Davis v. People
| Decision Date | 04 December 1895 |
| Citation | 22 Colo. 1,43 P. 122 |
| Parties | DAVIS et al. v. PEOPLE. |
| Court | Colorado Supreme Court |
Error to district court, Arapahoe county.
Esau Davis and others were convicted of a conspiracy to commit larceny, and bring error. Reversed.
Thomas Ward and H. L. Emerson, for plaintiffs in error.
Byron L. Carr, Atty. Gen., and F. P. Secor, Asst. Atty. Gen., for the People.
The plaintiffs in error, Esau Davis, Thomas Drew, Maud Sullivan James Burns, and Timothy Drew, were indicted upon a charge of conspiracy to commit a felony, to wit, larceny of money from one Mike Johnson. As a bar to prosecution under this indictment, Maud Sullivan filed a plea of former conviction and Timothy Drew filed a plea of former acquittal. These pleas set forth that at the January term, 1894, of the district court of Arapahoe county, Maud Sullivan and Timothy Drew were tried upon an indictment charging them with stealing the money in question from Johnson; that upon such trial Maud Sullivan was convicted of the crime charged, and sentenced to the penitentiary for the period of six years and that said judgment and sentence remained in full force and unreversed. Timothy Drew was acquitted. The indictment charged both as principals, but it appeared from the plea filed by Timothy Drew, and the admission of the prosecuting attorney, that he was tried thereunder as an accessory before the fact, and that, while he was not present at the time the larceny was committed, he had devised the transaction, and advised and encouraged Maud Sullivan to commit the crime. It is evident, therefore, that the facts necessary to show his guilt as accessory before the fact are essential to show him guilty of the conspiracy charged in this indictment. In other words, the criminal conduct that would constitute him an accessory before the fact where the object of the conspiracy has been consummated, is the same that would prove him a conspirator, where the contemplated crime is not completed. It is laid down by Wharton as a general rule that, 'where the evidence necessary to support the second indictment would have been sufficient to procure a legal conviction upon the first, * * * the plea is generally good.' Whart. Cr. Pl. § 456. And he also lays down the doctrine that an acquittal as principal bars an indictment as an accessory, when, as under our statute, accessories may be indicted as principals. Id. § 458. We think it too clear for discussion that the facts alleged, and admitted by the demurrer, constitute a good plea of former acquittal, and the court erred in sustaining the demurrer to the same.
The plea of former conviction on the part of Maud Sullivan presents a different question. As to her, the evidence necessary to sustain a conviction under the former indictment is not necessary to show her guilty under the present, since the actual commission of the larceny itself did not involve her conduct as a conspirator to perpetrate that crime. Therein her case differs from that of Timothy Drew, and the only question presented by her plea is whether one who has been convicted for committing the crime that is the object of the conspiracy can also be convicted upon the charge of conspiring to commit the crime. There is a diversity of opinion upon the question in the adjudicated cases, some of the courts holding that if there is a conspiracy to commit a felony, conspiracy being a misdemeanor, if the felony is committed there can be no conviction for the conspiracy, since it merged in the felony. Bishop, in his work on Criminal Law (section 814) questions the correctness of this doctrine, and says the authorities agree that such rule is not applicable where the object of the conspiracy is also a misdemeanor. Under our statute (Sess. Laws 1891, p. 125, § 2) the conspiracy to commit a felony is also made a felony. The doctrine of merger, therefore, does not apply. State v. Mayberry, 48 Me. 218. The act of conspiracy and the act of committing the contemplated crime being different and distinct offenses, the conviction or acquittal of one cannot be pleaded in bar to an indictment for the other. State v. Sias, 17 N.H. 558; Whitford v. State, 24 Tex. App. 489, 6 S.W. 537; Reg. v. Button, 11 Adol. & El. (N. S.) 929. The demurrer to the plea of Maud Sullivan was therefore properly sustained.
Before the trial each of the defendants filed a motion for a...
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Kolkman v. People
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