Cook v. People

• Decision Date: 02 February 1914
• Citation: 138 P. 756,56 Colo. 477
• Court: Colorado Supreme Court
• Parties: COOK v. PEOPLE.

138 P. 756

56 Colo. 477

COOK v. PEOPLE.

Supreme Court of Colorado, En Banc.

February 2, 1914

Error to District Court, City and County of Denver; Hubert L Shattuck, Judge.

Oscar Cook was convicted of murder, and brings error. Reversed.

Dana & Blount, of Denver, J. S. Dickey, Jr., of Wagoner, Okl., and John A. Deweese, of Denver, for plaintiff in error.

Fred Farrar, Atty. Gen., and Frank C. West, Asst. Atty. Gen., for the People.

GARRIGUES J.

Upon a joint information and trial of Oscar Cook and Edward Seiwald charged with murder, Cook was convicted and sentenced to be hanged. To reverse this judgment, he brings the case here on error.

1. There was evidence showing that about 11 o'clock at night, March 9, 1912, two men attempted to hold up the people in, and rob, the saloon of one A. J. Loyd at Valverde in the city of Denver. In the encounter and shooting which followed Loyd and a patrolman named McPherson were killed, and one of the robbers wounded. There was snow on the ground and the night was cold. Loyd, his wife, and McPherson were sitting around the stove in the barroom chatting, and Evans, the bartender, was leaning against the wall, when two masked men appeared in the door with drawn revolvers. The foremost man advanced to the center of the room and commanded, 'Hands up.' McPherson wore a citizen's overcoat buttoned over his uniform, and was shot while trying to get his gun. Several shots were exchanged before the officer fell. Loyd, in going behind the bar for his gun, passed the other robber standing in the door, who fired upon him; the shooting became general, and McPherson and Loyd received wounds from which they shortly thereafter died. The next day Cook and Seiwald were charged with the crime and arrested in the room of Florence Shelton in a rooming house in Denver, where they had frequently held meetings. Cook was suffering from a dangerous and recently inflicted gunshot wound in the body, and taken to the hospital in a critical condition. March 11th, two days after the shooting, while Cook was in the hospital, Seiwald in his absence made a statement containing 19 pages of typewritten matter, to the chief of police and district attorney, which was taken in shorthand by one Smith, stenographer to the chief. In this statement Seiwald attempts to exonerate himself by throwing the responsibility for the homicide on Cook, with the evident purpose of securing his own acquittal. It recites their acquaintance at Leadville, how Cook followed him to Brighton and persuaded him to come to Denver; it emphasizes the power and influence Cook acquired and held over him, which he claimed he could not resist, and tells of Cook giving him liquor and persuading him to drink in order to entice him into crime; it recounts their exploits in Denver, their meetings at this rooming house at which Cook planned this and other robberies; it narrates conversations with Cook in which he told Seiwald of other felonious transactions and holdups in which he had been engaged; it tells how Cook procured the weapons and masks used in the holdup, and how by drink and influence he compelled Seiwald, through fear and persuasion, to go with him to the saloon that night; that it was he who stood in the door, and Cook who advanced to the center of the room and killed the two men; that, when he realized the purpose and saw what Cook had done, the power and influence over him was broken, and, firing one shot in the direction of Cook, he fled from the place, that being the only shot he fired leaving the intended inference that it was he and not the officer who wounded Cook; that he went to the saloon against his will, and he took no part in the homicide. This statement was marked Exhibit D. Throughout the trial Seiwald in his defense attempted to establish the guilt and responsibility of Cook for killing these men, and his own innocence, and Cook was equally emphatic in maintaining his innocence and in his denunciations of Seiwald. If they had been friends, they at least seemed to be bitter enemies at the trial, and it would be difficult to conceive of a case where two men on trial jointly had more hostile and antagonistic defenses.

On the afternoon of the day when Seiwald's statement was made, the chief of police, accompanied by his stenographer, a representative of the district attorney's office, and a couple of patrolmen, visited Cook at the hospital, and the stenographer read to him Seiwald's statement. What occurred there was related on the trial by the stenographer when examined for the people by deputy district attorney McComb as follows: 'Q. Do you know the defendant Cook? A. I have seen him before. Q. Where did you see him the first time? A. I saw him in St. Joseph's hospital. Q. Who was present? A. Well, there was the chief of police and the deputy district attorney, Bailey, and yourself, and myself and patrolman Carl Wilson, and I believe that was all. Q. Where was the defendant Cook at the time you have described? A. He was lying in a cot in a room in St. Joseph's hospital. Q. Now, Mr. Smith, you may state, if you will, what you did, or what you said in the presence of Mr. Cook and Mr. Seiwald? A. I took the stenographic notes that I had made of the confession of Seiwald, and, in the presence of the persons that I named, I read them to the defendant Cook, as I sat by the bedside. Q. How far would you say that you were away from the defendant Cook at the time you were reading the statement of Seiwald, as you have described? A. Well, I was right close to the bed, not over three feet from his head. Q. What statement do you mean that you read? A. The statement that I had taken in the office of the chief that morning, the same morning of the statement of Seiwald. Q. Is that the one that you have referred to as having extended and being Exhibit D.? A. Yes, sir; the same statement. Q. Was there anything else said to the defendant Cook at that time, or in the presence of Cook and Seiwald, by any other person than yourself, if you remember? A. Yes; he was asked by you if he had heard the questions and answers that were read to him, and asked what he had to say about the matter, and what was his side of the story, and he denied knowing Seiwald, or that he had ever seen him before. He was asked how he got shot, and he said he didn't know; and he was asked if he did not know that he had killed two men, and he shook his head and denied everything. Q. Do you remember at that time of anything else, other than you have testified to, that took place in the room where Cook and Seiwald were? A. Why, no, sir; I believe that is all.'

Other witnesses who were present testified that Cook was interrogated after the reading of this statement to him, and he said he had nothing to say.

An information was thereafter filed against Cook and Seiwald charging them jointly with murder. Whereupon Cook filed the following motion for a severance: 'Comes now Oscar Cook, one of the defendants in the above-styled cause, by J. S. Dickey, Jr., his attorney, and respectfully moves the court that the trial of the two defendants in this cause be separated, and that the defendant Oscar Cook be permitted to go to trial alone, for the following reasons, to wit: (1) That there is evidence which does not relate to the reputation of this defendant, and which would be material and admissible as to this defendant, if tried jointly with Edward L. Seiwald, but which would be immaterial and inadmissible as to this defendant, if tried alone. (2) That evidence will necessarily be admitted in the prosecution or defense of the defendant Edward Seiwald, which, though inadmissible on the trial of Oscar Cook alone, will, if the joint trial be allowed, unavoidably reach the ears of the jury, to the fatal prejudice of the defendant Oscar Cook, whereby his constitutional right to trial by jury will be violated and the life and liberty of this defendant hazarded, without authority of law.' This motion was denied, and they were tried jointly against Cook's protest. On the trial, Seiwald's statement Exhibit D, read to Cook at the hospital, was offered by the district attorney, admitted, and read to the jury as evidence for the people against Cook, over his objection.

2. Two errors are assigned: First, denying the motion for a separate trial; second, admitting Seiwald's statement as evidence for the people against Cook. Both are well taken. The first error arose in denying a separate trial. The second would probably have been avoided if Seiwald had been tried separately, as the statute requires in such a case. The statute (Laws of 1891, p. 132) is as follows: 'When two or more defendants are jointly indicted for any felony, any defendant against whom there is evidence, which does not relate to the reputation of such defendant, and which would be material and admissible as to such defendant, if tried separately, but which would be inadmissible as to any other of said joint defendants if tried alone, such defendant against whom evidence as aforesaid, is material and admissible, shall be tried separately. In all other cases, defendants jointly indicted or prosecuted, shall be tried separately or jointly in the discretion of the court.' R. S. 1908, § 1981.

Illustrated by this case, it means that when two defendants are jointly indicted, and there is evidence for the prosecution admissible against one (Seiwald), if tried separately, and inadmissible as to the other (Cook), if tried alone, the defendant against whom such evidence is admissible (Seiwald) shall be tried separately. Seiwald's statement was admissible against him tried either jointly or separately but not admissible against Cook tried alone, in which case the statute says Seiwald shall be tried separately. But the severance must be...