Compton v. People

Citation84 Colo. 106,268 P. 577
Decision Date28 May 1928
Docket Number12086.
CourtSupreme Court of Colorado

Error to District Court, Jefferson County; Samuel W. Johnson Judge.

James Compton was convicted of unlawfully aiding and assisting prisoner to escape from jail, and he brings error.


Butler and Walker, JJ., dissenting.

Louis Wagner, of Denver, for plaintiff in error.

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


This case is before us on writ of error, and application for a supersedeas, to review a judgment on a criminal charge against defendant, Compton.

The information under which he was convicted, omitting the usual formal parts, alleged that one Smith was a prisoner, lawfully detained in a jail in Jefferson county on a criminal charge specified in the information, 'and while the said Edward Smith was then and there so confined, James Compton on, to wit, the 14th day of March, A. D. 1927, at said county of Jefferson, in the state of Colorado, unlawfully aided and assisted the said Edward Smith while so detained in said jail in the county of Jefferson, in the state of Colorado, to make his escape from the jail, though no attempt to escape was actually made, by conveying, or causing to be delivered, to said Edward Smith instruments or arms proper to facilitate the escape of said Edward Smith.'

Counsel for defendant filed a motion for a new trial on two grounds (1) Error in overruling defendant's motion for a directed verdict; and (2) because the state failed to prove the allegations in the information. The assignments of error are limited to the same reason.

The gist of the essential evidence shows that Smith, the prisoner, was lawfully detained in jail at the time and place named on a criminal charge as specified in the information. The deputy sheriff in charge of the jail testified that the defendant came to the jail and asked permission to see the prisoner, which request was granted. Defendant entered the jail; the deputy swung open a solid door, leaving a barred door between the prisoner and defendant. They stood there, talking in a rather loud tone of voice. Subdenly, the conversation seemed to lag. The deputy heard something like a package, a piece of paper, rattle. He laid his paper down, leaned over, looked around, and Smith, the prisoner, made a remark, 'Jigger, there's the officer.' The officer said, 'What in hell have you got there?' Defendant folded his coat together, and said, 'Nothing.' The deputy reached inside, took a package away from defendant, and told him to sit down. The package, with a paper wrapping, contained hacksaw blades and files, three of four of each. When taken from defendant, it was in the left front pocket of his overalls, sticking out of his pocket, but wrapped as described.

Smith, the prisoner, called as a witness for defendant, testified, among other things, that defendant 'kind of leaned his hand up on the jail door, see, where they let you talk to them, and stood there just a few minutes, and he kind of felt up there in his pocket, like, and made a little move around there, and the deputy sheriff, I don't know his name, walked up, and asked him what he was doing, and right at that time I walked away from the door.' Compton did not pass anything to the prisoner, so Smith testified, and it is undisputed that the prisoner did not actually receive the saws or files. Defendant testified on his own behalf that he is a carpenter and mill wright, and said:

'I went to work, and no material was on the job, so I went back down town and fooled around, and I took a notion to get me some files to go home to file my saw with, and get me a few hacksaw blades, and I went out home.'

Later, he said, he met a friend; they went riding; a tire blew up; his friend stopped to fix it; and defendant, at the friend's suggestion, went to the jail to see if Smith, the prisoner, 'needed any tobacco or any clean clothes or anything.'

The jury found defendant guilty, and he was sentenced to six months in jail and to pay a fine of $100.

1. The only question that the defendant is entitled to have reviewed is that the state failed to prove the allegations in the information; such being the sole reason alleged in the motion for a new trial and assignment of errors. Concerning the sufficiency of the evidence, we quote with approval the language of Mr. Justice Sheafor in Eachus v. People, 77 Colo. 445, 448, 236 P. 1009, 1010:

'We can say here, as we said in the Cronin Case [71 Colo. 194, 205 P. 271] that: 'there was evidence from which the jury might reasonably have found as they did, though there was other evidence from which a contrary inference might have been drawn. Under that condition we cannot disturb the verdict.''

2. Counsel for defendant says in his brief that the deputy sheriff 'tried to create the impression in his direct testimony that the defendant had the tools in his hands, and concealed them by folding his coat over them, which, under cross-examination, he said was not true.' Counsel, however, has inadvertently misquoted the record. The folio number that he gives to sustain his statement says this:

'Q. All right, now then, when you grabbed Mr. Compton, you took these files and saws away from him? A. Yes.
'Q. Where were they when you took them? A. He had a pair of top overalls, and they were pushed down in this left top overall pocket, sticking out about half the length of the package.'

Counsel repeated his questions, and like answers were returned. The witness did not retract his previous testimony. The fact that the tools were wrapped in paper and under defendant's coat is ignored by counsel in this effort to discredit the witness.

3. Although there is but one ground for the assignments of error, as stated above, nevertheless counsel for defendant uses it as a common center from which he indirectly attacks the information, and which, if he is correct, involves the integrity of the statute itself on which the charge is based.

Technical objections to the form of an information, first presented after conviction, are too late. Bridge v. People, 63 Colo. 319, 165 P. 778; Dillulo v. People, 56 Colo. 339, 138 P. 33; Howard v. People, 62 Colo. 131, 160 P. 1060; Doyle v. People, 65 Colo. 124, 173 P. 1141. And it is no less prohibitive merely because counsel gives his point a wrong designation or classification; i. e., insufficiency of the evidence. The sufficiency of the information is not to be determined from the evidence.

4. Illustrative of the above, we quote the statute which defendant was charged with violating. It comes under the general category of legislation to prevent hindrances to public justice. It is section 6805, C. L. 1921, and reads:

'If any person shall aid or assist a prisoner lawfully committed or detained in any jail for an offense against this state, or who shall be lawfully confined by virtue of any civil process, to make his or her escape from the jail, though no escape be actually made, or if any person shall convey or cause to be delivered to any such prisoner any disguise, instrument or arms proper to facilitate the escape of such prisoner, any person so offending (although no escape or attempt to escape be actually made) shall, on conviction, be punished by a fine not exceeding five hundred dollars and imprisoned in the county jail for a term not exceeding one year.'

Counsel for defendant argues that, at best, there was nothing more than an attempt to deliver the instruments to the prisoner. Granting for the nonce that this be true, it is immaterial here. An information charging a crime necessarily charges an attempt to commit such crime. People v. Webb, 127 Mich. 29, 86 N.W. 406. It is admitted that, under the common law, an attempt to commit a crime is equally indictable as a consummated crime. See, also, Howard v. People, supra, at page 135 (160 P. 1060). And, by the express terms of this statute, defendant is guilty regardless of the success or failure of his unlawful venture. As to delivery, it may be, and undoubtedly is, true that there was no completed delivery in the technical sense that we sometimes speak of the delivery of a deed or article that requires an acceptance to make it complete. This was fortunately frustrated by the vigilance of the official. No response or acceptance by the prisoner of the files and saws was required to complete defendant's statutory crime.

5. It is urged that the defendant did not convey the instruments to the prisoner, but we think the evidence is ample to warrant the jury in concluding that he did. It shows that he took them to the door of his friend's cell, or place of confinement, which was as far as he could go. His journey was over, and he tried to make it effective. According to the prisoner himself, defendant's witness, defendant leaned his hand on the cell door, and felt in his pocket. The jailor heard the package or paper rattle, and acted quickly. The language of the statute is in the disjunctive, 'Conveying or causing to be delivered.' The conveyance was complete, and, even if the delivery was incomplete, the crime was effected. There was, however, but one crime alleged and proven, which, of course, was enough.

6. Any variance between the allegations and proof not material to the merits of the case, or that does not tend to prejudice the substantial rights of the defendant on the merits, does not constitute reversible error. Section 7103, C. L. 1921. As said by Mr. Justice Denison in Whitfield v. People, 79 Colo. 108, 112, 244 P. 470, 472:

'We agree with the remarks of Mr. Justice Bailey (63 Colo. pp. 397 and 398, 167 P. 779). There is no possibility of mistaking the nature of the offense (C. L. § 7062); nor does

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