No. 2867 | Utah | Jun 28, 1916
Lead Opinion
The defendant was convicted of attempted robbery and appeals. He says the evidence is not sufficient to justify the conviction. We think the contention well founded.
“Q. You would not undertake to give any opinion as to the features of this blackened man ? A. No, sir. Q. As to the color of his clothes? A. No, sir. Q. And as to whether or not it was this defendant you wouldn’t undertake to make any statement? • A. No, sir.”
On cross-examination he further testified that he saw the man riding the horse on the street, maybe eighty feet away, looked at his face, and had a good side view of him; that he thereafter talked with the defendant, but there was “not a thing” about his voice or appearance to “suggest the thought” that the defendant was the perpetrator.
Another witness testified that “somewhere about three o’clock in the afternoon of the day of the attempted robbery the defendant, riding “a dark grey, or a brown, horse, not very large, ’ ’ stopped at his place, about three miles north and about three miles east of Murray, and asked permission to use the telephone. The defendant had “no black on his face,” and did not appear to be excited or at all disturbed, and ‘ ‘ came in in a very quiet way and asked permission to use my phone. ’ ’
B., a convict serving time for burglary and robbery, but out of prison on parol, the chief witness for the State, testified that he and the defendant, at different times, discussed and planned the robbery, first to be committed on the 17th and later on the 18th of June, the day the assault was made. The day before they purchased a gun in Salt Lake at a pawnshop. All that day until about ten o’clock at night they planned the robbery. They then wqnt to B. ’s home, some distance south and east of Salt Lake City, where the defendant that night slept in B.’s barn. The next morning they came to Salt Lake. The defendant then procured the horse. B.. took a street car from Salt Lake in a direction towards Murray, and left the car a little ways north of Murray. There he waited until the defendant rode up with the horse. They then went east about a mile, where they both blackened their faces. The plan was to commit the robbery at the noon hour. There they parted, the defendant on the horse riding south, and B. later taking a car back to Salt Lake. There, representing himself to be a newspaper reporter as talking, he telephoned the bank for particulars of the robbery. Then he took a car and again went south towards, and east of, and about four miles from, Murray, where the defendant soon rode up
Another witness testified that somewhere around two o ’clock he saw some one — he was not sure whether it was the defendant or not — with B. at B.’s place, about six miles east and north of Murray.- He saw them together but a moment, and did not notice where they went or what they did.
The officer who arrested the defendant testified that the defendant told him that he went out with B. to his place the night before the alleged assault, and there slept in his barn, and that the next morning he, at B. ’s request, came on to Salt Lake to get a horse for B. to use, as B. told him, to go to his father’s place near the river for cattle.
This is the -substance of all the testimony of the state’s witnesses. It is clear enough that the assault was made by but one man with a blackened face on horseback. B. on his direct examination testified that, while he was not present, yet he aided and abetted in the commission of the offense; but when pressed on cross-examination, and pointed to as himself the perpetrator, testified that he tried to dissuade the defendant from committing the offense, and blackened his face and procured the gun only for that purpose, and to prevent him from committing something worse. The only legal effect to be given B. ’s testimony is that he committed the assault or was an accomplice. The most distinguishing feature of the perpetrator was his blackened face. B. testified that his face was blackened. Unless he was the perpetrator, he gave no reason or occasion for blackening his face. He, however, testified that also the defendant’s face was blackened. But that rests, alone on B.’s testimony. No other witness testified to that.. There is no direct evidence whatever to connect the de
“other evidence which in itself, and without the aid of the testimony of the accomplice, tends to connect the defendant with the commission of the offense.”
Eliminating for this purpose the testimony of the accomplice, and pointing alone- to these circumstances, they but show that the perpetrator, at one o ’clock, rode up to and away from the bank on a dark grey or brown horse, and that the defendant, six miles away, about three o’clock, was seen riding a dark grey or brown horse hired by him at nine o ’clock, but do not show that the defendant was that man, or even that the horse ridden by him at three o’clock was the same horse seen at the bank at one o’clock. The description which the witness at the bank gave of the horse there seen by him was a very general, and not a specific,, description, and one equally fitting a hundred or more horses. The witness did not say that the horse ridden by the defendant was the same horse, or in his judgment, was the same, as was seen by him ' at the bank, or that the one was like, or in appearance similar to, the other. Nor did the witness undertake to say that in apparent height or weight, or in any other particular, the defendant, in any manner, resembled the perpetrator. If anything, the witness rather negatived that. It may be said that
Concurrence Opinion
.At the hearing I was of the opinion that upon the whole evidence the jury had a right to infer that the defendant was connected with the commission of the charged offense apart from the testimony of his accomplice. I am, however, in doubt as to that, and I therefore yield to the judgment of my Associates.