Ausmus v. People

• Decision Date: 06 July 1909
• Parties: AUSMUS et al. v. PEOPLE.
• Court: Colorado Supreme Court

107 P. 204

47 Colo. 167

AUSMUS et al. v. PEOPLE.

Supreme Court of Colorado, En Banc.

July 6, 1909

On Petition for Rehearing, February 7, 1910.

Error to District Court, Morgan County; H. P. Burke, Judge.

John Ausmus and Zara Moon were convicted of murder in the first degree, and they bring error. Affirmed on rehearing.

Rehearing denied; GABBERT and BAILEY, JJ., dissenting.

M. M. House and Ralph Talbot, for plaintiffs in error.

William H. Dickson and J. T. Barnett, Attys. Gen., and George D Talbot and S. H. Thompson, Jr., Asst. Attys. Gen., for the People.

WHITE J.

From the year 1899 to April, 1904, a man known as Robert B McDowell lived in Morgan county, Colo. He was about 45 years of age, approximately 6 feet tall, had brown hair, a protruding forehead, prominent cheek bones, stooped a little and was either bow-legged or had a bow-legged appearance. He carried a pocketknife described by the witnesses; also carried about his person a trunk key fastened to a leather strap of a certain size attached to the waistband of his pants; owned a certain kind of door key to the lock on the door of his house; was in the habit of tying his shoes with a peculiar bowknot, and wore a No. 8 or 9 shoe; was unmarried, and for most of the time resided at his ranch on the Wild Cat creek, some 8 or 10 miles from Ft. Morgan, where he had filed upon 160 acres of land as a homestead, and had made improvements on 640 acres of school land leased from the state, where he ran horses and cattle, and had accumulated some other property. He was illiterate, could neither read nor write, and of his history prior to 1893, when he lived in Las Animas county, this state, nothing of certainty is disclosed by the record, though it appears he came from Texas. During the month of April, 1904, McDowell disappeared. Prior to and immediately preceding said date plaintiffs in error were upon and about the McDowell ranch, and on the 26th of that month John Ausmus, one of the plaintiffs in error, under a power of attorney, or pretended power of attorney, dated April 14th and signed with McDowell's name by two XX's, and witnessed by the other plaintiff in error, Zara Moon, sold and delivered of McDowell's property 140 head of cattle and 26 horses to Munn & Raugh for $1,440, being considerably less than their real value. Ausmus explained to Raugh that McDowell had to get out of the country and was then in hiding, which was the reason that he, Ausmus, was to sell his cattle. Munn suggested the giving of a draft payable to McDowell for the purchase price of said property. Ausmus objected to such means of payment, insisting on the cash, stating that McDowell was hiding out, and wanted to get out of the country, and needed the cash. Munn then wrote out a bill of sale with a receipt thereon for the money, and gave the cash to Ausmus, and asked him to have McDowell sign the bill of sale and receipt at the time the money was paid over to him, and return the bill of sale and receipt to Munn. Several days thereafter the bill of sale and receipt were brought back to Munn, purporting to have McDowell's name signed thereto with two XX's to each and witnessed by signatures of both Ausmus and Moon. A little later plaintiffs in error took possession of the premises and improvements and property of McDowell where he had formerly lived, distributing the same between them. The lease to the school land was renewed in the name of Ausmus.

In March, 1904, one Jacob Jochim, a young man about 20 years of age, worked for McDowell, during which time the plaintiffs in error visited the McDowell ranch and remained over night. Ausmus had a camp about one mile south of McDowell's ranch. When Jochim quit work for McDowell about March 28th, the latter was owing him $18 for wages, and arranged to send it to the former at Snyder, Colo., from Ft. Morgan. Not having received the money, about April 15th Jochim visited the McDowell ranch, was unable to find McDowell, but entered the house, and there observed his household property. Subsequently Jochim met Ausmus and informed the latter of his visit to McDowell's ranch to collect the debt, and thereafter Ausmus paid the bill, saying that McDowell had given the money to him with instructions to deliver it to Jochim. McDowell had, however, at Ft. Morgan on the 28th of March purchased a draft for $18 to be sent to Jochim at Snyder through a new cashier of the bank unacquainted with the spelling of the name 'Jochim,' and who had written the name 'Yocum' and mailed the draft inclosed in an envelope so addressed, and the same was in due course of mail returned to the bank, where it remained, but McDowell was not apprised of that fact. It also appeared that McDowell had at the time of his disappearance on deposit to his credit in one of the banks about $85, which remained uncalled for at the date of the trial. Also other accounts due him were never called for.

In the spring of 1905 Jacob Jochim worked for Zara Moon on the McDowell ranch, and discovered some human bones partly exhumed near the McDowell house, in a gulch over which at times the water flowed, and into which the sun intensely shone, and informed Moon of the find. Nothing was done, however, relative to the grave until January, 1907, when Jochim mentioned it to several people, and, being requested so to do, conducted them, including the coroner, to the place where the grave was. Upon digging into the soil at the bottom of the gulch the remains of a man about six feet tall were discovered and exhumed. The soft tissues and the ligaments, tendons, and cartilages of the remains had disappeared, and decay had proceeded so far as to render it impossible for any one to recognize the features, or to identify the bones found in the grave. The skeleton showed a protruding forehead, with prominent cheek bones and small feet, disclosed a bullet hole passing through the skull from the rear in such a manner that it could not have been self-inflicted, and which was the cause of death. There was also discovered with the remains the following: A pocketknife such as McDowell carried during life; a trunk key fastened to a leather strap attached to a cloth band as McDowell had carried his; a door key such as McDowell carried, which, on trial, fitted the lock on the door of his former home; a pair of shoes such as McDowell occasionally wore, the strings of which were tied by a peculiar bowknot such as McDowell used during life.

The plaintiffs in error were young men, ranchmen by occupation, the sons of respectable parents; Ausmus having a young wife whom he had married since the disappearance of McDowell, and Moon being unmarried. Neither had ever been suspected of crime, and both enjoyed splendid reputations as peaceful and law-abiding citizens. Moon, although a resident of Ft. Morgan, in the summer after the disappearance of McDowell opened a bank account with the First National Bank of Brush, a town some distance away, depositing $200 in cash. Ausmus did likewise, depositing $450 in cash and later $250 in checks. Brush was the home town of the latter. The parties purchasing the McDowell property of Ausmus were in the banking business at Brush, but not connected with the bank in which plaintiffs in error opened their respective accounts. The father and family of Moon claimed that Zara had earned this money by herding cattle. The wife of Ausmus explained that during the fall before McDowell's disappearance Ausmus, to whom she was not then married, intrusted to her various sums of money from time to time, aggregating the amount deposited, and that she, though employed in a bank, had not deposited it, but kept it hidden in her room until about the time the money was deposited in the bank at Brush. A witness claimed that early in May, 1904, he had seen a party in the mountains who gave his name as R. B. McDowell, and said he could neither read nor write, and requested witness to write the name in a book, and thereupon made his mark to the signature. This writing was not produced. Other evidence proper to a consideration of this case will be alluded to hereafter.

It was claimed that the body found in the grave was that of McDowell, and that he had been murdered. Suspicion pointed to John Ausmus and Zara Moon as the perpetrators of the crime, and they were arrested, given a preliminary examination before a justice of the peace, and discharged. Thereafter, and without further preliminary examination, a direct information was filed in the district court of Morgan county, under which plaintiffs in error were charged with, tried for, and convicted of the murder of said Robert B. McDowell. The jury found them guilty of the highest degree of the crime, and, the evidence being circumstantial, they were sentenced to the penitentiary for life, where they now are undergoing punishment. To reverse the judgment they prosecute this suit here, and assign numerous errors.

1. It is contended that the court erred in overruling the motion of plaintiffs in error to quash the information for the reason that no affidavit had been filed showing probable cause for their arrest, and because there was no affidavit upon which the information was based; plaintiffs in error having been discharged upon preliminary hearing. To the information was attached the affidavit of William A. Sergeant, to the effect that the facts stated in that instrument were true, and the offense therein charged was committed of his own personal knowledge, and that he was a competent witness to testify in the cause. It likewise had attached thereto an affidavit of James P. Austin to the same effect. Under section 1432b Mills' Ann. St. Rev. Supp., it is required that in all cases in which a preliminary examination has not been had or the accused discharged...