Short v. People, 27 Colo. 175

Short v. People

27 Colo. 175 | Colo. | 1900

Chiee Justice Campbell

delivered the opinion of the court.

The assignments of error are argued under four heads: First, error in consolidation of the cases for trial; second, error in admitting evidence ; third, error in the giving and refusing of instructions; fourth, error in the form of verdicts as rendered.

1. Section 1452, Mills’ Ann. Stats. (Gen. Stats. 1883, sec. 945) permits the joinder in one indictment or information of several charges against any persons for the same act or transaction, which may be properly joined, instead of in separate indictments or informations, and when two or more indictments or informations have been found, the court may order them consolidated for trial. This statute has been under consideration by this court in Chesnut v. The People, 21 Colo. 512; Packer v. The People, 26 Colo. 306 ; and by the court of appeals in Cummins v. The People, 4 Colo. App. 71; and White v. The People, 8 Colo. App. 289. The statement was made by the district attorney when the consolidation was ordered that the several counts in the two informations referred to the same transaction, and though that fact did not appear upon their face, it sufficiently appears from what testimony there is in this record that such was the case, and that the different counts were but different methods of charging the same offense. That being so, under the authorities already cited, the consolidation was proper.

. 2. The order in which testimony shall be admitted rests largely in the sound discretion of the trial court. Possibly cases may be found wherein the declaration is made that extrajudicial confessions of a prisoner cannot be admitted until after the corpus delicti has been established. We cannot subscribe to that doctrine thus broadly stated, though it is doubtless true, as a general rule, that evidence tending to establish the corpus delicti should be first in the order of proof. But extrajudicial confessions, uncorroborated by other evidence tending to establish the corpus delicti and the connec*182tion of tbe defendant with it, are not sufficient to sustain a conviction. It is upon tbe latter ground that tbe defendants mainly rely. They strenuously argue that, aside from the alleged confessions, there is no testimony whatever showing, or tending to show, the existence of the fact of a conspiracy (which is the crime charged).

The conspiracy to commit a burglary, and burglary, are distinct and separate offenses, and the one may be made out without reference to the other, and separate punishment may be inflicted upon conviction of each offense. Evidence of the consummation of the conspiracy, however, is always proper in a trial for the conspiracy, not necessarily for the purpose of establishing the conspiracy, but as a circumstance tending to prove, and as throwing light upon it. The unlawful agreement is the gist of the crime of conspiracy; and, in the nature of things, direct and positive evidence is seldom accessible. It must be largely circumstantial. We cannot say that in this record there is no corroboration whatever of the confessions of defendant, and no independent evidence of the existence of a conspiracy. Possibly the mere fact that the witness Hannah Anderson testified to the presence of the defendants at the house in question at or about the time of the commission of the burglary is not strong corroborative testimony, nor that any one fact or circumstance testified to by her tends strongly to prove the conspiracy; but her entire testimony about the two defendants Short and Gill, and the perpetration of the burglary at least tends to show, and is of some weight in establishing, the conspiracy to commit that crime, concerning the existence of which the confession of each defendant relates.

There is another reason why plaintiffs in error cannot be heard upon this assignment. All the evidence has not been brought up. The certificate of the trial judge is as follows:

“ This is to certify that the foregoing is all the evidence introduced in the trial of these cases relating in any manner to the admissibility of the confessions testified to by the witnesses for the people; that the defense was an absolute denial *183of the commission of the crime charged and a denial of ever having made said confessions.”

The construction put upon this certificate by counsel for plaintiffs in error is that this record contains all the evidence that in any way tends to corroborate the confessions, and all that in any manner bears upon the existence of the conspiracy. Such, however, is not our interpretation. The language is plain and unambiguous, and in terms recites that all of the evidence is in the bill which relates in any manner to the admissibility of the confessions, that is, as to whether or not they were made voluntarily, and with or without duress, or under such conditions as the rules of evidence require when an offer of proof of a defendant’s confession is made. This does not mean that there was not evidence, aside from the admitted confessions, in that portion not brought up, which is corroborative in character and tends to establish the existence of a conspiracy. If there was no evidence of the latter kind, it would have been easy for the judge to say so, and we cannot presume that he intended to certify that there was no other and corroborative evidence, in view of the fact that he submitted the case to the jury on the assumption that there was independent proof of the corpus delicti.

It is a presumption that the action of the trial court was right unless the record affirmatively shows to the contrary; and as it was the duty of the trial court to withdraw the case from the jury and direct a verdict for the defendants unless there was some independent evidence tending to establish the conspiracy in confirmation of the confessions, we must presume that evidence of this kind was before the court unless the record shows there was not; and if, as plaintiffs in error claim, the record as certified up does not show it, the presumption is that the evidence brought out upon the examination of the defendants, none of which has been included in the bill, contained it.

The additional point is made that the confession of Gill, not made in the presence of his codefendant Short, was admissible only as against Gill, and not against Short, and the *184jury should have been so instructed. When this testimony was offered and the objection made, the court, in the presence of the jury, remarked that, unless Short in some way was connected with it, the jury would be instructed to disregard the testimony, so far as it pertained to him. Before argument counsel for defendant Short did ask the court to instruct the jury to disregard the admissions, declarations and confessions of Gill as against defendant Short. But this was manifestly an improper request, for certainly some of Gill’s declarations were made in Short’s presence, and the court, for that reason alone, might refuse the request.

Furthermore, the record is that, on the day following this confession made in Short’s absence, Gill repeated the same in substance in Short’s presence, and the latter did not deny a word of it, but virtually admitted the truth of all that Gill said, and apparently sought to escape the consequences of the admission by protesting (which seems to be true) that he himself, though joining in the conspiracy, did not in person enter the house and take the money, but procured a third person — William Brown- — to do so. In this view, therefore, we think there was no prejudicial error in refusing the request.

3. We cannot consider the objections to the instructions for all the evidence in the case is not before us, and we. cannot, for that reason, enter upon a fruitless investigation of propositions of law whose pertinency and accuracy can be determined only in the light of all the evidence bearing upon them.

It is insisted, however, that one of the instructions, wherein the court said that a conspiracy is an agreement between two or more persons to do a lawful act in an unlawful manner is wrong under any supposable state of evidence. In Connor v. The People, 18 Colo. 373, Miller v. The People, 22 Colo. 530, and Lipschitz v. The People, 25 Colo. 261, it has been held that the object of the conspiracy must itself be an unlawful act if committed, and the doing of a lawful act in an unlawful -way is not within the purview of our conspiracy *185statute. As an abstract proposition, therefore, the instruction of the court in this case to the contrary is wrong. But in view of the fact that the object of the conspiracy charged in each count of these two informations was burglary, which in itself is a crime under our statute, no possible harm could result to the defendants from the erroneous instruction complained of. It was a clear case of harmless error, though the instruction should not have been given.

4. With the verdict in information No. 1 we have nothing to do, for the trial court set it aside. The language of the verdict under the other information is : “We, the jury, find the defendants John Short and William Gill guilty of conspiracy to commit burglary as charged in the---count of the information.” The objection is that it is uncertain, obscure, ambiguous, and that it is impossible to tell therefrom of which offense the defendants were convicted, and therefore the court could not intelligently determine what penalty to inflict.

The language is that the defendants were guilty of a conspiracy to commit burglary, and that crime is charged in two separate counts, the only difference being that the first charges the intent with which the burglary was to be committed was to steal the personal property of a designated person, while in the other it was to steal personal goods without reference to the owner. There is nothing on the face of the information to enable us to determine whether the two counts charged one offense in two different ways, or two separate offenses, and the only way definitely to determine this is to resort to the bill of exceptions. And unless it appears, either from the face of the information, or from the bill, that two separate offenses are charged in the same information, the presumption is that but one offense is charged. 1 Bishop, Crim. Pro. § 1825-1884; 21 Am. & Eng. Ency. of Law, 1078. And where the information is for one offense only, charged in separate counts, the jury may return the general verdict, guilty or not guilty; and the court may, as was done in this case, pass sentence for a conviction of one offense.

*186From thé record before us, as already suggested, it would seem that only one offense was intended to be charged, and that the defendants were tried for only one offense, and the judge’s charge mates it quite obvious that only one offense was submitted to the jury, and defendants were sentenced as for a conviction of one crime. If the contrary is true, and the evidence not certified up would require us to reach a different conclusion, it was the duty of the plaintiffs in error to furnish us with the same.

Upon the whole case it is proper to say that the guilt of these defendants seems clear, and while this furnishes no reason for disregarding those sound and stable principles of the criminal law which should be applied to every case, still we should not be astute to find reasons for reversal where guilt so manifestly appears and where a fair trial is had. It may be true that there is no direct testimony to the existence of a conspiracy, and that the corroborating proof, which consists altogether of .circumstances, may not be so clear and convincing as is desirable; but, though seriously conflicting, it was weighty enough to satisfy the jury, and was of the character and strength to satisfy the trial judge, not only at the time he permitted the testimony of the confessions to remain before the jury, but also upon the motion for a new trial after all of the testimony had been laid before him.

In criminal as in civil trials presumptions of the correctness of the rulings of the trial court and of the regularity of the proceedings below, are indulged by a court of review, and the burden of showing prejudicial error rests upon him who asserts it; and it should be made to appear from the record in the case as presented in the appellate tribunal before a reversal is had.

The judgment should be affirmed, and it is so ordered.

Affirmed.