur under where suant consideration was enacted police powers to the inherent of the state. The property every right engage citizen and his in busi subject police power ness which is state, easily pur but defined, as a concise statement of its pose quote Pitney, extent, and 140 Pac. from we State Wash. 918; 1916 A Ann. Cas. 209. “If the law proper police under consideration is a exercise of the power, constitutionality hardly its will be In de denied. termining validity inquiry law, of the must therefore, provisions to whether directed its come within scope police power. early decisions define this power extending regulations promulgated by to those authority legislature or under the of the which had for object promotion public pub- their health, the
459 reviewing public safety. the Without morals, lie or the subject, upon this as evidenced evolution of the law may that, said resort, the decisions of courts it be of last may deci- whatever the earlier be the limits power, recent sions in the more circumscribed it has, the regulations those been all decisions, designed defined to include general promote public to convenience, the the great general prosperity, welfare, all the extends to and public promote regulations designed needs, as well as public safety. public public health, or morals, Chicago, In Drainage People Q.& ex rel. B. Illinois R. Co. v. Sup. 50 [26 200 U.S. Ct. Com’rs., power police 596] Ed. was said: We L. it hold that regulations designed promote the of a state embraces general public prosperity, well as convenience regulations designed promote public health, ” public public safety.’ or the morals, power” extensively case of is discussed in the
“Police People, 424. Bland 65 L.R.A. page In police power, 325: “In that case we said at the exercise legislature large and discretion, has a duty legislation is is it our sustain such unless it clearly beyond question palpably and in violation all foregoing page 331: the constitution.” and at “The * * * of the authorities establish: 2. in the exercise That power legislature may adopt means such reasonable necessary accomplish purposes statute. as is legislature large That to discretion is confided legis- public declaring policy, unless the clearly palpably lation funda- is violation of the property mental all it will be sustained. 4. That law, implied obligation use of held under the owner’s public.” injurious shall not be statute on behalf of defendant contended It unnecessary places bur- undue and unreasonable may any upon persons offense. innocent who dens example way analogy Argument by end to this no comprises but brief, half of defendant’s than more wherein a similar appellate decision been been called to our has declared unconstitutional has *6 other in attention. On the resort hand, the courts of last other than jurisdictions unanimity Colorado have with statutes to the same and in several upheld import as, instances identical with, ours, almost and have answered negatively' defendant’s on constitutional ob- contentions not jections herein raised others well as him, as assigned.
In a involving case a Colo statute similar to our very act, rado except that it “oc to who applies only persons casionally” animals slaughter beef, Supreme Court of South Dakota in in the State v. 1913, case of Devers, 32 S.D. 143 473, N.W. held 364, gist that the offense is the selling beef without the hide. Further, that in relating statements the statute killing animals lim only are for the purpose iting the class of the offense slaughter to who persons cattle for beef, and that the material to deter thing be mined is that sale who beef for person offered the be the person same slaughtered who the animal.
The supreme court of New in con- 1929, Mexico in struing a statute very similar in State ours, case of v. Knight, 217, 34 N.M. 279 held statute 947, that a one kills a requiring who bovine in- preserve animal the hide for thirty days, tact relates a distinct and offense from separate a con- provided statute cerning the larceny livestock, two are wholly unrelated and “are not only law, distinct but in fact.” also It was also held therein that did not violate any constitutional against self- provision incrimination.
Again referring to New Mexico, we find State Walk- v. er, 405, 281 Pac. 481, N.M. the supreme of that held state the statute above referred to in case Knight “is regulation reasonable police deprivation of property without due In process.” case the same also held was that such statute is not against provision violation self-in- of the constitutional prohibiting nor of that unlawful search crimination, seizure. (1914)
In an decision in where earlier New Mexico statutory provision but before the court, different was range which also relates to was held that cattle, .it police power may protection properly applied be range of livestock under and that a statute conditions preventing holding seven under under herd of calves age proper months exercise a misdemeanor, is a police power. 143 Pac. State v. 19 N.M. Brooken, involving approval 479, cited with in 1935 in a case- (2d) same statute. State P. Blevins, v. N.M. (2d) Jungst Baldridge (Idaho), 51 In F. the case of appeal 282 U.S. 379, 51 on which dismissed in *7 Sup. rea- Ct. 75 Ed. the court said: “That L. prevention and detection of sonable means they country particularly in where livestock, theft of commonly police open range, run on the are within the powers of the is clear to admit of discussion.” state, too In that case it was contended action was viola- that the provisions, including constitutional tive numerous provision against taking private property due compensation, equal protection under law all general legislative citizens and to the limitations to power, in answer to which the said: we “But, if correctly analyzed have the act, it contravenes none of these, great principles, range and is well within commonly police, power. exercised The act is not novel exceptional.” or by
While not bound re- decisions above we .are jurisdictions, ferred to from that other we are convinced similarity in view of the therein discussed of the statutes statute, the Colorado with which we are con- now logic reasoning cerned, of those must decisions by unimpressed attempts distinguish- We control. are at principle objective ment between our statute
those of the from cited jurisdictions foregoing which the cases by come. No sufficient or valid reason appears which we should impelled contrary feel a view adopt thereto and wherein we would as a appear minority one. We conclude, therefore, upon that statute the information con- is not to attack on based, subject stitutional grounds.
Considerable defendant reliance is had counsel for of Garcia recent case v. People, 213 P. (2d) 387, which, it decisive of contended, question here concerned with presented. That case was an entirely different different and an entirely principle, and contention complete defendant’s finds a answer two to: New cases above referred Mexico State v. Knight; State Walker, supra.
II. that certain officer It is contended testimony them by witnesses to statements made to pertaining such Mow was of nature to be inadmissable In the place this defendant. first highly prejudicial there is little reference of the offi- very testimony said have made cers to statements been pertaining within ad- them Mow the facts otherwise make mitted. the officers testified Mow did True, how usually certain statements concerning disposed hides, very slightly, this was if dif- any, but he from ferent what defendant himself testified when took the in his own Furthermore, stand behalf. at of such evidence the careful time court was reception later, to state it would have all to be connected up *8 which would itself indicate at time that it was that not Mow, and then at the time of the dismissal complete, court instructed jury fully disregard all state- been ments testified to as made having by Mow, par- are ticularly portions those which now made the basis of the of error. At the assignment close of the people’s cautioned mat- again jury the court these case about ters, jury any and directed the to consider out pertaining testimony made Mow statements light the cir- presence In the of the defendant. jury believe that case, cumstances this we cannot possibly misled been confused or could have concerning testimony Mow state- of the officers suffered ments, we are satisfied that defendant prejudice no on account thereof.
During took of trial course stand upon cross-examination, in his own behalf, and felony. previously was asked if he had been convicted many He admitted he how that had. He then was asked times, to which he then asked answered, He was twice. the nature of the convicted, offenses of was he Objection all of his was answers thereto were evasive. ques made at the time to either court or counsel further tioning concerning the defendant the of nature of previously fenses of which he had been convicted, assigned such question is now as error. has been This previous well settled in Davis decisions our In court. People, 'page 77 Colo. 546, our said, 551: single “Such cross-examination is not limited to question but permitted, espe a reasonable latitude is cially equivocates.” where, here,' the witness In People, citing Dennison v. 65 Colo. 174 Pac. approval People, the case of LeMaster v. Pac. 269, we held that exam of such extent largely ination in cases of this kind within the dis cretion court, of the trial' the absence of showing of abuse of discretion In no error occurs. apparent equivo
case before us it that defendant was pursued cal and that the court and counsel the matter necessary bring no further than was out fact that previously larceny. he had been twice convicted of Pro priety perhaps, indicates, the court itself should participation have refrained from examination, in the notwithstanding only purpose clear it is that his certainty. to the end of clarification and conclude We prejudice that no to defendant account, resulted this *9 discretion abuse of sufficient was no there
and that justify incident this from arising court of part of the reversal judgment.
III. charge for 8th counsel assignment, their By their refusing give the court of part error on assignment, 11th “B”; and by tendered instruction in- jury to the error by giving committed for study same require these structions As together. will considered construction, they be con- here we are with which The particular reads C.S.A., cerned section ’35 7, chapter com- any person, shall unlawful for follows: “It aas sale, except or to sell or offer for pany corporation, having lawby butcher, provided who has filed a bond as or of a beef the carcass permanent place business, first veal or such any carcass, (1) portion intact same, exposing of the shall upon if and it hide, any, purchaser, brand be the such or duty any corporation person, company or selling for such carcass of beef offering any sale veal (2) to for a preserve period the hide of the same thirty days, and for (3) inspection to exhibit the same upon the (Parenthesis fig- demand of any person.” therein ures supplied.)
In order get understanding purport proper and intent of this consider the two section, helpful following sections of at effect the time chapter the filing of 8 which information in this section case, reads: * * * for for to kill any person be unlawful shall “It * * * beef or veal without any his and consumption, use * * * such animal period the hide preserving in- same thirty days presenting not less than any demand of person.” spection person declared that legislature “any 9 the section By ** * preceding two provisions violating *” * * guilty of a misdemeanor. shall be deemed sections (Italics supplied.)
By de “B” for instruction counsel the tendered setting regarded forth one fendant the as information Assuming is offense. the instruction case, such to be' by “(2)” require part erroneous in it would person people prove by to demand some to see animal, for whereas statutes make it unlawful the seller of the carcass to offer the meat for sale exhibiting” presenting “first motion In their hide. for new trial, counsel for defendant contended that comprise items set forth in the “B” tendered instruction charged, elements the offense behalf failure on people prove any to one necessitate of which would acquittal. supplemental an In the motion new trial given attacking 8, in counsel, 7 and instructions numbers say by correctly them the court failed state the creating thereby interpreted law in that the statute is as multiple interpretation offenses, “whereas, correct conformity the statute would create but one offense.” In with the time, contention of defendant’s counsel at that constituting the court construed the one statute as but jury by offense, so 8. instructed instruction No. From brief us, of counsel for defendant, now before taking exception in to the court’s construction of the creating quote as but offense, one we follows: logic “We cannot follow the stat trial court. separate ute creates three offenses, in which the each of necessary sale or offer of sale beef is a Each element. offense consists of different elements. We see cannot We, how the statute can create but offense.” one on the quite undertaking other are hand, at a loss in to visual expected pro ize the extent of consideration to a us posal position that we declare error on defendant’s taken exactly urged this court-when contra during throughout the trial court course of including Especially trial, motion for new trial. we are confounded view of the that we fact have several our court review rule be that times stated the defendant’s embraced within points confined to to be trial. Eachus v. People, 77 Colo. motion new 238 Pac. 546, 550, People, Davis 1009; tantamount would of this Application principle urged upon in the matter now lack of confession merit us. agreement with coun are, nevertheless,
We fol with the two together sel that construed section Instruc offenses. sections, separate creates three lowing forth the tion No. sets substantially given court, statute, instruction. Instruction No. and is a correct decidedly incorrect, inaccuracy but its works benefit advantage he, therefore, defendant, may an instruc be heard to erroneous complain *11 Munsell v. tion which People, decidedly is in his favor. 122 424, 615; 222 it (2d) furthermore, Colo. P. is 8 that No. the quite given evident instruction was the trial court because of the counsel who at of insistence the one that created but represented defendant, offense and all of the therein that various clauses were be considered thereof. instruction By but elements No. they only the that find charged jurors must beef at offered the for sale without that intact exposing the time hide and if the said but thereon, any, purchaser, brand that find that to preserve also must defendant had failed they thirty days and, for a of period the hide of the beef the defendant had failed to exhibit further, of within said of any person period same for inspection an undue burden placed upon This thirty days. clearly and advan great was to the benefit prosecution of Had defendant at the conclusion of defendant. tage attorney moved to the district require case people’s would rely of the three he charges elect been such motion would have conviction, proper No such motion been granted. should have made.
IV. insufficiency assigned evi- is because of Error emphasized assignments particularly These dence. are occurring instruction above of the error in last because discussed, there insufficient evidence and is said that it charge (1) support failed that, the defendant (2) preserve period days, thirty inspection upon failed to person exhibit it demand period within time. respect
The evidence with to these matters is conflicting, particularly thus, under the instructions given, duty jury it became the to determine all whether elements court’s as set forth proven instruction had been to their satisfaction from all beyond jury ap the evidence parently being a reasonable doubt. The thereof, found,
satisfied there so being ample support evidence shown the record to finding, may such not here rule disturbed. This so established well citation of numerous authorities unnecessary; hence we mention two both cases, but People, St. v. recent. Louis 209 P. Colo. (2d) Trujillo People, 538; 222 P. 436, 440, (2d) 775. substantially language
The information is though statute, and even it contains several distinct of- jury necessity fenses, where the must found de- have guilty prejudice fendant can all, he claim no because of conviction of one. jurors
It is for the to determine credi *12 bility they of witnesses, and in this have instance must conflicting taken into consideration the made statements by the defendant to the officers, as well as be conflicts tween statéments attributed to him the and officers testimony appeared his when he as a in witness his own question It credibility behalf. then became a between appeared the defendant and officers who as witnesses. following quotation supra, from State is Blevins, apt expressing so use it we our views: “We do demeanor one accused the manner and
not say However, coupled is convict him. crime sufficient us, in would the evidence the cold record before we in aside the verdict.” setting be justified affirmed. judgment the Accordingly, Mr. Jus- Alter, Mr. Justice Mr. Justice Moore tice Holland dissent.
Mr. Justice Moore dissenting. in majority
I concur in views expressed cannot opinion. based fundamental My prin- dissent com- ciples of constitutional I believe are law which in pletely judgment affirmance of the disregarded by this cause. criminal in makes substance,
The statute
question,
offers
bonded
who sells or
(not
butcher)
any person
or
thereof, of a beef
carcass,
any
or
portion
sale
first
veal,
purchaser
One who
any.
if
exposing
brand,
of the animal and
thereof,
any
carcass,
or
such
or portion
sells
offers
sell
period
same
the hide of the
“preserve
must
for inspection upon
exhibit
days same
thirty
these
demand
If he
do
any
any
fails to
person.”
criminal.
as a
he
himself to
subjects
prosecution
things
objec-
If
the constitutional
against
this- statute
upheld
be held
mentioned,
must
hereinabove
briefly
tions
of the state.
police power
exercise of the
be a proper
police
exercise
legislature
Generally,
limitations,
constitutional
may,
of the state
within
power
reasonably
which are appropriate
statutes
adopt
public
the promotion
protection
needful
How-
safety.
morals,
public
health,
public
police power
exercise of the
any
ever,
legislative
state
national or
by the
right guaranteed
violates
Morgan,
In Re
is invalid.
constitutions
enacted
been
to have
1071. If a statute purporting
real
has no
safety,
morals
health,
public
protect
*13
469
clearly
objects or
an
to these
relation
or substantial
liberties
of the constitutional
invasion
freedoms
property
enjoy
dispose
people
their
or
use,
regula-
governmental
or
control
unreasonable
Denver
&
the courts
declare it void. Platte
tion,
should
C. & M.
“Freedom
376,
Co.
17
An property, owner or cannot be of his process “prop- use The term without due of law. thereof erty,” every guarantee, process as used embraces in due of law property, right, person may kind of which Pennsylvania Coal exclusive have control or dominion. Sup. Mahon, Co. v. 260 43 U.S. Ct. 158. “property” process term as used in the due clause right any legitimate
includes make or dis use, posal, thing may owned. Neither an owner be deprived property of the essential attributes his process just compensa without due law, or without Mayor (2d) Delaware & tion. L. R. Co. v. al., W. et F. People Schimpff ex 257; rel. Norvell, Ill. (2d) In
N.E. case last cited we find lan this guage: according privilege property of a citizen “The use his only liberty
to his own will is but right, subject only property to such restraints as the may require, common welfare and while new burdens welfare public when may property on the placed *14 having to enactments is limited it, power demands this safety, health, comfort, public direct reference and morals (Italics supplied.) welfare.” 16, Ct. Buchanan In 38 Warley, v. 60, Sup. 245 U.S. which thing than the mere find: is more “Property we right It includes it elementary owns. person pro- Constitution use, dispose and it. acquire, of tects property.” attributes sup- these essential (Italics of Co., Products Carotene United States v. also, See plied.) 7 500. Fed. Supp. any of away action which takes
Any legislative unreasonable imposes essential of or property, attributes Peo clause. thereon, restrictions the due process violates 138 N.E. P. ple Chicago Ry. M. & St. 306 Co., v. Ill. v. 155; Bettey Mont. 257 City Sidney, of “The con We from Bettey case: quote following deprived stitutional that no shall be person guaranty of his due of vio may without law be property process lated without taking property for physical public of or may use. or its value private Property destroyed, be may be it and for some useful annihilated; kept is owned and value it can used. Its purpose it has no unless be for some use capability enjoyment adaptability and characteristics and attributes essential are which hence law which conceived; any cannot be property or away any it or its essential destroys value, takes of its (Matter the owner his attributes, deprives property. of of of Jacobs, Rep. 636.) N.Y. Application Am. power, enacted
“Laws in the exercise police pursuance in acting whether municipal corporations be must itself, of of the state or the state the laws reasonable, always subject provisions are are constitutions, they both the federal and state City (McCray subject scrutiny. to judicial always 557; 244.)” (Italics 126 N.E. 6 R.C.L. Chicago, 292 Ill. supplied.) which is this of the citizen,
Under statute the conduct pub- whatever direct reference criminal, made has no safety. understand I am at loss to health, lic morals keeping requirement or of hide, how any improve thirty days, manner what- would people, people, morals of the health ever the majority argued, safety people. and the or the opinion It adopted-on be- measure this indicates, that designed industry, assist “and is half of livestock (cid:127) larceny prevention livestock.” It is pointed quarter dressed beef, how a out, however, ready consumption, can in manner whatever any particular As opin- identified with animal. aptly put by dissenting Holland in Mr. Justice his abiding are ion, hundreds of law citizens honest they property, own, restricted in the larceny, free use of *15 hope may person have committed that some who against such
but whom no evidence crime doing may punished apprehended available, and something inherently wrong. which is not pointed opinion,
While it true, as out the court’s against upheld that some states have similar statutes objections constitutionality, prior to here made to their question, passed upon this time never Colorado has agree and I that from other cannot the decisions cited jurisdictions per- I should be am followed this state. destroy suaded such that decisions tend to weaken and guarantees. the force and effectiveness of constitutional Under the stress and strain of war and other so-called emergencies, appellate national courts in recent strenu- years been ous have inclined to emasculate constitutional provisions guarantees until basic constitutions, of our original both national and state, have much lost of their meaning. brought many This result been -has about ways, and no with doubt the best of However, intentions. government creeping if constitutional is to survive, paralysis upon deep concepts that has set the once rooted by appellate of constitutional law must be met courts awith reaffirmance of and a fundamentals, rededication and health restoring the task of to judges
by appellate con- that end body constitutional to our vigor practice shall in actual and nation our state stitutions invasions against amount line of defense first alarming of the people. and liberties the freedoms concern- cry the hue and notwithstanding that, truth is consti- our without, from freedom threatened loss of ing impo- more and more become have guarantees tutional bul- to stand as justice in courts of tent and powerless funda- of those the invasion strength against wark of and rights privileges and inalienable mental guarantee intended were obviously constitutions individual. should trial court
In opinion judgment my directions cause remanded be reversed the defendant. discharge Holland authorize Alter Mr. Justice Justice
Mr. concur in this dissent. they me to say dissenting. Justice Holland Mr. not of reason do the fair probabilities
Believing my I declare herein, majority opinion concur with the dissenting my- therewith, present disagreement in error defendant. I refer as plaintiff views. will C.S.A., relating ’35 7, chapter Under section filed against an butchers, information 1950, charging March Mow, David Richard one Colorado, county, 1950 in Mesa 11th day January, filed a bond a butcher who had not defendant, being having law, permanent place provided *16 Miller a portion sold to Edward D. unlawfully business, beef, of quarter to wit: one beef, of a carcass of exposing the and same, hide intact of the exhibiting first and the any,-to purchaser, if hide, upon the brand refuse and unlawfully fail, neglect and there did then thirty said beef for a of period the hide of preserve Law- demand of exhibit same and to days, such form the statute in to the of contrary Gant, rence and provided. case made jury 17, 1950, on November had to a
Trial was charged guilty finding as a verdict returned dismissed was Information to Mow as information. in the After People’s lack evidence. for of case, of the at close entered overruling the court trial, new motion for a by imposing a fine judgment on the verdict and sentence ten imprisonment for and of three hundred dollars county jail. in the months prosecuted as- of herein is
The error twelve writ signments strongly urged are, error, of those most substance, in under that the statute which defendant liberty deprives persons convicted is void and that it process property in violation without due of law Constitution of Colorado and of State compels person void in States; United that it against to be a witness himself in a criminal case Constitution; court violation Colorado present testimony permitting the state to erred as codefendant; conversations had with the refusal of give giving of instruction; court to a tendered and the instructions. erroneous Ҥ7. quote
I Per- the section of the statute involved: preserve than bonded butchers sons other to exhibit any person, company or shall unlawful for hide.—It corporation, except butcher, offer sale, to sell or as provided by having perma- who filed a as law has bond place veal or business, the carcass of a beef or nent any portion such carcass, without first exposing upon brand same, intact of duty any, purchaser, be the it shall hide, if company corporation selling any person, or offer- such preserve ing any such carcass of beef or veal to for sale period thirty days, for a the hide of same inspection upon demand exhibit the same person.” creating one trial construed this illegal sale; sale or offer and fur- is, the
offense, that jury that the elements of the offense ther instructed the *17 are: Sale carcass of beef car- 1. charged part Miller; cass to witness Edward D. 2. said sale made without first the hide intact of said beef and the brand exposing upon, hide, any, if 3. to the said failed that the defendant purchaser; pre- serve the hide of the said beef for a period thirty days; the defendant failed to in- 4. exhibit the same for demand upon the within said spection any person mo- period thirty days. ruling The court in tion for a new trial, held that the violation one of these elements would make The court illegal. the sale further stated that defendant de- if had presented fense of statute and for attempting comply reasons his beyond could not the hide for control, keep the thirty-day then the would period, have, upon request, instructed the if failure retain jury that hide for control thirty days was beyond reasons of defendant, he could found guilty. not be
On the face of this statute, mere doing or failing to do the matters prescribed therein constitute the crime. While this section of the statute is to be found under the chapter relating to it was in- butchers, 'Unmistakably tended the legislature to aid in the prevention of theft of cattle. At the time of the commission of the our alleged offense,, statute concerning larceny cattle, which contained many of the in- elements here volved, had been held void, deprived of due process law violation of our state Constitu- tion. Garcia People, (2d) P. n Undoubtedly the attorney district case us before resorted to' this section of the under- regula- statute tion of butchers general instead of the larceny statute. On the face statute numerous possible defenses are not available. no Ownership defense; true explanation in the provided cattle-stealing defense; is no accident defense; is no theft of the hide by another party defense; is no and under many the statute circumstances, virtually prohibits sale, especially resale, of per- rightfully possessed is not and owned. “It property spreads an all- effect, which, law to enact a missible *18 upon everybody chance the of inclusive net for the feet entangled surely its be innocent will while the that, caught.” may Fair- wrong-doers also be some meshes, Creamery 274 U.S. Minnesota, State mont Co. v. of Sup. Ct. 71 Ed. 893. 506, L. suggestion to an instruction of trial court that The the pre- jury have been should the some these defenses of legis- judicial equivalent to if would be sented, followed, legislature exception by cannot lation. “An made the not Commis- Karoly Industrial be read into the v. statute.” Pac. 284. sion, many only one of the
The retention of hide is the proving ownership. beef of a of true owner means The rights, may rightfully kill same and within his'lawful- dispose part property If he does of or a sale. all of his may display and committed a crime hide, the he has may use own convicted. The owner kill a beef his be preserve thirty-day period then and and hide for the any sell the violation of of innocent hide, him- statute;- if for known to however, reason, best prevented from sell- sell, he wanted to he would be self, ing any part violation a of the carcass on hand without property deprived of statute. He is of the use of his buyer or this The the beef, unreasonable means. of having part seen thereon, a hide a brand same, thirty days part after decides sell all or he what bought, cannot so because there is hide- available do no buyer, original display having second to the owner thirty days kept hide for it or sold otherwise dis- posed of it. dangers lurking
These are illustrations of within provisions statute. There is rational the strict no display connection between the failure to hide larceny. crime Peo commission of the Garcia v. the. ple, supra. legislature may doing, That make the regardless an crime failure act do, intent do the funda act, do or to1 omitting the person must be reasonable. mental; however, legislative act cattle- in reference General states Attorney Garcia unconstitutional the case of stealing act held the act that “a could violate People, supra, had under whether there been theft consideration This even himself.” any beef and if he owned beef now statement force to the applies equal before us.
The trial stated that, by here, information only one offense was charged, namely, alleged sale beef. The “the people contend, statute makes it unlawful to sell without hide a duty imposes person preserve the a period thirty days after the sale. It is submitted part latter the statute does not constitute a crime.” separate
I am agreement not in with the trial only one offense is created by the statute or the information. sale of the beef is a necessary in incident or element other committing the created If by offenses statute. the been chargd defendant had with a selling a portion of carcass of beef without the displaying and acquitted hide of such a for charge, prosecution failure to hide keep the for would thirty days not be barred. The in- elements volved in distinctly the statute are different and require different evidence to It is present. manifest legislature considered the elements to be for the distinct reason for providing' penalty a violation of “* * * legislature this violating any of statute, said, provisions of the two shall be preceding sections * * deemed a *.” of misdemeanor guilty §9, 28, supra. c.
Defendant was and the charged, jury instructed, as to of a the sale of a of beef carcass to Miller without part hide and not displaying keeping thirty hide for days and not same of any demand he person. The evidence discloses that was ques- hide for the beef he had tioned about the sold Miller, to a but was about a beef questioned quarter of by connection shown hanging There was no in his shed. being part hanging as a people in the shed beef jury being verdict of to Miller. The beef sold impossible say upon in- general, element which it volved it was based. century, for over a statute has been effect half
This involving during been time case the statute has no Appeals. presented this court or our Court of As People Mooney, 271, said in 87 Colo. v. 567, law-enforcing “These officers circumstances denote that many years ineffective considered the statute as have wholly thereof insufficient to constitute violation * ** given practical a crime. stat- construction ato ‘The by public charged ute officers state, of the public performance therewith, in connection duties ” always entitled of doubt.’ consideration, case support my stat As views herein to the end that the com ute is and in such unreasonable unreasonableness parable chapter 33 and 39 ’35 C.S.A. 160, sections nugatory by in Garcia which were made our decision supra, People, an of the sections we have amendment being chapter ’35 here involved 8 and 9, sections legislature appearing chapter 101, C.S.A. our 1951 page now Session Laws of 1951. This amendment felony here section the section makes to violate it constituting and contains all of the elements involved, separate act the amended offenses; however, and distinct provides inspection the hides release thirty-day inspector prior expiration brand felony period also to have the carcass makes *20 possession complying any part in without thereof provisions now statute. With outlawed, other, assignments points that other of error and inference out strongly urged I a discussion merit, without feel that are required. stated, For the reasons herein thereof is cattle-stealing join the in now this statute should Garcia our decision the case of a result of oblivion as judgment supra. en- People, verdict and thereon The v. tered such statute should be reversed for rea- this son well as otherwise cat- indicated herein. The tle-raising industry my sympathy is not these protection matters and all reasonable means of should be larceny afforded; livestock however, cattle and other protected imperfect can be without the aid of statutes persons attempt innocent involve an to convict Here, thief. the trial court stated that the intent prevent stealing statute involved In this was to of cattle. guise, instance, we under con- have, a defendant felony, victed of a now a with- misdemeanor, what is slightest out the inference of the theft of cattle. judgment trial court should be reversed. joins in this dissent. Justice Moore Mr. 16,753.
No. Jump Western Life American Insurance Company.
(238 P. 196) [2d] DecidedNovember Per Curiam.
Judgment affirmed en opinion. banc without written plaintiff John Mr. T. Dugan, in error.
Mr. Milton C. Garwood, for defendant in error.