Barr v. People

• Citation: 30 Colo. 522,71 P. 392
• Parties: BARR v. PEOPLE.
• Decision Date: 12 January 1903
• Court: Supreme Court of Colorado

71 P. 392

30 Colo. 522

BARR v. PEOPLE.

Supreme Court of Colorado

January 12, 1903

Error to district court, Arapahoe county.

John K Barr was convicted of robbery, and brings error. Affirmed.

N. Q. Tanquary, George W. Taylor, and Charles Roach, for plaintiff in error.

C. C Post, Atty. Gen., Caesar A. Roberts, James D. Merwin, and George C. Post, Asst. Attys. Gen., for the People.

STEELE J.

An information verified by the affidavit of Hamilton Armstrong was filed by the district attorney of the Second judicial district charging John K. Barr, Joseph Haenalt, and John Doe with the crime of robbery. The defendant Barr was tried and convicted. He brings this case here by writ of error, and asks for the reversal of the judgment of conviction for the several reasons which we shall consider in the course of the opinion.

We shall consider those assignments of error only to which our attention is directed in the brief. The information is attacked because the affidavit accompanying it is not verified by one who had personal knowledge of the commission of the offense. The affiant states that 'he has personal knowledge that the offense was committed, and that he is a competent witness to testify in said case.' Upon the trial it was shown that the affiant did not have personal knowledge that the offense was committed, and that the only knowledge he had of the commission of the offense was that gained from the report of others. It was held in Holt v People, 23 Colo. 1, 45 P. 374, that, when an affidavit is made as the basis of an information in conformity with the requirements of the statute, it is not in the power of the accused to attack, by counter affidavit or otherwise, the truth of its material statements. The court in that case, speaking of the right of an accused to attack an information for the reason that the affidavit accompanying it was not true, said, 'Certainly no authority for such practice is found in the statute, and, in our opinion, ought not to be tolerated.' The objection that the information was not verified by an eyewitness of the commission of the offense must be overruled.

The third, fourth, fifth, and sixth subdivisions of the brief relate to the reception of the testimony of Haenalt and the rejection of the testimony of J. C. Fitnam. Before the witness Haenalt took the stand, he was informed by the court that he could not be compelled to give any testimony of an incriminating nature against himself. After a few preliminary questions by the district attorney, a nolle pros. was entered, and the witness was examined at length. The defendant objected to the witness being examined, and the objections were overruled, but no objection was made by the witness himself, nor by his counsel. At the beginning of the trial defendant, Barr, demanded that all the witnesses be excluded from the courtroom. At this time Haenalt was sworn as a witness, and counsel notified the court that Haenalt objected to giving testimony, and that he would raise proper objections when the witness was called upon to testify; but when Haenalt took the stand the record fails to show any objection by the witness or his counsel, and it is well settled in this state that the privilege of not testifying to facts which tend to criminate is a privilege of the witness alone (Lothrop v. Roberts, 16 Colo. 250, 27 P. 698; Bradford v. People, 22 Colo. 157, 43 P. 1013), and the defendant would not have been permitted to assign error, even if the court had refused to inform Haenalt that he could decline to answer questions if such answers would tend to criminate him. Bolen v. People, 184 Ill. 338, 56 N.E. 408. The defendant, Barr, having been granted a separate trial, it was not error to permit Haenalt to testify. The objection of the defendant that Haenalt had been jointly accused and charged with the same offense in the same information with the defendant Barr, and that said cause had not been disposed of, was properly overruled. Whart. Cr. Ev. § 439.

Many objections were made to the competency of the witness Haenalt. We shall not consider these objections, for the reason that, if we were to assume that error had been committed by the court in permitting the witness to testify, the testimony was favorable to the defendant, and completely exonerated him from participation in the commission of the offense, and the defendant is not in a position to complain.

Counsel assert that the court should not have permitted Haenalt to testify, because it appeared that he had been offered his liberty in consideration of giving his testimony. Assuming that Haenalt had been offered his liberty by the district attorney, that fact would not make Haenalt an incompetent witness. It would affect his credibility.

The defendant offered to show by the witness J. C. Fitnam that he was present at a conversation between the district attorney and Haenalt at which time the district attorney told Haenalt that, 'if he would testify a certain way, he would be given his liberty, and, if he didn't testify a certain way, he would send him to the pen.' Upon objection this offer was refused, and the defendant assigns error upon this refusal of the court. The testimony offered was clearly incompetent and irrelevant, and was correctly refused.

The defendant complains that a pistol, which was not properly identified, was received in evidence over his objection. The objection was properly overruled. The witness Conway testified that he borrowed a pistol similar to the one shown him at the trial from a person named Husk, and gave it to Barr, and that Barr told him that he had returned it. Husk, when shown the pistol, said he believed it was his, and the one he told Conway to let Barr have. The testimony of these witnesses, in connection with the testimony that a pistol was used in the commission of the robbery, was, in our opinion, sufficient to identify the pistol for the purpose of being used as an exhibit.

The court refused 23 instructions offered by the defendant. It is contended that the court ignored the request of counsel and failed to charge the jury upon the following: (1) The probability of guilt; (2) the proof of identity; (3) promises and rewards to accomplice; (4) caution as to evidence of accomplice; (5) corroboration of accomplice; (6) presumption as to character of defendant, Barr. The court correctly charged the jury upon the subjects of the presumption of innocence, reasonable doubt, and circumstantial evidence. In instructions numbered 5, 6, and 9 the court informed the jurors, in substance, that the defendant was presumed to be innocent of the charge against him, and that the presumption continued and prevailed until they were satisfied beyond a reasonable doubt of the defendant's guilt, and that, in order to convict the defendant upon circumstantial evidence alone, the circumstances must not only concur to show that the defendant committed the crime, but that they must exclude to a moral certainty every reasonable hypothesis except that of guilt. So that the court gave, in effect, the instructions requested by the defendant upon the subjects of probability, identity, and character. The instructions requested by the defendant concerning accomplices were, we think, properly refused. They are, perhaps, proper instructions to be given in cases where an accomplice testifies for the people, and in his testimony implicates a defendant; but in a case where no testimony is given by one who admits guilt and also accuses the defendant, the defendant is...