Connor v. People

Citation18 Colo. 373,33 P. 159
PartiesCONNOR et al. v. PEOPLE.
Decision Date01 May 1893
CourtSupreme Court of Colorado

Error to district court, Arapahoe county.

James Connor, Charles Connor, and James Marshall were convicted of conspiracy to rob, and they bring error. Reversed.

The other facts fully appear in the following statement by GODDARD, J.:

On the 8th day of June, 1889, James Connor, Charles Connor, and James Marshall were indicted in the district court of Arapahoe county for a conspiracy to rob the Denver & Rio Grande Railroad Company. The indictment contained five counts, charging the offense in various forms. On the 5th day of October, 1889, the cause came on for trial, and upon the 28th day of October, 1889, a verdict of guilty against the defendants was returned upon all the counts of the indictment. Motions for new trial and in arrest of judgment were filed and overruled, and they were sentenced, under the verdict upon the first count of the indictment, to imprisonment in the county jail, and to pay a fine and costs. They bring the case here for review, and present numerous assignments of error as grounds for reversal of such conviction and sentence.

Rhodes & Carpenter and Charles Hartzell, for plaintiffs in error.

Eugene Engley, Atty. Gen., Joseph H. Maupin, and John G. Taylor, for the People.

GODDARD J., (after stating the facts.)

We omit the discussion of many of the errors assigned, not because we regard them as without merit, but because those considered are more important, and are decisive of the case. The vital and important question presented by the record is whether under the evidence, any crime is shown to have been committed. The crime charged is a conspiracy entered into by the defendants below, (plaintiffs in error here,) to rob the Denver & Rio Grande Railroad Company. The statute defines a conspiracy as follows: 'If any two or more persons * * * shall agree, conspire, or co-operate to do, or aid in doing any other unlawful act,' etc. To constitute the crime there must be not only an agreement to co-operate to do a certain act, but that act must be unlawful. The unlawful act to be done in pursuance of the conspiracy as charged in the indictment was the commission of larceny in taking the property of the Denver & Rio Grande Railroad Company. The evidence introduced on the trial to sustain the fact of confederation between the plaintiffs in error was the testimony of the witness Holliday, alias Ward which in effect is that he was in the employ of Thiel's Detective Agency, of St. Louis, Mo., and was sent to Kansas City on a special mission to find out if one James Marshall corresponded with the police department of Denver, and also to find out if he knew anything about the First National Bank robbery. That he met Marshall, and learned from him that the chiefs and heads of the police department in Denver were his friends, and would co-operate with him, or any one he should introduce, in any unlawful scheme, and, upon obtaining promise of a letter of introduction to them from Marshall he, (Holliday,) returned to St. Louis to report to his superiors what he had done. That his superiors suggested that he devise a scheme to rob an express company, planning such robbery like one that had taken place in Missouri. On the 9th day of April he returned to Kansas City, and, on meeting Marshall again, he told him that he had a friend in New York who knew a messenger who ran out of Denver, and from whom he could get a letter to such agent; that he had written for the letter, and it would be in Denver in a few days. That Marshall expressed a hope that it was on the Denver & Rio Grande. That he obtained the letter of introduction to James Connor, and agreed with Marshall to let him know where he was stopping in Denver, and to wire him before the robbery, so he could come on and take part. On his arrival in Denver, and on the 12th of April, he presented his letter of introduction to James Connor, and stated to him the same in reference to a letter to an agent. That he, (Connor,) expressed the hope that it was over the Denver & Rio Grande. That on the 13th of April he met Farley, who was then resident manager of Thiel's Detective Agency in Denver. 'Told Farley I had a talk with Connor. * * * Up to this time I had done what I did from instructions from the St. Louis office. After this I was under instructions from Farley. Question. When did you first discuss the plan of the robbery, and with whom did you first talk about the plan of operations to rob this road? Answer. I think it was with Mr. Farley at 31 and Curtis. We discussed the D. & R. G. road, when I told him what I had learned from the defendants.' That a letter was prepared in Mr. Farley's office, with the consent of the officers of the company, purporting to be written by one William S. Buell, of New York, to Icon, an express agent in the employ of the Denver & Rio Grande Express Company, introducing to him Mr. Holliday as Joe Ward. That plans were devised between Holliday and Connor to carry out the robbery. Mr. Farley testifies that on the night of the 13th of April, after meeting Holliday, he saw Mr. Gillooly, treasurer of the Denver & Rio Grande Railroad Company, and told him what Holliday had said; and, it appears from the evidence, from that time on, the company, through its officers, not only consented that their property might be taken, but co-operated with the witness Holliday, through Farley, in perfecting plans by which such taking might be accomplished. Mr. Gillooly testifies that 'Holliday was in the employ of Thiel's Agency. Thiel was in our employ. Whatever Mr. Holliday did was being done with the full knowledge and consent of the company. This scheme was being worked for nearly a month.'

To constitute the crime of larceny at common law there must be a trespass,--that is, a taking of property without the consent of the owner,--coupled with an intent to steal the property so taken. It is therefore evident that the crime is not committed when, with the consent of the owner, his property is taken, however guilty may be the taker's purpose and intent. This is the accepted doctrine, as laid down by the various text writers on criminal law. Mr. Bishop, discussing this principle in the fifth edition of his work on Criminal Law, (section 262,) says: 'The cases of greatest difficulty are those in which one, suspecting crime in another, lays a plan to entrap him. Consequently even if there is a consent, it is not within the knowledge of him who does the act. Here we see, from principles already discussed, that supposing the consent really to exist, and the case to be one in which, on general doctrines, the consent will take away the criminal quality of the act, there is no legal crime committed, though the doer of the act did not know of the existence of the circumstance which prevented the criminal quality from attaching.' 2 Archb. Crim. Pr. & Pl. 1181; 2 Russ. Crimes, 190; 3 Chit. Crim. Law, 925; 1 Whart. Crim. Law, § 914. To the same effect is the uniform current of the decisions. In the case of Reg v. Johnson, 41 E. C. L. 123, it was held that, where a servant pretended to concur with two persons who proposed to rob his master's house, and acting under the advice of the police he opened the door for them to enter, there could be no conviction of burglary. Of the same purport is the case of Allen v. State, 40 Ala. 334, wherein it is said: 'Where the proof showed that the prisoner proposed to a servant a plan for robbing his employer's office by night; that the servant disclosed the plan to his employer, by whom it was...

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