Ellis v. People

• Decision Date: 10 December 1945
• Docket Number: 15620.
• Citation: 114 Colo. 334,164 P.2d 733
• Parties: ELLIS v. PEOPLE.
• Court: Colorado Supreme Court

164 P.2d 733

114 Colo. 334

ELLIS v. PEOPLE.

No. 15620.

Supreme Court of Colorado, en Banc.

December 10, 1945

Error to District Court, Bent County; David M. Ralston, Judge.

Raleigh V. Ellis was convicted of murder in the second degree, and he brings error.

Reversed.

Charles J. Moynihan, Dan H. Hughes, and Edward M Sherman, all of Montrose, and C. E. Sydner, of Las Animas for plaintiff in error.

H. Lawrence Hinkley, Atty. Gen., Duke W. Dunbar Deputy Atty. Gen., and Jack L. Graham, Asst. Atty. Gen., for defendant in error.

STONE Justice.

Defendant was charged as accessory and convicted thereunder of murder of the second degree.

The evidence shows that at about eight-thirty o'clock on the evening of January 11, 1944, a young man appeared at the door of the home of Prowers Hudnall in Las Animas, Colorado, with a handkerchief tied over his face, a gun in one hand and a knife covered with a handkerchief in the other. He said it was a holdup and that he wanted one hundred dollars. When Hudnall handed over his wallet he grabbed for the gun and, while the two men struggled, his wife ran for help. When she returned she found her husband dying of knife wounds and a trail of blood making the assailant's flight. She gave sufficient description so that the identity of the assailant was quickly determined and about midnight he was picked up at his room and placed under arrest. When found, he had a severe cut across the palm of his hand. This assailant was a seventeen-year old boy named Lawrence Kennedy, who had lived in the vicinity of Las Animas since 1937 and had finished the eighth grade in school. He had been away through the summer following up harvest work and after his return instead of living at the farm home of his parents, four miles south of Las Animas, he stayed in town with a cousin named Don Myers in a two-room apartment over an inn. Kennedy readily confessed the murder and at first insisted that no one else had any part in the perpetration of the crime; but two days later, after his father had visited him at the jail with the sheriff, he changed his story and implicated defendant, whose divorced wife was a cousin of Kennedy's mother. Defendant was employed at the La Junta air base and lived alone in Las Animas after his wife had left him, taking the two children, about five months Before .

The somewhat confused testimony of Kennedy, the confessed murderer, was that, beginning just Before Christmas, at defendant's invitation, he visited several times at the latter's home. His last visit was on Monday night, the night Before the murder, and on his next prior visit he had mentioned to defendant a knife that he had had his grandfather make for him to stick hogs 'and stuff like that,' and they then discussed holdups and buying a gun, and defendant said he should keep the knife because they couldn't get any shells for the gun which defendant recommended that he buy. On the night Before the murder, when Kennedy last visited defendant, instead of going alone, he took with him a fourteen-year old boy named David Bray with whom he was well acquainted and who had several times visited at Kennedy's room. Kennedy had worked about a year at the Fort where Bray lived, and Bray, when going to school in Las Animas, had worked at the pool hall across the street from the garage where Prowers Hudnall and his wife both worked. Kennedy spent considerable time at the pool hall. On the night of that last visit, Kennedy and defendant talked in the kitchen while Bray was in the dining room listening to the radio, defendant having 'told him to scram, get in there and listen to the radio; him and I wanted to talk.' They then talked about holdups and defendant suggested that they hold up two places in the country but first wanted to rob a place in town so that the officers would be busy there while they made the holding out in the country. Kennedy showed the gun he had bought that day, and defendant said he should take both a knife and gun. 'If they got the gun away from us or something, we would have to use it, of course, to protect ourselves.' Defendant would not tell Kennedy whose place in town was to be held up, although he named the two places in the country, but defendant drew 'some pictures' and described the place so he would know where to go. He told Kennedy to go down Main Street to within one block of the camp ground, and to wait there on the corner until he came along in a car; then Kennedy was to go one block west, one block south, another one west and then to the second house from the corner. Defendant also 'drew a picture of the porch and showed me how it was fixed,' and said there was a Red Cross sign in the front door. The holdup was to be carried out the next night and defendant was to wait with his car parked on the opposite side of the street and just around the corner. Defendant told Kennedy that the two holdups out in the country ought to make them around 'two grand,' or two thousand dollars. Kennedy was to commit the crimes and defendant was to assist in his escape.

After the visit of Kennedy and Bray at defendant's house, according to Don Myer's testimony, Kennedy took Bray with him to his room where the two boys stayed overnight. Bray testified that he could not remember where he spent the night.

The next afternoon Kennedy went to his room at four o'clock and stayed there until seven in order to meet some 'party' who was to bring him some shells for the pistol when the bus came in. The record is strangely silent as to who was to bring the shells and whether they were brought. He had testified previously that he already had one shell and testified a little later that at the time of the robbery the gun wasn't loaded. After seven o'clock he followed defendant's directions and saw his car pass the agreed corner and, upon arrival at the house to be held up, he again saw the car which was waiting at the agreed place. He recognized the Hudnall house by defendant's 'picture' of the porch and the Red Cross sign in the front door. At one place in the record he said he went in the house from the front door, but again he testified that the Red Cross sign was in the side window and that he went in on the left side. After the attempted holdup and murder he ran over 'cater corner' across the street to make his escape in defendant's car and when he was within about six feet of the car defendant saw the blood on his hand and sped away at about sixty miles an hour without picking him up.

As corroborating Kennedy's testimony, an employee at the Hudnall filling station testified that on the evening Before the murder, defendant purchased some oil at the station after they had locked up, and while witness and Mr. Hudnall were counting the day's receipts; that they money they were counting was on the 'big desk,' and witness gave defendant change for a five dollar bill out of a drawer in the safe, and not out of the day's receipts; that after receiving his change defendant smoked a cigarette and remained two or three minutes; that in his presence Mr. Hudnall asked witness how much money he thought there was 'laid out on the table, counting up the day's receipts,' and he told him over two hundred dollars; that at the end of the day the money was put in the safe. The people followed this testimony by introducing in evidence the tickets of the filling station for the tenth of January, all connected and showing each customer, including the defendant as the last one for the day; however, these tickets, instead of showing in the neighborhood of two hundred dollars, disclosed total cash receipts on that day of only $21.28. This apparent discrepancy was not explained or mentioned in the record, but is here emphasized by defendant's counsel. It may further be noted that nothing appears in the testimony as to the location of the Hudnall residence where the holdup occurred with reference to the filling station where defendant saw the money. The jury may have assumed the residence was connected with the station. However, a plat, apparently put in the record after the trial and stipulated as being correct, shows that the two places were more than three blocks apart. Assuming that the murdered man was the owner of the filling station where he worked, and further assuming that the day's receipts in fact totaled over two hundred dollars, there still appears to be no relevancy in the testimony that defendant knew Hudnall had two hundred dollars in the safe at the garage, to connect him with a holdup that night at Hudnall's home three blocks away. It was both irrelevant and prejudicial, but was received without objection.

David Bray by his testimony corroborated the evidence as to the visit to defendant's home the night Before the murder and stated that he overheard only two bits of conversation: Something about 'two grand' and 'when a guy gets too smart for you.' He did not see any pistol, but knew Kennedy had one 'when he was going down there,' and thought he showed it to defendant. As further corroboration, a neighbor testified that about eight-thirty o'clock on the evening of the murder she saw a parked car with the lights on, and all at once it went away 'awful fast'; that the car was parked 'right across from the Hudnall home, angling,' and that she heard to the murder about twenty minutes afterwards. Upon interrogation by the court she testified that she did not see any person at or near the car when it was driven away. Kennedy had testified that he was within six feet of defendant's car at the time. The sheriff testified that Kennedy's knife and gun were found hidden 'in some trash and stuff' in the hallway four or five feet from the room occupied by Kennedy and where he was arrested, while Kennedy had testified that he threw them...