Bowland v. People

Decision Date19 August 1957
Docket NumberNo. 18271,18271
Citation136 Colo. 57,314 P.2d 685
PartiesJames BOWLAND, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
CourtColorado Supreme Court

John H. Gately, Colorado Springs, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., John W. Patterson, Asst. Atty. Gen., for defendant in error.

KNAUSS, Justice.

Plaintiff in error, herein referred to as defendant, was convicted of the crime of aggravated robbery and sentenced to the state penitentiary. By writ of error he seeks reversal of the judgment of conviction.

Defendant was one of three defendants in the case. The remaining two, Weaver and Graniger entered pleas of guilty. There days before the trial of the case defendant's counsel moved that said Graniger be made available at the trial, which motion was granted. Later the district attorney endorsed both Weaver and Graniger as witnesses for the People. This endorsement was made by order of court, and consented to by counsel for defendant.

The pertinent facts connected with the crime charged in the information as disclosed by the witnesses for the People show that one Strobridge, assistant manager of a Safeway store near Colorado Springs, in El Paso County, Colorado, arrived at the store about 7:45 A.M. on November 4, 1956 and after unlocking the door and entering the store was accosted by a masked man with a gun in his hand, who came up to Strobridge from inside the store and demanded that he open the chashier's booth and safe, which Strobridge did. The man with the gun put the money in a sack, and after inquiry as to how he might get out of the store without going through the front door, was led to the rear of the store, where he was joined by another man, also masked and also carrying a revolver. They thereupon locked Strobridge in a dairy cooler. The two men, after locking the assistant manager in the dairy cooler, left the premises by the rear door, where they entered an automobile in which a third man was sitting at the wheel, and all three drove rapidly away.

Meanwhile other employees of the store arrived preparatory to performing their duties for the day, and some of them suspecting that all was not well within the store, went to the rear of the premises where they saw the two men emerge from the rear door and enter the car and drive away. Strobridge testified that the two men who held him up being masked, he could not discern their facial characteristics. He described the first man as six feet tall and of slim build, and said he talked with a 'southern accent'; the man at the rear of the store 'as being quite a bit shorter than the first man; more on the stocky side'. On the trial he was asked:

'Q. From the description of the man you observed in the store and from the defendant's physical build, are you able to make a comparison? A. Physical description--size, and so forth, fits very good. However, as I stated before, he was covered from the head to the shoulders so we made no facial identification at all'.

In answer to another inquiry, he said:

'His height and build correspond with the man that held me up'.

Co-defendant Weaver, husband of defendant's sister, testified that he came to Colorado Springs from Vernon, Texas on November 3, 1956, in a car owned by Graniger. Weaver drove the car with defendant in the front seat and Graniger in the rear seat of the automobile. Upon arrival at Colorado Springs 'before midnight' on November 3, 1956, they drove out of town where defendant and Graniger put on additional clothes and drove to a spot back of the Safeway store, where Bowland (defendant) and Graniger got out of the car, instructing Weaver to return to the place between seven and eight o'clock in the morning. This Weaver did, and defendant and Graniger came out of the store, got in the car and all three returned to Vernon, Texas, where they arrived about 10 P.M. on November 4th. Weaver testified that at Perrytown, Texas, Graniger and Bowland got out of the car and threw something away; that while en route 'somebody stuck some money in my pockect over my shoulder' while the car was in motion.

Graniger testified that he, Weaver and defendant came to Colorado Springs on November 3rd; that they came to Colorado Springs to rob a Safeway store; that they went to Safeway store on South Tejon Street; that Bowland and he got out of the car, crossed the creek and entered the store by making a hole in the roof. Graniger said he waited in the rear of the building while defendant was at the front of the store; that following the holdup while he and defendant were going to the car, just before their departure on the return trip to Vernon, Texas, someone called to them and asked: 'Where we were going or where Strobridge was' and Graniger replied he would be out in a minute. This testimony was corroborated by Catherine Weber and John J. Cannella (the man who made the inquiry), both employees of the Safeway store.

Graniger further testified that as he got in the escape car he looked back and a young man who worked in the store was running up to the car 'and then he proceeded to take my license, and we left'. A deputy sheriff of El Paso County had the license number of the car.

The remainder of his testimony corroborated that of Weaver.

While en route to Colorado Springs from Texas both Weaver and Graniger testified that a short distance west of Lamar, Colorado they were stopped by a traffic officer and given a traffic violation ticket by the witness Rosenbaugh, who testified that he had given a ticked to Weaver near Lamar on November 3, 1956; that the car was owned by Graniger and driven by Weaver and that a third man was in the automobile. He further testified that the defendant 'looks just about like' the third man who was in the car.

After the return of defendants, Weaver and Graniger to Colorado Springs, following their apprehension in Vernon, Texas, Graniger reenacted the crime in company with law enforcement officials, and recovered some of the tools used in gaining admission to the building. These had been hidden in the store and were disclosed to the officers by Graniger.

The defense offered was that of an alibi. Defendant's testimony in support of his alibi was corroborated by Marie Mundt, his twenty-year old girl friend; Audrey Bowland, his brother, and Charles Thomas McKinney from Vernon, Texas, who had known defendant some three months.

After defendant testified that he was not in the state of Colorado on either the third or fourth of November, 1956, on cross-examination he was asked: 'Have you ever been convicted of a felony?' His counsel then said: 'I will object, if your Honor please'. The objection was overruled and defendant replied that he had been convicted of a felony, to-wit robbery in California; that he was on parole, which would expire May 28th or May 29th, 1957.

It is urged for reversal that (1) the trial court should have directed a verdict of not guilty because Weaver and Graniger were accomplices and their testimony was not corroborated. (2) That it was error to allow the People to show defendant's prior conviction of a felony. (3) That the trial court erred in adding the names of the codefendants Weaver and Graniger as witnesses. Following the trial, and in support of defendant's motion for a new trial, an affidavit signed by Graniger was filed in which he recanted his testimony given on the trial. There was also filed a document designated an affidavit, purporting to be signed by W. F. Weaver, but not dated or sworn to, in which the statement is made that defendant was not present at the time of the commission of the crime and had nothing to do with it.

It is conceded by defendant's counsel that the crime charged in the information was committed, but denies that defendant participated therein. Weaver and Graniger definitely connected not only themselves with the crime, but also identified and related in detail defendant's participation therein. The testimony of Strobridge, heretofore set out, corroborated in many particulars the testimony of Weaver and Graniger. We have above set forth in detail the evidence in corroboration of the testimony of Weaver and Graniger concerning the participation of defendant in the crime. Summarized, it establishes that defendant's physical appearance closely resembles that of the man who held up Strobridge and forced him to open the safe; that three man participated in the holdup, two of whom are positively identified. The officer who stopped them for a traffic violation en route to Colorado Springs stated that the third man in the car resembled defendant. This was sufficient to justify the jury in rejecting defendant's alibi and giving credence to the testimony of Weaver and Graniger.

It is the province of the jury to determine who is telling the truth. The People's witnesses placed defendant at the scene of the crime and two of them testified as to his participation in the robbery. While defendant's witnesses placed him in another state at the time of the commission of the crime, it is obvious that...

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  • People v. Yeager, 25607
    • United States
    • Colorado Supreme Court
    • September 10, 1973
    ...See Candelaria v. People, Colo., 493 P.2d 355 (1972); Diaz v. People, 161 Colo. 172, 420 P.2d 824 (1966); and Bowland v. People, 136 Colo. 57, 314 P.2d 685 (1957). Nevertheless, defendant urges this court to consider a construction of Section 154--1--1, holding that the word 'may' makes the......
  • People v. Hubbard, 25770
    • United States
    • Colorado Supreme Court
    • March 4, 1974
    ...the use of prior felony convictions to impeach a defendant's testimony. People v. Neal, Colo., 509 P.2d 598 (1973); Bowland v. People, 136 Colo. 57, 314 P.2d 685 (1957). Accordingly, we KELLEY, J., does not participate. ...
  • Digiallonardo v. People, s. 24116
    • United States
    • Colorado Supreme Court
    • September 20, 1971
    ...Supra.' 79 Colo., at 557--558, 247 P., at 178. In accord with this statement of the rule are the following cases: Bowland v. People, 136 Colo. 57, 314 P.2d 685 (1957); Dockerty v. People, 96 Colo. 338, 44 P.2d 1013 (1935); Miller v. People, Supra; Ives v. People, Supra; and Quinn v. People,......
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    • U.S. District Court — District of Colorado
    • September 16, 1975
    ...(Now CRS 1973 XX-XX-XXX) Colorado cases upholding the statute include: People v. Neal, 509 P.2d 598 (Colo. 1973); Bowland v. People, 136 Colo. 57, 314 P.2d 685 (1957); Lacey v. People, 166 Colo. 152, 442 P.2d 402 (1968); People v. Yeager, 513 P.2d 1057 (Colo. 1973); People v. Bueno, 516 P.2......
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