People v. Clayton

728 P.2d 723 (1986)

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Nature of the Case

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Facts

In November 1979, D and his wife Marvolene formed a partnership called Clayton Realty Company with Thomas and Donna Lee Gray. The Grays assumed a $40,000 debt and contributed an additional $20,000 in return for a 50 percent share of the partnership. On February 13, 1981, D and his wife entered into a partnership agreement with Evan C. Jones and his wife Consuelo R. Jones to form ERA Clayton Realty. Ten days later, on February 23, 1981, the Claytons and Grays dissolved the first partnership. The purpose of both partnerships was to conduct general real estate business. D agreed to pay the Grays $300 a month for ten years. He made five payments to the Grays, totaling $1500, from ERA Clayton Realty's partnership account. The ERA Clayton Realty partnership agreement held that checks shall be drawn on the partnership bank account for partnership purposes only. D was charged with felony theft. After a preliminary hearing, the district court found that D paid a personal debt to his former partners using funds from the ERA Clayton Realty partnership account. The court ruled, however, that a partner cannot be charged with theft of partnership property under section 18-4-401 or the Uniform Partnership Law (UPL), sections 7-60-101, et seq., 3A C.R.S. (1986) because partnership property is not a thing of value of another. The court dismissed the charge against D. P seeks reinstatement of the charge, claiming that an unauthorized taking of partnership property by one of the partners constitutes theft.