Bunch v. People

• Decision Date: 20 January 1930
• Docket Number: 12334.
• Citation: 87 Colo. 84,285 P. 766
• Parties: BUNCH v. PEOPLE.
• Court: Colorado Supreme Court

285 P. 766

87 Colo. 84

BUNCH v. PEOPLE.

No. 12334.

Supreme Court of Colorado, En Banc.

January 20, 1930

Rehearing Denied March 10, 1930.

Error to District Court, City and County of Denver; Julian H Moore, Judge.

E. L Bunch was convicted of aggravated robbery, and he brings error.

Affirmed.

A. D Quaintance and Guy B. Ellermeier, both of Denver, for plaintiff in error.

Robert E. Winbourn, Atty. Gen., and E. J. Plunkett, Asst. Atty Gen., for the People.

BURKE, J.

Plaintiff in error, hereinafter referred to as defendant, was sentenced to the state penitentiary for a term of fifteen to eighteen years on a verdict of guilty of aggravated robbery. To review that judgment he prosecutes this writ.

The only assignments argued are: (1) The insufficiency of the evidence. (2) The giving of instruction No. 4.

1. The charge was the taking by force and violence 'of six hundred dollars * * * from the person and against the will of the said George Auer.' It is not contended that defendant was the principal, but that he and two others, convicted with him, were accessories who first conspired with the actual perpetrator, one 'Slim,' and were present when the latter assaulted his victim. It is said that the only direct evidence concerning the taking is the following from the examination of the complaining witness Auer, and is negative:

'Q. How much money did you have in your pocket? A. Around six hundred dollars.

'Q. Was it in bills or silver? A. I had five one-hundred dollar bills and three twenty-dollar bills and three ten-dollar bills and I had some change in a little pocketbook, that I kept in my pants pocket--five or six, or $6.50 there.

'Q. Was that money taken from you after you were struck on the head? A. No sir. My sister took it to pay doctor bills.'

It is assumed, in making this argument, that in the foregoing testimony the expression 'that money' in the last question, and the word 'it,' in the last answer, refer to all of the money which the witness had. But if the dash, appearing in the reporter's transcript after the words 'pants pocket,' indicates a marked pause in the testimony of the witness (as is probable, since the record discloses that the witness was examined 'reclining upon a stretcher'), and if the word 'that,' in the next question, and the word 'it,' in the last answer, were emphasized by the prosecutor and the witness respectively, it would then clearly appear that the witness intended to say, and the jurors understood, that the money taken by the sister to pay doctor bills was the $6.50 last referred to. If this testimony is subject to two constructions, we must assume that the jury which returned the verdict, and the judge who denied the motion for a new trial, adopted that which supports the verdict, and that it was the right one. The correctness of their conclusion is evidenced by the fact that Aldrich, a codefendant, stated: 'He ('Slim') told me he got the money.' That Shaw, another defendant, stated that 'Slim' offered to split the money with him, and that this defendant, who left the garage where the robbery occurred as soon as the attack was made by 'Slim' and returned just as the latter was leaving, admitted that 'Slim' said as they passed, 'I've got it; and I will shoot square with you fellows.' It would thus appear that defendant's contention that the taking is denied is unsupported, and that, on the contrary, it was admitted by the principal at such time and under such circumstances as to make that admission a part of the res gestae. Sullivan v. State, 58 Neb. 796, 79 N.W. 721. Nevertheless, says defendant, the only proof of the taking is by the extrajudicial confession of the principal, which, under the established rule, must be corroborated. Roberts v. People, 11 Colo. 213, 216, 17 P. 637.

Admitting the rule, and, for the purposes of this discussion, its applicability, we observe that proof of the corpus delicti may be made by circumstantial evidence. Ausmus v. People, 47 Colo. 167, 107 P. 204, 19 Ann.Cas. 491; Bines v. State, 118 Ga. 320, 45...