*1 m
No. 14,231. People. et al. v.
Smаldone (88 103) [2d] P. Rehearing Decided December 1938. denied March 1939. *2 Ralph Mr. S. L. Mr. Jean Breitenstein, Mr. Carr, Ralph Mr. Arthur Mr. John H. Shippey, Cummings, J. in error. Morrison, plaintiffs R. Byron Mr. Reid Rogers, Attorney General,
Mr. G. Wil- Assistant, people. liams,
En Banc. Young opinion of court. delivered
Mr. Justice error four' defendants plaintiffs are three The in a criminal action in the district court of the instituted City will of Denver. For convenience County they They designated collectively appeared. they of an were found on each two counts guilty information assault with intent to kill charging an murder, Leo Barnes. conspiracy murder, kill imposed verdicts, Sentences were on the reverse by writ of error. judgment case here present Clyde Eugene charged Smaldone, The defendants Steph- Smaldone; alias Checkers Ova Smaldone, Elijah ens, Stephens, alias Charles Charles Ed- Belmont; alias O’Hara, ward A. A. O’Hare, Edward Allen alias alias Edward Ward, alias Doring, Homer alias Edward Oliver O’Hare, Baldy; alias John Doe Richard Roe. court not guilty to defendant directed'a verdict *3 O’Hara. The Doe and John Richard others, excluding Roe, in- were each on both counts of guilty found formation.
The and are bill of considerable exceptions record length, mоre 1600 folios. A containing than statement in detail length necessary some and at to an understanding assigned of the legal errors and the propositions involved.
On December at about Leo Barnes p. m., his and on starter. Am stepped entered car explosion shown followed, by expert pro- evidence to have been by seriously duced which wrecked the car and dynamite, injured At car Barnes. time curb stood at the his on apartment. in front of ex- Grant street Barnes’ plosion was claim severity could logically made, and there no fact was contention, was any purpose caused for other than to effect the death witness, Barnes. One Mrs. Gilmore, Jack car whose was parked curb car, at behind the Barnes testified that on a little date, 7 m., p. before she saw two men, whose was car double parked alongside the Barnes car, and standing by working at of the something inside Engene defendant she identified car. One these and a Daniels testified further Smaldone. She by being-pushed men south delivery two Fisher along truck was cor- time she was the same and street at Grant by the Daniels driver a for roborated this statement Company, was said his truck who Fisher and Stores push had to time and that he stalled at about that the men parked until waited a car. She double around pulled curb, drove- away, from and out drove then and found returned errand, few blocks an Barnes explosion that the in the had occurred interim p. saw officer "Williams m. on fire. About 6:10 car was telephone in a Clyde booth coming out aof Smaldone drug Broadway, which at 10th street and store located where from 10th streets Grant about three blocks Clyde explosion ar- occurred. after his Smaldone, drug explaining that at store; rest, admitted stopped phone way Pueblo had his he was on day He next that he wife. said he learned to his phoned from the Denver officers and them wanted return. Pueblo he would gambler professional
Leo Barnes his own unsavory including two record, had most admissions Dyer act one a violation criminal for convictions, Kentucky. robbery highway Chicago one in He testified manager dining of the that he been gam- Blakeland at room defendant Inn, Douglas county, bling per that he had a resort in five enterprise. He testified cent interest also that explosion indebted to him time *4 and another testified sum witness that $7,000, give Stephens money Barnes he seen at various times had money closed, Blakeland on one occasion to after buy aeroplane. Inn had been closed an Blakeland Stephens, nephew his 1936 the authorities June of Stephens enjoined from fur- Harrison and Barnes- place Douglas county. operation of such ther the Before Stephens place in evidence that was closed it had taken out of venture $350,000. Prior to the closing Inn Blakeland had Stephens embarked on another enterprise in Denver known Mammoth Rink Skating and had Blakeland leased to La Jerry Sasso Tommy Abdoe who operated it for a after time which, rink proving losing Stephens proposition, again took over operated Blakeland which he La Sasso and nights, Abdoe run continuing day. it during Smal- dones La worked for nights Sasso and some Abdoe, Stephens. Stephens that a testified few months after Blakeland him was closed came Barnes him asked if he, Stephens, go would with him another gambling enterprise if find a he could suitable location and he that аgreed to he, do if could find Barnes, so a place; that a little later Barnes returned and he had said rented Mrs. Luco’s situated on the place- same property Blakeland; he that Barnes that under an in- told he junction operate in that not locality not did want to down go there; Barnes then went to La who Sasso came him find he out what thought proposition told he him it might be all' right. Stephens further testified after this incident Barnes talked him several times about opening Mrs. Luco’s at called place, Ranch, the Cottonwood but said nothing Stephens, about into it him, going until he, Barnes, after opened had place had been closed of- ; ficers December after 4th, Cottonwood Ranch had been closed by the while was authorities and still closed again see at Barnes came to him the Brown Palace Hotel about it. He reopening said Barnes offered him 33% he proceeds cent if per would join but that him, he did not in because he go want did think could run version of it. Barnes’ this conversation, which the liberty and which believe, may we assume did believe, Stephens he asked if objection reopening him Cottonwоod Ranch and that if said none he had he was ‘-‘cut in,” so Barnes cent, per offered him demanded 33% *5 per would if into alone he him he went cent and told proceeded Friday Barnes was and a week. This live place reopen has preparations alone. .It with his appre- question significant hearing Barnes’ a on the danger immediately conversa- after this hension of attorney company went known tion Barnes well carry gun, police permission to obtain station gun before he carried at the he trial, admitted had guns were In fact time. two he did after and so this explosion. found in his car after operating Ranch
All Cottonwood time Barnes was equipment had he safe office some Stephens Stephens operating*Blakeland Inn. had used gave key to he him the said let take the safe and him get might he wanted. so that what Blakeland he by Ranch robbed November Cottonwood were identified witness men, seven whom two Clyde Eugene and the Smaldone, Michael safe Eugene containing taken. ar- $1,600was Smaldone was robbery, Steph- questioned concerning* rested in the Brown ens at time the conversatiоn Palace been an Hotel on knew that had December 4th attempt robbery. implicate in the the Smaldones December on the afternoon testified father conducted he the restaurant 8th of was at concerning Eugene Clyde to see him Smaldone Stephens, owned in Colorado he, of an box sale ice space Springs and he that time it was measured the at Clyde fill if it sufficient. and on a There saw see agreed They Eugene younger brother. and their price further testified for the ice box. $50 evening 8th, in the that about six o’clock December engagement, pursuant previous Alma to a Bazemore, employee to his Blakeland, came room at former engagement a dinner Hotel, Brown Palace present, chauffeur, Millan, Vincent his and that telephone Stephens, girl played until a casino he, Stephens. through On occurrence call came *6 of Alma testimony Bazemore is the effect that telephone call came about that 7:45; left Stephens after immediately that she was in the room call; continuously from her arrival she was until arrested the police abоut left twenty minutes Stephens after and that no other telephone call was Stephens’ received. that Clyde had testimony Smaldone told him if afternoon he call to see in the would him evening he, he and if Stephens, to Colorado Springs was going- would bring he, ice and Clyde, box back with him, had promised to have call came money; that when the he thought Clyde and “All right was said: speaking- I come over will Clyde, up. see That you,” and and hung he then took yellow cab, own chauf- notwithstanding- his feur was in the room and car in garage his across street, Clyde’s and went house, a few doors stopping beyond and back; that walking* dark, the house but was in a few Eugene minutes Smaldone O’Hara and and came up Eugene half paid $25.00', him the money due for the Eugene ice box. Clyde testified that his brother call told him to Stephens and that when an- Stephens swered as hung above indicated and knew up he he Clyde. mistaken him for testimony His follows: is as “Q. Where you go eight did At o’clock? A. eight Q. o’clock? A. Yes, eight. about Down to my Q. brother’s house. come you How go your did I house? A. when brother’s Because took him down told get car, he me to call his Mr. up Stephens give twenty-five him for payment dollars on an electric Q. refrigerator. you Did call Mr. Stephens night? Q. A. Yes, sir. about what time? At A. Between Q. seven-thirty eight Mr. o’clock. What did Steph- A. I for Mr. say? ens asked on Stephens the phone, ‘Just a minute.’ And says, he then I ‘Mr. says, I Stephens?’ says,‘Yes.’ says, you He ‘Can come over money electric your and get refrigerator?’ He I right,’ ‘All before up, had a says, hung chance I After Q. tell was. him who he what did hung up you gone.” immediately I back, called he do? A. nothing version of his be noted that Stephens indicate mistake what said talking; says Stephens he that he whom he was as to gone, immediately back bnt called though came other call that no Alma Bazemore testified in. alighted cab from his was arrested as he Brown the street on the side 17th avenue
across Vincent Hotel Palace Bazemore and with Alma taken Millan, before, minutes arrested few night. questioned police station where all were discrepancies in numerous Detective Childers testified to during Stephen’s story afternoon *7 activities his evening among state- which were the December 8th, saw no he Sr., at the restaurant ments that of Smaldone Clyde younger Eu- and but the a one brother latter, phone gene, party that the call and a unknown to him; young lady date; a that had was from with whom he a lobby of the hotel was not he went she down to and Clyde Smaldone; the call from said later was there. He finding lobby took him he and not that he went unlighted; proceeded and house was that to his which cab rang and returned waited a short time, he bell, Eugene he and later he said while was town; Clyde’s up that at car; in house O’Hara came ice he the sale of box and that talked about returned across started the street to town and was arrested as he getting the cab. after hotel out Clyde he testified talked to Detective Childers he 9th latter Smaldone December stated p. night before; about 8:30 arrived Pueblo m. Stephens after father’s he at his
he not seen had place stopped he 8th; December in the afternoon Broadway way drug at 10th on his store street and at police officer; call wife met a his Pueblo Stephens nothing an ice box the time said about place in the father’s afternoon. was at his All of the Clyde except defendants who did Smaldone, the stand,'denied tаke in, connection with, charged. crimes Before considering assignments of error will matter clarify tend if the drawn implications from foregoing situation are set forth. Defendant Stephens clearly occupied importance a position within he fraternity sphere oper- gambling ated. He pursued long extensively his activities with Barnes and a He, had amassed fortune. nephew, Harrison said were Stephens, merely whom he his a five employees, who had each per Barnes said cent from interest enterprise, enjoined further in gambling activities closed. and Blakeland Barnes said that $7,000' was due him five cent per his split of the spoils. Stephens, though given he had since money, him the obligation. denied closed, With Blakeland came Stephens Barnes awith plan again engaging in their former operations Stephens illicit he said agreeable if Barnes could find a suitable Pur- place. suant conversation leased Cottonwood Barnes opening a a house within a Ranch, resort quarter a mile from the old Blakeland. place, Stephens, having mind injunction, locating demurred so near their former place operations. Jerry La Sasso, a former lessee of what thought asked Blakeland, Stephens it, be all might right. said gave *8 key a Barnes so that what he might get he needed at Blakeland, particularly the safe that had been used there. opened Barnes the place with Tony La Sasso and Abdoe a as month and partners, operated $1,600 profits had on November when the 9th, the safe house was and robbed taken safe two men, seven of whom were identified Clyde and Eugene as Smaldone. The continued to place 9th operate during after November the weeks follow- profit a operators $7,000’, ing netted when it was closed While again by the authorities. the resort was closed and on December Barnes 4th, again Steph- went apparently who had ens, on the remained lines wait- side ing project if see Ranch Cottonwood worked out right, any objection all and asked if had he Cotton- again being opened. Remembering wood Ranch that Stephens satisfactory had if he could find told Barnes a place go that with him; he would that he La had told might right operate Sasso that all Cotton- place profit wood; that two $8,600 made a had operated Stephens principally by months a whom man merely Stephens employee, said had been said his any; had he not have connections Barnes did Stephens put any money place; not into per Stephens twenty Barnes a offered cut cent per demanded and that refused a cent, Barnes such 33% proceeded plans cut and opening; his remember- ing Stephens opened up further that if he told him with- him not a out he would live week, whole situation, including robbery, picture of a forms that we think bearing to consider were entitled question Stephens conspir- entering motive for a into acy gambling eliminate Barnes as factor world Stephens operated. in which robbery project agreed an incident to a but
upon Stephens project between Barnes; that he had merely quiescent not abandoned, but he in which was again injected time the by demanding panied by himself into per profits, cent cut accom- 33% get if he mentioned did not it. That threat apprehensive danger apparent Barnes some attempt procure permit from his He arm himself. by Stephens lawfully attempt testified threat to a immediately. to arm himself followed threat almost anything Whether knew about robbery prosecutor apparently is immaterial. The thought it could be that he shown connec did some tion with it, think failed to con we establish partici who, nection. One pate consents did, illegal project an and authorizes initiation in, of, *9 then a engaging it; demands with those counsels for remained though in the even a time cut gains, illicit rightfully object in the cannot quiescent project, evidence, history by the the enterprise presented of one crime a even commission of though involved the if the him, or defendants with more those who are on the light throws history enterprise otherwise committing for motive he or might co-defendants his of circum- a chain crime, another which constitutes of their on stances throwing light probability some him to commit conspiracy into entered a having kill Barnes. another crime, in case mat personal a reputation, purely Evidence of against not defendant, one ter, against admissible or more for where two is a severance аnother, ground of the motive charged Similarly are jointly. of his question one which is admissible defendant a purely per like intent, reputation criminal which, entitle does think matter, not, sonal should we not, and other If the rule were another to a defendant severance. could not be tried crime jointly wise two persons avarice, one motive of and evidence admitted for com wrong. other Motive revenge and of very nature and is its a crime mind mitting a state when shown, It is, possessor. several and personal intent which is show criminal tending circumstance one necessity personal itself a state of mind and in case conspiracy case, But in a or entertaining it. crim conspiracy of a the several out a crime proceeding ingredients are inal intents participators its constituting of the crime crime of conspiracy the crim to prove Hence evidence admissible objective. par of each individual motives inal intent, including tried all whether against admissible ticipant, properly committed crime severally. or one has That jointly constitute a motive charged may suspectеd which he is same against crime another the commission (cid:127)for if second true crime Particularly is this person.
509' of prosecu conceal probability would or do with the away ££ tion might the The excite for first. circumstances a to understood desire kill innumerable. must be are that the circum only of cover those rulings courts the cared and that question, stances which counsel to to care and dare question fact counsel nowadays the that a an indication necessarily circumstance is The annals the question. slightest the rationality of judicially trials illustrate other circumstances many the motives; recognized capable becoming of a aby upon particular absence Court ruling Supreme of a propriety. Among circumstance no doubt its upon casts the instances for commonly adjudication, most offered * * * expediency noted. The may following be of of crime, a former preventing discovery it, an arrest or a persecution [prosecution] evading Wigmore desire kill.” on Evidence may lead to the (2d ed.) application vol. Exemplifying §390. a number of cases are сited large rule foregoing
the note section. appended ad certainly was holdup evidence existence of on the a motive
missible bearing’ to enter into with Barnes and away make Smaldones or with themselves another as between conspiracy knowledge Stephens’ result. admitted accomplish robbery we suspected were Smaldones a cir value as probative say lacking cannot is wholly enter Stephens to the probability of cumstance pointing of Barnes. dispose with them ing conspiracy into committed Smaldones; they a robbery That was Stephens having knowledge that it; suspected of them shown facts one suspected, plus immediate vicinity the other in the present be life; on Barnes’ made time attempt about one call from telephone expecting Stephens re another says concerning matter), -he (though in conference with and was other, ceived call from also him attempt; coupled after very shortly ’ dire Stephens before that inspired threat three fear days in Barnes and the motive ont a wiping $7,000 debt, which there was no claimed reсord, to be dne from all Barnes, suggest availability Smaldones serve purpose had a motive for out carrying prophesied and that Barnes would result Ranch opening Cottonwood without cutting him in on the profits.
Greenleaf, speaking’ of the proof charg’ed conspir- of a acy, says: “The of a will proof conspiracy generally, from case, nature be circumstantial. .the *11 Though the common the design is essence of charge, the it not is necessary the to- prove that defendants came gether actually agreed in that design, terms to have pursue If common it be by means. proved that the defendants pursued their the by same object, acts often the one one same means, performing part another another of the same so as complete it, awith view of that same attainment object, jury will be in the justified conclusion, they were in a engaged conspiracy effect that Nor object. is necessary to prove originated with conspiracy the defendants; or they met during of process its concoction; every entering into person, conspiracy or cоmmon design already formed, is law a deemed in to all party acts by any done other parties, before in afterwards, furtherance the common design.” (16th 3 on Greenleaf Evidence ed.) §93. case of Helser v.
In 100 Colo. People, 68 P. 371, (2d) it is said: “Experience taught has in con cases an spiracy unusual latitude must be in permitted admission of evidence and rule almost uni versal. As was well court said case State, 152 Ala. Rigsby 608): (44 So. ‘The proof conspiracy oftentimes, of a from very nature upon dependent circumstantial things, evidence, the conspiracy establishment of' by circumstantial latitude a wide sometimes necessary becomes the introduction the evidence the circumstances as to tending conspiracy; which, show when circumstances very slight, separately, may appear, taken but, indeed, grouped strong- tog-ether, very when and convinc- become ing-. separately, may A when taken seem circumstance, irrelevant; but, taken with some when connection other relevancy apparent’.” circumstance, its becomes conspiracy If another at bar, con- the case operate spiracy together g-ambling enterprise, operation events incident to itself a cir- becomes throwing light any cumstance on the motive parties entering conspir- or the of their into the likelihood charged acy rejection can no we sound reason for its see enterprise as evidence because illicit rather than lawful. should we think answer is, a sufficient be, parties brought themselves the circumstance into that the with its law concerned on effect prejudicial only them whether or otherwise, but with its relevancy proof issues or one in- them, charge following volved under consideration. The Wigmore pertinent from Evidence is to such a situa- general inquiry “The tion: is, what tend circumstances probably given Obviously, excite emotion? the whole range of human is here affairs involved. It would be *12 attempt catalogue the idle of various facts human potency exciting- given life with reference to their attempt emotion. Such an two exhibit would defects. It pedantic, impossible suppose would be because is operation that of human emotions can be reduced given unvarying- fact can an rules, fixed have quantity potency. of It emotional would be be- useless, depend any the emotional cause of fact so effect must surrounding general on the often circumstances no provide could formula circumstances. Courts infinite combinations of always agreed
have therefore been general negative no that in fixed can be made; rules no circumstance can to be said beforehand without the be power exciting given general, of emotion; that,
512
any by may possibility fact can be con- be offered which tending ceived as with towards the emotion in others ** * question. upon to called rule “Nevertheless, are often courts upon admissibility is of It circumstances. various reproach majority their calls. of these heed the slightest rulings There is in most of reason for the no propriety extreme doubt of the evidence. vagaries many desperate pugnacity of those have who of criminals take on defence themselves silently ig- ought questions raised have be.en by much tend the courts—a which would nored treatment lightening discouragement of crime profession’s precedents. burden criminality circumstances involved
“The of the ground proof no been the of the motive has doubt often §94) being objection, (ante, invoked character-rule already (ante, §216) But it been seen exclusion. has offered also the fact that the circumstance involves charged defendant in itself no another crime objection, present circumstance relevant if the for the (2d ed.) Wigmore purpose.” §389. 1, on Evidence vol. error to refuse defendants’ tend was not limiting the of the Cot instruction No. evidence ered charge proof robbery to of Ranch tonwood charge conspiracy conspiracy. no Had there been might shown been one been to have nevertheless assault kill and to commit formed competent charge conspiracy on therefore such a might jury on kill and considered of assault charge. People, 300Pac. Pac. 8, 575, 89 Colo. we said: In Kolkman v. Wyk People, 99 1, the de Colo. “In Van charged of murder, crime and the fendants conspiracy, law instructed the trial court Upon question, assigned this error. was in this disposing court said: page contention, this charged *13 were not with the defendants true that is ‘It together conspired to kill and having confederated and against jointly and informed mnrder, but entirely charge charged it was Under this murder. conspiracy proper on the the defendants show the the acts declarations offense, to commit design conspirator common in furtherance of one the * * ’ against *. defendants; were admissible the both charge necessary “It an information should is not conspiracy although charged, conspiracy, no if it but appear a concerted be- that there action is made of one tween the are codefendants, acts declarations against the J. 647. admissible other. O. “ ‘While the commission of to which a con- the crime spiracy many accomplish- inwill the relates cases mark consequent object ment its termination, its so as subsequent evidence of exclude acts or declarations conspirator against necessarily another, one this is not conspiracy may pur- the continue for true, various * * * poses, pro- for instance division of such effecting esсape, the concealment an ceeds, crime, tending to the concealment of evidence incriminate the conspirators, procuring to leave state, witnesses * * * case, where this acts declara- conspirator against one are tions admissible conspiracy others, continued, while al- where made though after actual commission crime’.” 16 C. seq.” J. 661, et foregoing
From the clear that while charge conspiracy was admissible on the which de- sought limit fendants it, admissible on charge very of assault kill for that reason and to have jury, advised did, tendered instruction such evidence considered could in de- Stephens, termining guilt no because similarity alleged between theft of and the safe clearly of assault crime would been kill, erron- eous. assigned
Error is refusal of the court *14 514
give tendered No. instruction 13 which informed jury that a conviction on circumstantial evidence was alone only when proper relied upon the circumstances were consistent guilt with with inconsistent reason able hypothesis of innocence. think it would have We been proper give instruction; this failure however, give amounted to nondirection not mis merely and direction. 451, 146 762, In Beeler People, v. 58 Pac. Colo. an instruction and we held this point given covering it was statement of the law correct substantially and the To the same affirmed. effect judgment was holding, court’s similar where instruction was given in Van v.Wyk People, 45 Colo. 99 at Pac. 1009. Our tention called is not to case in which an such instruction was tendered but, and refused though cited on another proposition we of relating conspiracy, find the case Solander People, charge Colo. effected an manslaughter attempted abortion, Mr. Hallett said: Chief Justice “The instruction asked as to weight circumstantial given be evidence was correct principle, form and might have been given with But it relates as propriety. simply of weight evidence, jury correctly and the advised as doctrine reasonable the refusal doubt, cannot trial.” instruction be new ground record case The shows the tendered instruc- tion follows: if the “That, was as proof guilt her rests on circumstantial unless evidence, the circumstances in the produce, as minds the jury, moral of her certainty guilt, and such a nature not tо be on the supposition accounted for her inno- reasonably cence, with the perfectly supposition reconcilable not to ought convict the guilt, they her prisoner.” in the bar, The case at as in the Solander case, given in an instruction a conviction were told might if they were of the satisfied only be had defendant’s guilt a reasonable doubt. tendered beyond instruction matter concerned only each case to be weight given such and as such matters as inconsis- testimony in the tencies both circumstantial direct and exception fully are almost without to the attention called jury by argument of counsel we think non- ground direction such matter is to set aside a ver- appears dict, here, that the where, from record upon prosecution relied are con- circumstances theory guilt. hypothesis sistent Whether the *15 any jury. of innocence is a the reasonable one In is might case given, in which an such instruction it be would proper only be under circumstances in which reasonable might men arrive different conclusions as whether hypothesis only the of innocence one, reasоnable proper such case would submit be the case to jury the at all. We think there sufficient evidence jury authorize a submission of case to this and that the weight the mere nondirection on the does evidence require a reversal. Finally we think it was not error admit testimony the of Childers as to conversations with the defendants after the consummation of the assault. by acting are not Crimes committed either an individual cooperation expectation alone or in with others with the of assuming responsibility paying for the unlawful act penalty. might suspected Least all of that a a be crime objective committed two or more as of very conspiracy premedita in its nature involves original conspiracy tion does not involve any give conspiracy or in event often to a rise new consequences. Apropos avoid its of such a situation this People, supra, quoted following court Kolkman v. “ approval: design ‘The common of a criminal enterprise may appellant however, extend, concedes, beyond point constituting of the commission act alleged conspirator crime for which the on trial. * * * The inference reasonable drawn from the foregoing subsequent all of these acts were consummated in the execution scheme evade
arrest and escape under the punishment, and, therefore, rule trial cited, justified, authorities court was we think, the evidence in order receiving determine might not the original conspiracy whether or if extended included up and, scheme to escape, so, whether the under an act registering Broses People assumed thereof.’ pursuance name was Lorraine, 90 Pac. Cal. 897.” App. 317, 327,
Whether case extended original conspiracy this so far as escape to include continued cooperation penalty whether new to effect end conspiracy was formed we think be established the acts may parties subsequent of the crime accomplishment direct original conspiracy, objective and their even admissions, denials, what sub- did sequently competent are when they tend to prove cooperation. Clyde continued Smal- Evidence done went to Pueblo, leaving about the time alleged commission of the crime; Stephens was in his room with two witnesses—from past relationship present could friendly—who alibi as to clearly him personal *16 the in that he participation act; a overt was expecting call Clyde concerning—as from Smaldone claimed— the of and a call sale ice received such as he an box claims who Eugene from Smaldone was as at identified being of the actual within the the unlike- hour; scene the assault Eugene of lihood concerning himself with matter such immediately failing after out successfully carry crime of the immediate moment, two of conference of three defendants after the telephone call, the the denial Clyde of ice box deal been after- any discussed the by noon claimed by Eugene before as and Smal- ; repudiated done the inconsistencies and statements all conversation; the by tending made same in concert an concerning alleged action legitimate show competent deal for the consider on the ques- was of deal alleged legitimate tion whether was or the fact conspiracy whether continued con- purpose of participation eealing each of the defendants in the of conspiracy assault furtherance kill and the thereof. original comprehended escape conspiracy from If such cooperation penalty was end, to effect still and continuing when the statements unconsummated, and the well under made, which Childers testified conspiracy recognized that after the is formed rule during conspirators of one of acts declarations against its mony the testi- all, consummation are admissible properly admitted. Section of Childers was (16th ed.), relating Greenleaf volume Evidence coconspirators is follows: and acts of as declarations principle of “The on which acts declarations conspirators, are times, other done different acts against prosecuted, persons is, admitted in evidence conspirators conspiring together, by the that, act of body, jointly as attri- themselves, assumed regards prosecution individuality, so far as bute of rendering design; done whatever is of the common thus design, by or one furtherance said gestae, the act all. res and therefore governs principle identity each other that same regard agents offered when and admissions acts against partners, principals, their against already partnership-, con- been has the evidence sidered. here, also, cases, And in those conspirators of what other must was said and done and done made limited declarations to their acts and conspiracy pending, in furtherance while the the design; them before what said or done principle of admissi- within afterwards ’ ’ bility. opinion the evidence sufficient We are all of to authorize a submission as to the defendants *17 trial is that error on no cause and granting of a new which would shown trial. necessitate Accordingly judgment affirmed.
Mr. Burke, Mr. and Mr. Bakke Chief Justice Justice Justice Knous concur.
Mr. Justice E. and Mr. Hilliard Francis Justice Bouok dissent.
Mr. not Justice Holland participating*.
Mr. Justice Hilliard dissenting. years appears that for both Barnes, several
prosecuting* Stephens, plaintiffs witness, and one of the professional operating gamblers; have been error, that jointly, separately, at times times at other and still conjunction other а times conducted with others, gambling place Douglas county, Inn; Blakeland called plaintiffs in error other- that never interested Smaldones, employed to time; that wise, from time place June, 1936, decree, closed court district Stephens enjoined Barnes, and another were from subsequent conducting gambling Douglas county; oper- open notwithstanding, thereto, and Barnes did place gambling county, ate in the called Cotton- same Club; wood that November was testified here, 9, 1936, charge pre- but in relation to formal which no was ever contents, ferred, club was robbed a safe Stephens, par- $1,600, and Smaldones, ticipated following alleged robbery; rob- in the bery place; December authorities closed the Stephens reopening* suggested Stephens Barnes called inquired ob- Cottonwood whether would ject; willing- evinced testified, Barnes that, provided given ness end, to that he were “cut” one- regarded great third, Barnes share, as too willing yield, being that neither one-fifth; offered open he Barnes stated his own would Cottonwood on Stephens replied, to which testified, as Barnes account, if he did not live a week, would version join that Barnes invited him with Barnes and *18 go reopening- of us Cottonwood, in “the three another part ways,” in it that declined to have in three he but injunctive to refrain from order because he was under gambling Douglas county, denied that made in against occurred that Barnes; 8, threats December 1936, grew. prosecution Barnes the incident out which this reopened had not Cottonwood. appear June, from
On that hand, the other does not injunetively Decem- 1936, closed, when Blakeland was injury relation- Barnes, ber date 8,1936', ship Stephens Smal- whatever and the existed between directly they or that in communication dones, were indirectly. prior to December no There was evidence Steph- at Barnes called when his own instance 4,1936, reopening ens to their relations Cottonwood, discuss friendly. ever other than my point that the trial
The first that claims attention is robbery alleged testimony admitting court of the erred remembered at Cottonwood Club. It is to be charged against the here with to do “Offenses crime has chapter person,” article 4, 2 ’35 A. sections 48, C. S. Club involved in Cottonwood 30-80, while the crimе statutory theft “Offenses comes within the definition. ” relating chapter property. article 6, 2 ’35 C. S. A. severally §§84-112. Plaintiffs in error subdivision upon objected from assurance evidence, but they prosecutor shown would robbery—indicative court motive, said—the objection, that if the overruled but remarked evidence would be indicate, disclose that it stricken. so did engaged testify did Smaldones One witness robbery, evidence was no any way court affair. Indeed, with connected opinion prosecution says connect “failed” to here object- robbery In addition incident. plaintiffs error ing- instance, first evidence people’s con- case, well as at the close clusion testimony, moved each his counsel, all for an instruc- offending strike the claimed Likewise, empha- it. disregard tion to instructions. The requested their contention by sized court adversely. ruled charge
I tried error. was grave think there different inherently are *19 only robbery, and the claimed are so the say, decisions crimes, as independent ‘‘ that evidence rule is statute. catalogued by general Cargill not admissible.” independent crimes is of other Peoрle, In Jaynes v. 214 Pac. v. 218, 387. People, 73 Colo. cited 325, 44 99 Pac. 16 Ann. Cas. 787, 535, Colo. reason “The case, that, in we Cargill the said approval of an convicted no shall be rule that person is another. Evidence is by guilty he proving offense that “tends emphasized, we further character,” against of the jury create a in the minds prejudice mis confuse and accused; issues, may multiplies lead v. See, also, 43 jury.” Colo. People, Warford v. 107, People, Webb 556; 96 Pac. Colo. 49 262, 97 P. (2d) People, 381; 99 (2d) 223; Colo. 60 P. 80, Munfrada People, Smith v. It (2d) Colo. 67 P. 498. is that the asserted was admissible to prove motive ‘‘ ’’ and intent of by in plaintiffs error, since, urged attorney “it in established this case that general, is motive intent to monopolize of these defendants was ’’ in gambling racket Denver. The vice and around that contention that of the kind was established. nothing true that There was no to that testimony effect. at plaintiffs in error do with had to gambling Barnes men, but only Blakeland—the Smaldones as employed that in after establishment was closed court order in June, plaintiffs show nothing appears them, or error, any engaged engage or attempted en any gambling*. Stephens рersonally form no evidence that he from and there was joined gambling did in violation of decree. He not set did anything himself or in conjunc- establishment up gambling with, Douglas county tion others or nor elsewhere, did aught prevent engaging any from do others ac- tivity of As to Smaldones, nature. noth- oper- ing they any place, indicate time or were ating gamblers, or assumed to had, have, power thought have, of control field. Assuming robbery there was at Cottonwood—Barnes gambling Smaldones establishment—and attempted it, neither of which established or agree— judicial inquiry (all to be formal established even this court—that shown to was not purpose gain it), been involved other what than directly immediately and the result of attained, robbery, considered, the record could have motivated By testimony all books, Smaldones? was not competent attempt to establish for a motive homicidal Reception testimony, thereafter. month as well as disposition point only court’s thereafter, *20 “prejudice jury served create a in the minds of the ’’ against particular, Steph- accused, the the Smaldones in generally. ens favоring As to the latter there is additional the (although,
fact that it not now is claimed opinion, prosecutor hoped stated in the court the to es- it) cognizant tablish he in, or condoned of, alleged robbery. appellate the “In all the courts, at the present says day,” Supreme Washington, of the Court separ- guilty been of a “evidence that defendant has being- ate distinct crime from for which ishe purpose aiding when tried, offered for the convic- tion of the held defendant, is and reversible inadmissible, proper objections. error when admitted over ‘‘ The rule is founded reason. defendant comes prepared only to the trial the crime with which meet things, he be is cannot accused, he from nature of prepared against may defend other crimes against charged policy him. Moreover, not it is by showing to convict law a man one crime he * * * time, its has, been another. guilty some jury inevitable prejudice effect minds crime of the him, guilty them him against causing find would not evidence charged on evidence, doubtful another violates, also, a conviction. produce otherwise namely, jurisprudenсe, criminal rule well-settled character defendant to attack the state permits in issue.” character put his he does himself when Ias Clearly, 1023. Eder, 36 Wash. Pac. v. State clear court made should conceive, Its considered. not to be evidence offending diligent invoked end exhaustively to that power counsel. and capable
I rule, am of the “as exceptions not unmindful offense prove of another tends where the evidence the accused is some for which element of one which it is for acts tried, or the motive committing on trial, for which claimed constitute the offense in connection with offenses, as where independent such are committed tried, is being the one for which he intends to which he purpose accused some particular for supra, such Jaynes People, v. “When accomplish.” limit then received trial should testimony judge * * * These which it is admitted. purpose fact, precautions observed, should be because above tends create a indicated, the minds Id. prejudice See, also, the jury.” supra. People, evi general rule, “As Warford dence other аdmitted to in criminal cases is crimes in strengthen establish or some element or particular gredient of the which the tried, accused is being crime *21 case it trial court duty and such of the to instruct is to to consider the evidence as the extraneous jury it crime, for the which was only particular purpose received even so, cases it is some decided no though be on the accused for request part there no is taken instruction, exception at the trial give p. to it.” to omission or refusal 62 R. L. A. 357. concerning the incident, Cottonwood Club Evidence ob- every stage proceedings, jected permitted was go precisely jury it if were to guilt as direct evidence of charged. regard I the crime
of defendants cannot seriously adopted procedure prejudicial. than other as through deposition developed or otherwise, On facts by prosecution appeared trial, before there would of the Cottonwood Club and that the incident, be evidence Stephens, not in it; had that there Smaldones, but Eugene would be evidence Smaldone was loiter seen shortly ing automobile about Barnes before ex plosion injured Clyde him; while as to Smaldone there no such Based would be evidence. Clyde thereon, ade Smaldone, motions quate individually sep sought and form, substance arate trials suffered I think denial, admission incompetent robbery, evidence Club Cottonwood Stephens, prejudicial was and that as is the him, People, Kolkman test. 300 Pac. Colo. 575. Like Eugene wise of what Smaldone was doing explosion. just prejudicial before Clyde Stephens. think Smaldone and I there should have order been each the movants. severance attorney’s closing In argument the district he said: “They against there no said evidence here these point you against defendants. I out the case [O’Hara defendant O’Hara included in the informa tion] a directed dismissed verdict the court. If prima not facie been case made as to these ’’ other defendants not here. would be coun One objected quoted sel for district defendants remarks attorney, saying: your please, “If Honor I dis very interrupt argument, like much counsel in his highly prejudicial remark I ask ’’ disregard it. The court: “If instructed to there was probably prima not сase, facie would be submitted *22 524 im comment highly the
to The jury.” prosecutor’s admonished I and the should have court proper, think, court its suggested to that the Instead, the effect. jury the by as said language, and, in unmistakable approval Carolina, suffering North Supreme “By Court of of weight to Honor added jury consider his to it, thereby be misled.” his them suffered authority, Freeman, There State v. Law) 49 5. (IV N. C. Jones’ when trial to a jury never a in a criminal comes time The guilty. the accused is may court say jury, to the not fact) per expression “prima facie” (presumptive tinent in the conclusion such trial. Where at in Smith people’s against case Jones prosecution for a court guilty, each verdict of moves directed not deny Smith, Jones’ that of may grant motion estimate may then, or intimate its jury ever, stage evidence any probative force in in If the situa its Smith. presentation, application I tion still have instanced no evidence, Smith offered In cir jury. issue would for the entire have been I neither venture to the conrt would suggest, cumstances, allowing be in itself, for nor be sustained permitted say at the of the close behalf, its prosecutor say estab case the of the accused been people’s guilt con thought It will make clarity keep lished. stantly defense, in a criminal trial. in view issue not incumbent “Not “It ever, Guilty.” always and late a criminal said our case,” the defendant upon his own “either Campbell, Justice distinguished Chief both people, combined, prove that of or evidence It is sufficient jury. to the satisfaction of anything * * * case, defendant, any if the in the minds reasonable doubt raising succeeds essential truth element People, v. 33 Colo. Zipperian made him.” charge against v. People, McBride 60 Colo. also, 1018. 134, See, 79 Pac. “error been held Pac. 751. has 435, 153 the court be effect state attorney prosecuting guilty.” §2257. In 908, lieves C. J. Paul defendant case, essentially in State, 99 Ark. 139 S. W. argument point, prosecuting attorney closing *23 jury enough to said: “If there not convict * * per the defendant not *, the court would have go you jury, mitted case to to warrants and this convicting Objection to him.” statement this request overruled, as was withdraw the court argument opinion jury. from the The author of ‘‘ commenting Attorney matter said: this General The case this and we think his confession error, confesses- insufficiency of error is well taken, on the evi both argument dence to sustain the verdict and as says: counsel. As latter he ‘In this case court prosecuting attorney allowed the court to state that the thought guilty, and that would warrant defendant convicting. refusing The court, interfere, approved attorney. prosecuting indorsed statement court
The should in no manner intimate what opinion its and if so it -facts is it errs. does- The ’ prejudicial, Attorney error is calls for reversal. The Kentucky General is correct in statement.” The ‘‘ appeals, reviewing parallel Court of record, said: The. argument attorney commonwealth further stated inasmuch court as the had sustained motion of peremptory F. M. Ashcraft instruction, for a had overruled the same P. -E. Ashcraft, he, the thought evidently guilty. court, had defendant The objected defendant to this statement. The court over objection. ruled the think this We error. Whatever opinion may applicant’s guilt the court have proper imparted innocence, was not been jury, proper to-the course was not and, the Com attorney permitted monwealth tо state the have.-been properly-not fact. could affect either fact of de guilt jury’s duty fendant’s nor the to themelsves to de Ky. Commonwealth, it.” 24 termine Ashcraft . S. 847 W. fair in error did not bave a
My belief is plaintiffs trial. have no other reviewing minister I justice As concern. E. Bouck concurs in
Mr. Justice this opinion. Fbancis opinion dissenting was filed March 1939. following dissenting. Mr. Justice Bock
I denial of concur in tbe deeply regret my inability Tbe administration of justice, herein. rehearing A court its necessity, reviewing must impersonal. only persons concerned with immediate rulings is a correct declaration tbe but, so, more affected Tbe or innocence of de- legal guilt involved. principles tbe under province jury, proper tbe solely fendants covering on the rulings evidence and correct instructions *24 immediate individuals involved applicable. law Tbe tbe our is of tbe crime but concern may guilty charged, tbe law more we establish as and proper than that. What and evidence extends to similar admissible this case fore- it is humanly impossible cases. In fact, future pronouncement tell what legal effect tbe erroneous in tbe fu- principles may upon liberties of men expected legal prin- Trial courts are tbe apply ture. or which announce ciples, approve, subsequent we trials We are not concerned involving similar issues. technical which a court errors, with mere reviewing here con- we may are disregard nonprejudicial, to a fair trial. right cerned with a fundamental states, our II, article state Constitution Section tbe shall bave accused prosecutions “That criminal * ** to demand nature and tbe cause right tbe ’’ trial, means and course, tbe before That, accusation. “nature and cause of words, it tbe is be inferred on which tbe defend- relate to tbe tbe crime accusation” Fehringer People, 59 and no other. tried, ant will be 361. 147 Pac. 9,3, Colo. other one try on than tbe any offense
To tbe accused charged jurisprudence, a under American fair not, applied trial. with this statement, Consistent proof charged, than other have the offenses those we prosecution general that, universal for a “On rule particular or crime, evidence which manner shows tends to show accused has committed another crime wholly independent on even he is trial, of that though it sort, crime of the irrelevant same proof The accusation inadmissible. of an rule extends to to evidence of actual another as well as its crime, ” excep- commission. are, however, 586-7. There C. J. designed to instance, tions to prove rule, evidence as, system plan motive and or a intent, malice, criminal action. charged
The information here with defendants, first, one the substantive crime of assault on Leo with Barnes, con- second, intent kill him; murder spired to and each to kill other murder Leo Barnes. people, repeated objections by over counsel for showing burglary
defendants, com- introduced evidence Douglas county, mitted Inn Cottonwood Colorado, on November 1936. No evidence was introduced con- necting burglary. defendant with this His alleged complicity charged first in the offenses days prior attempt date 4, 1936, December four kill Barnes. There evidence that the other defend- participated burglary, ants cerning but the con- clearly although him, inadmissible as was admissible show motive *25 of Smal- donеs. “Evidence which or tends to show the shows commis- * * *
sion other offenses accused should be carefully Jaynes restricted.” 16 J. 587. C. We said People, 99 Pac. Colo. 325: “When such 535, 544, testimony judge the trial is then it received should limit purpose Perhaps to the for which it is admitted. we have never that failure limit determined to so it when not error, defendant reversible we
requested by supra v. The People, [43 intimated Warford that trial 107], pursued by Colo. this course should be courts.” de- counsel
Although repeatedly requested by no time this fendants, concerning- was evidence to the it limited for which was ostens- burglary purpose it stated that ibly admitted. The at one trial court time directions about the effects was going- give “not until or all testimony applies about whom this testimony “if later, in.” testimony is And on instructed properly connected will be up, jury failed do. that.” although requested, the court, This jury Nor instruct court, although requested, did concerned, so far as the defendant entirely disregarded. should evidence burglary At no error grevious highly prejudicial. This was or advise time trial court did the instruct testimony concerning purpose effect burglary. opinion since majority imply Steph-
The seems ens the other in an participated illegal defendants from the com- project gambling, demanded plaining illicit witness Barnes cuts gains, evidence as also burglary admissible against was if him, illegal light throw on his motives or actions on of his codefendants those crimes committing’ the charged. fallacy there is, this position first, no evidence of in any illegal participation gambling- Cotton- projects by Stephens, either at time of Inn time the commission burglary wood or at crimes December between charged dates; was, those second, assuming- than proof charged, offense the one another simply which the trial have restricted properly court should it failed Under its but which do. purposes effect, known testimony no rules of previously *26 charges under the admissible burglary involved. circumstances here the facts errors, prejudicial record other shows dissenting his Justice by the Chief made reference is case. disposition the original opinion announced needless. Repetition is granted. should he rehearing opinion
I am and Mr. Justice Francis Mr. Hilliard Justice Chiee this dissent. concur in E. Bouck 14,481. No.
Estate Stitzer. Executor Stitzer.
Peterson, 745) (87 [2d] P. 6, 1939. January Rehearing 1939. denied March Decided