Crane v. People

damages ant cannot be mulcted therefor under evi- wholly charges dence which is insufficient negligence. refusing direct a for the erred in The court defendent. urge negligence for defendant error

Counsel adoption injury diagnosis of a stand of an and the only expert shown witnesses ard of treatment can be Kerr, v. McGraw is controlled and that supra, Lininger, Daly 401, 288 Pac. 87 Colo. unnecessary be A of this 633. consideration expert appears lay testi nor neither cause here there mony showing negligence. unnecessary to foregoing, becomes view assignments of error. other

consider the cause Accordingly reversed judgment for defend- to enter remanded with directions costs. for his ant

No. 12,726. People. et al. v.

Crane (11 567) [2d] P. 2,May

Decided 1932. plaintiffs Messrs. Blount, for Silverstein & Rosner, in error. Mr. Attorney L. Ireland, General, Mr. Wal- Clarence people. S. for the Assistant, lace Porth,

En Banc.

Mr. delivered the of the court. Burke in error are hereinafter referred to as de Plaintiees Flynn respectively. jury fendants, or as Crane and A " guilty conspiracy’' money by returned them to obtain pretenses.” means of false Thereon Crane was sentenced penitentiary to Flynn years term of five to six years.

for a term of four to five To review judgment they prosecute this writ. jointly charged Defendants and one Dill were in each yvas appre- eleven counts of an information. Dill people’s

hended. At the close of the evidence with- dreyv jury six of the counts. The returned verdicts of guilty on the second count and not on the remain- ing four. assignments There are eleven "amended set error” adydsed forth in the abstract. We are defendants’ yvere originally

brief that there "several hundred” and in the "obiter dicta” section thereof some of are these pressed ignore and their bases indicated. We them for suggested by quoted the reason the above title of the they appear, brief under which and commend wisdom which dictated'the amendment. up

Counsel for defendants sum their contentions, cov- assignments, ered these eleven in two short state- fairly ments, which we think be thus further con- (1) densed: The withdrawal of six counts amounted (2) law to verdicts of all; the verdicts of on the four counts are inconsistent with, impotent, hence render the verdicts of on the second. vary

These eleven counts in statement, and even, in particular some instances, as to the offense which it is complained every acts of constitute. But possible presumption indulged in defendants’ favor is by treating them, as we do, as identical. When the first position six prosecution were withdrawn the by attorney: thus stated the district “The counts with- just repetition drawn were practical- a of what is left, ly;” remaining and the court said that the five “arise upon out of and are based the same transaction.” It presented should be first noted that there is here no question jurisdiction, sufficiency charge, of of admission rejection or sufficiency legality of evidence, thereof, or jury. simply say, misconduct of the Defendants sub- in charge stance, that when one was or a dismissed, of not returned on no verdict of on one, substantially charge they identical can nor can stand, ever be retried.

Among the Colorado cases cited in of defend position People, ants’ are: v. 23 Roland Colo. 47 Pac. 283, Bigcraft People, 269; v. 30 Colo. 298, 417; 70 Pac. Davi People, dsonv. 64 281, Colo. 170 Pac. 962; Castner Peo v. ple, People, 67 Colo. 327, 184 387; Pac. Briola v. 76 Colo. 232 489, Pac. 924. It is clear, however, that no one of question these reaches the identical here raised.

most that can be said in this connection that lead logically up to our announcement in here- ease, the Webb

24 it

inafter noticed. inferentially fact be that some of them were People, overruled in Loos v. 166, Colo. very question which to 268 Pac. comes close now 536, Bigcraft supra, case, before us. In the on a conviction operate acquittal was held to as an one such count on the Certainly the other. such conviction on the one effect by jury to could not be weakened failure of count any acquittal on take action verdict of submitted supra, held them on the Yet in the Loos we case, other. this no such as resulted a conflict. need further these cases however, notice not, We People, application v. in Webb doubtful because rely, now 906, Colo. 262 Pac. on which defendants 1, question squarely presented banc, court en was de dissent, that without decision, under announced prevail. announced, when True, fendants here would part 622, 99 S. E. 191, Kuck 149 Ga. State, by v. rested Boyd State, which was later modified that court in v. 48, 118 E. which modification we 156 Ga. S. 705, largely Loos our decided some rested decision People, v.Webb six months later. But our conclusion in supra, supported cases, and federal state also authority, excluding, weight perhaps the distinct Supreme in which Court, however, the United States apparently, are never risen. We had, identical great enlightenment from however, without now, year, January present months two tribunal. filing prior at before the ease was issue to the instant court its herein, the last two briefs handed down Sup. Ct. Dunn United opinion in a Therein, brief herein cited counsel. question was decided Holmes, identical Mr. Justice contrary of con to contention these defendants and trary case. to our conclusion on on convicted counts, three Bunn tried

There disregard acquitted the others. on We first and unnecessary The first our examination. to third as by keeping for sale charged nuisance of a maintenance

25 whiskey place designated “five drinks of and one at the posses of second unlawful drink beer.” The liquor place. at same time sion the same and It is perfectly apparent that if defendant was not on have on the second count he could not been Supreme first. The States Court held this United inconsistency guilty. did invalidate the verdict of holding supported by That state and federal courts. (N.S.) v. 75 L.R.A. Huff, State Kan. 90 Pac. 12 585, 279, Browning N. E. 1094; State, 566; 120 St. 165 Ohio (2d) Steckler v. Fed. States, 59; United Gozner v. (2d) States, United 9 Fed. 603. Mr. Butler alone very opinion dissented in .case. In a able he the Dunn presents contrary to authorities the reasons Among which rest. these be noted: State Speiller v. Headrick, 179 v. United Mo. 630; S. W. (2d) States, 31 682; Fed. Rosenthal v. United 714. Fed. way authority little

While is cited in the support dissenting opinion of the decision, em phasizes sets, the clear cut before the court and forth the numerous on authorities both sides of it which says: were considered. True, Mr. Justice Holmes “If presented against had indictments been the de possession fendant for and for maintenance of a nui separately sance, and had been tried, the same evidence being support acquittal offered in an each, on one pleaded judicata could not be as res of the other. Where separately charged the offenses are in the courts of a single indictment the must same rule hold.” cannot, We regard portion however, this as more than general the announcement of rule; where dif because, separately charged separately ferent offenses are being tried, same evidence offered in each, pleaded judicata an on one can be res jurors if other the facts which the must have or found, acquit failed on the first are involved in find, guilt inconsistent trial of the All with, second. 26 clearly dissenting

is demonstrated in the of Mr. in Butler From same case. the latter source inferentially also we learn in detail what is admitted in opinion, possession by negatived the main i. that the e., the verdict of count was not the second es sential to the verdict on the first. The majority opinion reason, true in Dunn case supra, general rule is not to be found in the so stated, holding by quotation supported in the but which is gives from Steckler v. United which Mr. Justice Holmes quotation (2d) 7 60. That case and that 59, Fed. charges separate trials, but not dealt, offenses, with charging offense with the same counts judgment case, in the Dunn trial. same The basis like the basis unequivocal. the Webb is clear ‘‘ In the first it thus stated: Consist is ency necessary;” not in the second it is verdict is hence irreconcilable,” thus stated: two verdicts are “The * * * destroys propositions These are the other.” “each Supreme Court direct and irreconcilable conflict. clearly to what committed is thus the United States may properly it has because rule, we the Kansas tei’m jurisdiction. upheld in that been so often announced and v. v. 688; State Jackson, 711, Pac. 121 Kan. State also State Pac. 494. See 131 Kan. Geselle, Daly, cited and cases 250 Pac. 976, 77 Mont. foregoing. three perhaps have “inconsistent verdicts” been un-

These duly reviewing follow- even those courts, censured clearly ing correct- rule. To understand and the Kansas change places ly interpret with have them we but familiarity laying jurors, with technical rules our aside inadequately remembering they in- are often imagine They trick is not that a can structed thereon. something superfluous being played or that them, They injected “just asked being are to make it hard.” propounded question, given in different to answer guilty,” ways. “Is defendant That not, say guilty?” If can “Yes” “Is defendant but, requires say “Yes” to them last the law to the duty primary find is, is to what defendant Their first. they guilty he is answer that not. Once not what he is necessity of with the find confronted and again answering themselves question put in a different the same that, proved way, knowing with, is defendant it offense, one for, but be sentenced can of, and they repeat find- that should occurs to them that never wording charge seems ing. whose Hence select that evidence, write fit view to them “guilty” their to best dispose of re- perfunctorily the that and as to charged in guilty.” A twice If be “not with a mainder same time of the B, murder with at an information the jury, place convinced must means, the same a peril discharging obliged, guilt, him at the of A’s n entirely, B killed? to that has been twice find effect practical standpoint of the administration Prom the is rule the for the Kansas law, reason the criminal readily comprehended it is we remember when prosecu- practice repeatedly approved well known and language varying charge to offense tors separate same This often information. counts same necessary cer- advance, be not, state can because developed by tain what facts evidence, particulars people’s a bill of is thus obviated. “When equiva- evidence is an election the counts is in, between lent to a or dismissal abandonment of those selected. acquittal equivalent if held thereon, But to an as supra, state, in the Rowland case and the Briola case, though tight again having defendant, water would Nor would elect, dare to nor abandon. dismiss, neither in- under an it dare submit verdicts on each count save acquittal on none, on or since an struction to convict all acquittal operates on held all, one as an supra. pronounced on since could be But sentence be an idle on others would one, but gesture, verdicts doing requires of a futile never and the.law tiling-. acquittal operates If an on one count as an ac- quittal equal plausibility, on all with can, be contended that verdicts of on all are inconsistent and consti- jeopardy. tute double The tactical move would therefore ground, be, first to have all one set but aside on that then remaining ground attack the on ac- equivalent tion taken others to an safely on all. It follows that the state never could file only single counts offense, based on a and could respond particulars to a motion for a bill of antici- pating*, peril, develop. at its what the evidence would reasoning which must be relied the authorities on which the Webb case rests leads illogical another or If an verdict, conclusion. instructed during jury withdrawal or the failure trial, any practically to return one of two identical verdict, on operates an further counts, as thereon bars prosecution of this to a decision the amounts other, by prosecutor, inaction, in cases fact, court or or mere where criminal cases the conflict. in evidence is in But by questions only the such of fact can be determined jury. say peril

Suffice it here to that, that no convinced personal rights can arise from the establishment of the Kansas rule, that the administration of the criminal law greatly by simplified following will be it, and met the conflicting conclusions of state and federal we courts, high- now elect to overrule the Webb case and follow the judicial est tribunal of the nation. judgment accordingly

The affirmed. Mr. Justice Butleb and Mr. Hilliabd dissent. Mr. Justice Butleb, dissenting. opinion majority

It is in said when Webb v. People, sup 83 Colo. 262 Pac. 906, was decided it was ported “perhaps weight authority., the distinct of The court bases its reversal that case Dunn Sup. (U. S.), decision, 189. That Ct. United States the decision is not inconsistent with as I understand it, support the conclusion in and does the Webb majority opinion in There case. in the announced two cases. between is vital distinction before the court Dunn case charged crime in the second guilty Was the be stated thus: if was not the defendant such that, count such charged of the crime he could not be crime, charged the crime words, first other Was Or, count? separate if there had been that, in the second count such charge ac- been tried an first, and that had indictments judicata charge quittal pleaded as res could be must be was, indictment? If it other judgment must be affirmed. if was reversed; Eight not, charged justices were the crime count far from that the second was so different charged be in the first count that the defendant could still of the latter. of the former and pre- The “If indictments had been court said: possession ag’ainst for sented defendant separately tried, of a had been maintenance nuisance and being the acquittal an each, evidence offered in same judicata pleaded on one could not res separately other. offenses are Where single rule must of a indictment the same counts ’’ logically for an affirmance hold. That view called judgment, and such the decision of the court. dissenting justice, opin- on hand, other the was guilty ion if the that, defendant was of the crime charged he could of in the second not be count, the in in other there first; crime the if words, former had an indictments, been charge judicata res That view would be of the latter. necessarily judgment, called for of a reversal the majority justices the view, had the talien that the undoubtedly judg-ment have been reversed. would present majority opinion the in treats The the case quoted language majority opinion above from tbe in the gen- as no Dunn case more than “the announcement of a language I neg- eral rule.” do not so understand it. The supposition. purport atives such It does not to state a general mere rule. The statement is not in the abstract, applied specifically but in the concrete; it is the to case dealing then the before court. court was in generalities, pages brief, but in a concise two particular dealt with the in facts and with the applicable quoted law thereto. It the would seem that language passed importance no should not over as to the decision. It on it shows its face that was used to justify the result at the court arrived. The con- which very clusion that it the of the decision seems basis me to irresistible. present upon case, the at least some of the counts acquitted which the defendants were are identical with upon the one which were the convicted; court treats Referring all of the counts as identical. to the Dunn case, says perfectly apparent this court that, “It if defendant was not the on second count he could not Having adopted have been first.” the thus the premise by adopted dissenting justice in the Dunn adopts majority court case, this the conclusion of the justices in that we have based, case—a conclusion very premise opposite seen, the one adopted justice dissenting in that case present words, court in the In other this court case. adopts premise adopted dissenting opinion in rejects case, the Dunn but conclusion which that leads; premise necessarily adopts the conclusion an- majority opinion nounced in that while case, very rejecting premise upon I which rests. am un- reasoning able to follow the and cannot in the con- concur repudiating that, clusion doctrine announced following highest judicial we are tribunal of the nation. expressed majority opin-

I do not share the fear,

31 if we follow the case the could never ion, that state safely separate file counts in one information, as cus tomarily may has done. In different counts defendant charged be with an assault to an assault with a murder, deadly bodily weapon injury, intent with to commit a rape, mayhem, an assault an assault to commit and an to rob, assault acquitted be convicted on one and count guilty on the others. Verdicts of not on all but repugnant one of the counts would and would to, nullify, the verdict on the one count. So a larceny may joined receiving count with one for g’oods, stolen and a verdict of not one would repugnant nullify, not be to, and would not a verdict burglary on the other. force and So of with burglary forgery uttering. without force. So, also, of examples readily Other will profession, occur to the but foregoing applies will suffice. The same rule where charged separate the same having crime is counts as been committed different means. Even the as majority opinion any sumed in the need not cause anxiety. If A were in two counts in an informa tion place with the murder of B at the same time and supposition- the same means—an unthinkable — n proper procedure jury be for would to return a general verdict on the information, not a on each count; and, if that course, verdict should be guilty, that the defendant is the defendant would be sen only People, tenced for one offense. Short v. 27 Colo. 175, Snyder 60 Pac. 350; v. United 112 States, U. S. 5 216, Sup. 118; Ct. Dunbar v. United 156 U. S. Sup. 15 325; Ct. Powers v. United States, 223 U. S. Sup. (C. 32 Colo.), Ct. 281; Babcock v. United States C. pages Bishop’s Fed. 873; 27 R. C. L., 856, 857; New adoption Crim. §1015a. Proc., Thus, of the correct procedure difficulty suggested would avoid in the ma jority opinion. difficulty It also would have avoided the arising present case, for, as the court has said, charg*es this case the in the several counts are identical. attorneys part preparing Care on the of district in in- part and on indictments, formations and trial submitting jury, courts in to the would avoid situa- cases presented such one assumed case and tions as the by the record in this case. overruling the

I in Dunn case for find no warrant opinion indi- however, case, case. The in Webb Webb part. It be overruled cates that the decision should existing in that in the situation what is holds, obvious, ‘‘ flatly each irreconcilable, that case the two verdicts are destroys repugnant It the other.” and contradicts, to, is destroyed, clear that as both verdicts were seems judgment validity support a no and could not had acquittal. were nulli- verdicts Both either conviction or jeopardy. support plea of former a ties and neither could contradictory, repugnant ver- irreconcilable, Where such case, there a mistrial. In the returned, dicts are discharge defendant, we ordered however, holding trial for a new that if the were sent back successfully jeopardy. plead former the defendant could holdings being should, and Ave inconsistent, can, The two accept reject the unreasonable. the reasonable and notwithstanding Adgilance the district

Where, attorney presented trial there to us court, justice record to both discloses, such as this situation people would be best served the defendant and the reversing judgment remanding* the case for a Rosenthal v. followed in neAYtrial. Such was course Speiller States, 714; v. United 276 Fed. United (2d) 278 Mo. S. W. 682; v. Akers, Fed. State People Harrigan, N. 306. 218 Mich. 187 W. v. 424; approval Avith the Webb two were cited The last cases dissenting justice said in the Dunn case The case. well-settled establish as the authorities his charging of same indictment an when, “that acquits jury as to one counts, fense different a neAvtrial.” is entitled to on the other defendant convicts supra, noted, was has been Akers, which, as State with, approval cited in the Webb court said: “It will be noted that each count of the information charges appellant with the identical crime. The verdict guilty him finds under the first count and not un- entirely der the second count. verdict is inconsistent, jury legally because the could not have found what their says they Appellant did find. was either or not and could not been have both crime, jury. as found therefore think the verdict is We contradictory too of conviction. The somewhat more difficult now what arises, appellant? shall be done with the discharged ordered Shall he be or remanded a new should the cause be trial? In the case State v. Headrick, 179 Mo. 300, very (1) under a similar verdict it was held: That contradictory verdict ‘is inconsistent and and cannot be permitted (2) portion to stand.’ That verdict of the finding oper- the defendant count under one ated as a bar to a conviction the other count, that, charged, was to be dis- therefore, defendant entitled por- accordingly

which that ordered. With opinion holding tion of the in the Headrick case ver- permitted dict should not be to stand because contradic- tory (and readily verdict) therefore the as no same we agree applied and have the rule announced in the thus portion case at bar. with But of the mentioned above opinion holding’ operates that such a verdict a as bar prosecution discharge a further a authorizes prisoner agree. we are unable to If the verdict in the Headrick case judg- was too inconsistent to a sup- ment conviction it was likewise too inconsistent to port judgment acquittal. As has often been said, * * * poor ways.’ ‘it a is rule which does not work both The verdict held in review in the Headrick case and like- pointed wise the verdict in the case bar, at been as has contradictory out too above, are to be considered a ver- acquittal. dict either of conviction or We are therefore opinion that the decision in the Headrick therein under was, that the appellant it held far as so should discharged, to he entitled circumstances, at bar was in the case overruled. Since aor of conviction a judgment to sustain either sufficient the judg- follows that necessarily it of acquittal judgment for remanded the cause reversed ment should be rea- in that case followed The procedure new trial.” of de- rights the substantial It protects sonable and fair. im- no less what and, cases, in criminal fendants people. rights it protects also portance, con- irreconcilable, that holds far as the So Webb other, each destroy verdicts tradictory, repugnant verdicts such it holds far as followed; so should be over- it should discharge, defendant to a entitle ruled. I that the conclude considerations,

Prom the foregoing for remanded and the cause reversed should be judgment a new trial. Hilliard, dissenting.

Mr. Justice ex- my far as Butler adheres to the views So brother People, I am Webb 262 Pac. pressed Colo. 1, I as beyond quite am him, with but agreement of the court. his I am to that much as opposed held to be con- case should be my in reason and salu- I read it is sound trolling, it, tary effect. that

One seems all the members the thing plain; court that the case and the one at bar are agree Webb unanimity The lack of arises out of two things; similar. like or unlike Dunn v. United that the case bar at is States, 284 52 Ct. and that the 390, Sup. 189, U. S. Webb only My is is that the court case sound. partially and Dunn to be mistaken in the cases believing Webb Butler is mistaken in his and that Mr. similar, Justice new trial can be circumstances such position had.

35 Assuming, and Dunn eases that the Webb are however, duty it our to follow the I do not conceive alike, that- respective their former. Within and overrule latter Supreme Supreme and spheres Court Colorado equally powerful. Each, are of the United States Court respect presume, the views and decisions may I should judgments re our In circumstances other. some by that court is tribunal; others, of that versed those by of inferior held courts have what we as bound chiefly argue jurisdiction I in this are bound. What state overturning decision our unanimous I dislike is that Supreme solely Court because Webb way us controls in no whose decision United 1019), (Massantonio People, 236 Pac. 392, Colo. upon im there of a case first a different view has taken majority contrary pression in this cause and to what may authority weight of be. concede the proper by point Mr. Butler, made I procedure is, think, new order trial, is to remand and Campbell sufficiently said Mr. Justice answered what “* * * page no verdict 3: there is at in the upon legally and a sentenced, can be which defendant grounds any upon the other trial reversal for a new alleged] -verdict of since the be useless [of error would jury finding the first under the defendant successfully plea urge her to count would entitle ground informa- jeopardy either former potency gives to language, to me, tion.” This seems provisions of our Constitution. point emphasize I somewhat another made wish to part of district at Butler that care on the Mr. Justice torneys judges of this trial will obviate situations My of such officers Idnd. views on duties page People, 65, at 8, in Kolkman v. Colo. found apocryphal, although apparently are Pac. I feel I must continue subscribe. those which overrule constitutions short, we should not strain precedents fixed to accommodate those who are entitled greater rights persons. to no than accused opinion I am of that the should he reversed discharged. and the defendants 13,019.

No. People.

Maestas (11 227) [2d] P. 2,May

Decided 1932. plaintiff Mr. James P. in error. Veerkamp, Attorney Mr. L. Mr. General, Ireland, Clarence Wal- people. S. for Assistant, lace Porth, En Banc. delivered the of the court.

Mr. Alter Maestas found murder of the'first Joe

Case Details

Case Name: Crane v. People

Court Name: Supreme Court of Colorado

Date Published: May 2, 1932

Citation: 11 P.2d 567

Docket Number: No. 12,726.

Court Abbreviation: Colo.