Blass v. People

• Court: Colorado Supreme Court
• Writing for the Court: WHITFORD, J.
• Citation: Blass v. People, 79 Colo. 555, 247 P. 177 (Colo. 1926)
• Decision Date: 01 June 1926
• Docket Number: 11440.
• Parties: BLASS v. PEOPLE.

247 P. 177

79 Colo. 555

BLASS v. PEOPLE.

No. 11440.

Supreme Court of Colorado

June 1, 1926

Department 2.

Error to District Court, Las Animas County; A. F. Hollenbeck Judge.

Frank Blass was convicted of assault with intent to commit murder and he brings error.

Affirmed.

O. H. Dasher, of Trinidad, Lewis De Riggs Mowry of Denver, and Frank H. Hall, of Trinidad, for plaintiff in error.

William L. Boatright, Atty. Gen., and Louis W. Burford, Asst. Atty Gen., for the People.

WHITFORD J.

The plaintiff in error, hereinafter designated as defendant, was convicted in the district court of Las Animas county of an assault with intent to commit murder. He comes here on error to review that judgment.

The contention that the evidence is insufficient to sustain the conviction, and that the court erred in refusing to direct a verdict at the close of the people's case, is without merit.

The principal contention is that the court erred in overruling the motion for a new trial, which was predicated upon newly discovered evidence. The affidavit, bringing into the record the newly discovered evidence, was a recantation made by the prosecution witness, Rocco, who alleged in his affidavit that he had committed perjury in his testimony on the trial, in charging the defendant with the commission of the assault.

Shortly after the date of the assault on one Frank Flynn, Rocco was arrested on three charges of burglary committed in Trinidad and, while he was in the county jail, made a confession of these offenses to the district attorney and sheriff, and at the same time made a confession of being implicated with defendant Blass in making the assault upon Flynn on April 30, 1925. During the trial of Blass, Rocco pleaded guilty to the three charges of burglary and to participating in the assault upon Flynn, and was sentenced to the penitentiary therefor.

Rocco testified, in substance, that Blass offered him $2,000 if he would 'get Flynn'; that on the night of April 30th Blass and Rocco secreted themselves adjacent to the Flynn home; that about midnight Flynn and his wife drove into their garage from the alley and that Blass shot Flynn in the back; that Blass handed Rocco $700 in bills, and promised him $1,300 later, with the warning 'not to say anything or squeal, and to watch his steps,' to which Rocco replied 'I can give you my word * * * I won't squeal on you.' He also testified that Blass did not pay him the additional $1,300, as promised.

After the conviction of Blass and before filing the motion for a new trial, the attorney for Blass visited Rocco in the penitentiary at Canon City, where Rocco made an affidavit, in which the affiant stated that----

'Blass had nothing to do with the shooting of Flynn, and I am the guilty man in shooting Frank Flynn, and I was paid for this job by Mason.' 'I wanted to get leniency if I could tell a lie on the other man.'

A few days thereafter Rocco made a counter affidavit, which was filed by the district attorney, in opposition to the motion for a new trial, which stated:

'That the evidence as given by me as a witness for the state at the trial of Frank Blass in the district court of Trinidad, Colo., was true in every particular. That the later affidavit which I gave regarding it was to keep Frank Blass from coming to the penitentiary, as I feared for my life, because he had threatened my life on several occasions if I 'squawked."

The ground of the motion for a new trial was based entirely upon the recanting affidavit of Rocco, who was the principal witness on behalf of the People.

The question for our determination is whether a recantation by a witness who testined on...