98 P.2d 997 | Colo. | 1940
McPHEE, plaintiff in error, was charged with and convicted of larceny of an automobile. He is here seeking reversal of the judgment.
The errors to which we limit our consideration may be comprehended in one proposition, to wit, the admission in evidence, over defendant's objections and exceptions, of testimony concerning conversations between a coconspirator and a police officer, and which did not take place in the presence of defendant.
[1-3] The evidence of the people discloses that McPhee conversed with two alleged conspirators, named Schoepflin and Martin, relative to the disposition of stolen automobiles. As contended by the people, there is sufficient evidence to indicate that Schoepflin and Martin were coconspirators with McPhee in the contemplated larceny. Before the commission of the substantive crime Chief of Police Boyer, of Englewood, Colorado, sent for Schoepflin and Martin, and at the *415
subsequent meeting they disclosed to him in detail McPhee's conversations with them. On the trial Schoepflin and Boyer testified to these conversations. Following this disclosure by Schoepflin and Martin, Boyer entered into an arrangement with them to apprehend McPhee in the act of delivering stolen cars. At the time the automobile here in question was delivered, the garage in which it was located was surrounded by police officers, but no one saw McPhee, and his conviction rests very largely upon the testimony of Schoepflin and Martin. Chief Boyer and Schoepflin were permitted to testify to the conversations occurring between them, when defendant was not present, as to the manner in which McPhee wanted to dispose of stolen cars. This evidence clearly was hearsay. Only such statements as were made by McPhee, Schoepflin or Martin during the progress of the conspiracy and in furtherance of its objects were admissible. 11 Am. Jur., p. 573, § 41; Miller v. People,
[4] The evidence given by Boyer undoubtedly dignified Schoepflin's testimony to such an extent that it was prejudicial to McPhee. Especially is this true when we consider that the people's evidence, other than this, cannot be considered as establishing a strong case of guilt. There is no direct evidence that McPhee ever was in possession of the stolen car, nor was it found in the garage allegedly rented by McPhee to be used by him in connection with his alleged criminal operations. Defendant denied all connection with the larceny. The trial court, when overruling the motion for a new trial, stated: "There is no question but what some of the evidence adduced by the People, under the law must be regarded with a considerable amount of suspicion." This remark, from the context, seems to refer to the Schoepflin and Martin testimony.
Under these circumstances, the admission of the hearsay testimony, particularly that of Boyer, constituted prejudicial and reversible error.
The judgment of affirmance heretofore entered by this court in accordance with the provisions of section 439, Code of Civil Procedure, is vacated. The judgment of the district court is reversed and the case remanded, with directions to grant a new trial.
MR. JUSTICE YOUNG, MR. JUSTICE BAKKE and MR. JUSTICE BURKE dissent. *417