Davidson v. People

• Decision Date: 04 February 1918
• Docket Number: 8977.
• Citation: 64 Colo. 281,170 P. 962
• Parties: DAVIDSON v. PEOPLE.
• Court: Colorado Supreme Court

170 P. 962

64 Colo. 281

DAVIDSON v. PEOPLE.

No. 8977.

Supreme Court of Colorado, En Banc.

February 4, 1918

Error to District Court, El Paso County; J. W. Sheafor, Judge.

J Lofton Davidson was convicted of conspiracy, and he brings error. Reversed, and remanded, with directions to dismiss.

John J Morrissey, William H. Scofield, and Charles T. Mahoney, all of Denver (Joseph J. Walsh, of Denver, of counsel), for plaintiff in error.

Fred Farrar, former Atty. Gen., Leslie E. Hubbard, Atty. Gen., and W. B. Morgan and Bertram B. Beshoar, Asst. Attys. Gen., for the People.

BAILEY J.

This case arises out of a prosecution for alleged conspiracy. The information was in two counts. Defendant was convicted on the second count in the district court of the City and County of Denver, and was granted a new trial. Upon motion change of venue was had, and a second trial in El Paso County resulted in a disagreement of the jury. Defendant at the third trial was found guilty upon the second count of the information, from which verdict and judgment he brings the case here for review on error.

The two counts in the information are admittedly descriptive of the same offense; the defendant is charged with conspiring with the same persons, on the same date, for the purpose of obtaining money from the same prosecuting witness by means of the same false pretenses. He was placed on trial on both counts. At the close of the evidence he moved that the People be required to elect upon which count they would rely. No ruling was made upon the motion at that time, but prior to the giving of instructions, and after all of the testimony was in, the court required the People to elect. The district attorney thereupon abandoned the first count, and as to it a formal verdict of not guilty was returned by the jury under direction of the court, and a formal judgment of acquittal entered accordingly.

At the second trial defendant entered a plea of former jeopardy upon the theory that as the first count admittedly described and referred to the same offense as that set out in the second count, acquittal upon the first count was tantamount to acquittal upon the whole information. Demurrer to his plea was interposed by the People, and sustained. On the same grounds the plea of former jeopardy was again interposed at the last trial of defendant, and its sufficiency again denied. That ruling, among others, is assigned as ground for reversal of the judgment.

In discussing the defense of autrefois acquit, it is said in 8 R.C.L. at page 134:

'It is an established maxim of the common law, in the administration of criminal justice, constantly recognized by elementary writers, and courts of judicature from a very early period down to the present time, that a man shall not be brought into danger of his life or limb for one and the same offense, more than once. This rule not only prohibits a second punishment for the same offense, but it goes further and forbids a second trial for the same offense, whether the accused has suffered punishment or not, and whether in a former trial he has been acquitted or convicted. * * * The right not to be put in jeopardy a second time for the same cause is as important as the right of trial by jury, and is guarded with as much care. Accordingly there will be found in the Constitution of the United States and in the Constitutions of most of the states a provision that no person shall for the same offense be twice put in jeopardy, which, however, is but a recognition of the humane rule of the common law, and a plea of former conviction is good either under the Constitution or the common law. The protection thus afforded is not against the peril of second punishment, but against being again tried for the same offense.'

This common law rule is recognized in the Constitution of this State in article 2, section 18, which provides:

'Nor shall any person be twice put in jeopardy for the same offense.'

In Carson v. People, 4 Colo.App. 463, 36 P. 551, the rule is established that former conviction or acquittal is a bar to subsequent indictment or information for an offense for which defendant might have been convicted under the indictment and testimony in the first case. It also...