Cite as Deherrera v. People, 160 Colo. 96 (1966)

         Anthony Benjamin DeHerrera, Plaintiff in Error,

                               v.

    The People of the State of Colorado, Defendant in Error.

                           No. 21429.

            Supreme Court of Colorado, In Department.

                          May 9, 1966.

     SUTTON, Chief Justice.

     Anthony Benjamin DeHerrera was charged by information with a
violation of C.R.S. '53, 40-11-11, as amended April 27, 1963, as
having unlawfully and feloniously carried upon his person a
concealed deadly weapon, to wit: a gun, the defendant having been
convicted previously of aggravated robbery within the immediate
preceding ten years.  Trial was to the court, a jury trial having
been expressly waived.

     Following a plea of not guilty and the presentation of
considerable evidence, DeHerrera was found guilty and sentenced to
a term of not less than three nor more than ten years in the state
penitentiary.  Defendant was represented by appointed counsel in
the trial court and is represented by different appointed counsel
on this writ of error.

     The sole ground urged for reversal of the judgment is that,
"As a matter of law, the evidence fails to support a finding of
guilty as applied to this defendant."

     Admittedly, there was a conflict in the evidence.  For
example, Detective Keith Rummerfield testified that on the evening
of the arrest in 1963 he entered a Larimer Street tavern in Denver,
accompanied by another officer; that almost immediately he saw the
defendant come towards him with a woman companion from a dance area
in the rear of the establishment; that he recognized the defendant;
that Rummerfield stopped at the bar to observe DeHerrera; that the
couple walked by him and when defendant was fifteen or twenty feet
past, Rummerfield saw him put his right hand in his right hand suit
pocket and extract an object from it; that as defendant did so, he
passed one Vigil and shispered something to him; that he handed
Vigil the object which the latter placed in his own pocket. 
Immediately thereafter, Rummerfield approached Vigil who promptly
sat down in a booth.  The detective then saw Vigil remove the
object from his pocket and place it on the wooden seat of the
booth.  As Vigil drew his hand away, Rummerfield observed that the
object was a .22 automatic pistol which later turned out to be
loaded.  Thereafter the gun was seized and the arrest of DeHerrera
followed.

     The gist of the defense testimony was that Vigil had the gun
from the start and playfully pointed it at DeHerrera as he walked
by and thereafter returned it to his own pocket.

     The emphasis in this writ of error is on the fact that
Rummerfield stated that he could not see the pistol in defendant's
pocket and therefore, it is argued, he could not know it was
concealed.  The proposition is a rhetorical one: for if an object
is concealed, obviously it cannot be seen.  We hold that
concealment was prima facie established under the recited facts,
especially, when Rummerfield testified that he could not see any
part of the weapon prior to its removal from the defendant's
pocket.  Compare: Pueblo v. Sanders, 151 Colo. 216, 376 P.2d 996
(1962), and McCray v. City and County of Denver, 144 Colo. 1, 354
P.2d 585 (1960).

     It is urged that there was a lack of proof that the gun was
concealed, since Rummerfield stated that from where he was
standing, just before the gun was removed by DeHerrera, he was able
to see only a part of the defendant's coat pocket.  A perusal of
the testimony in this regard, however, leaves no doubt that
Rummerfield had a view of the entire pocket as the defendant
approached and passed him, and Rummerfield did not see the gun at
that time.  The testimony upon which Vigil relies related only to
that moment when the defendant placed his hand in his pocket to
remove the weapon.  It raised no doubts about the concealed nature
of the gun up to that time.

     There being ample evidence in the record to sustain the
conviction, the judgment is affirmed.

     PRINGLE and SCHAUER, JJ., concur.