Fagerstone v. People, 17037
| Decision Date | 06 July 1953 |
| Docket Number | No. 17037,17037 |
| Citation | 259 P.2d 274,128 Colo. 30 |
| Parties | FAGERSTONE v. PEOPLE. |
| Court | Colorado Supreme Court |
Gerald A. Kay, Denver, for plaintiff in error.
Duke W. Dunbar, Atty. Gen., H. Lawrence Hinkley, Deputy Atty. Gen., Norman H. Comstock, Asst. Atty. Gen., for defendants in error.
To a unique, duplicitous and inartistically drawn Mother Hubbard information labeled 'conspiracy', plaintiff in error, to whom we hereinafter refer as defendant, entered a plea of not guilty. The jury found him 'guilty as charged in the information.' A new trial having been denied, judgment was entered and sentence imposed. Defendant brings the case here by writ of error.
Several points are assigned for reversal, but as the judgment must be reversed, we shall note only two, notwithstanding the record is replete with other errors to the prejudice of defendant. What the district attorney evidently intended to charge was a conspiracy between this defendant and two other young men, named Jones and O'Brien, to commit armed robbery against any member of the public. The information under which this seventeen-year-old defendant was tried concludes as follows: 'and the said defendant when he was to rob the said unknown person aforesaid was to be then and there armed with a dangerous weapon, to-wit, a gun, with intention, if resisted, to main, [maim] wound and kill the said unknown person.'
The charge against defendant apparently grew out of the fact that a super-market was burglarized by Jones and O'Brien, who, together with defendant, were originally charged and convicted under a separate information of burglary, larceny and aggravated robbery, all relating to the supermarket burglary. The then district attorney dismissed that action as to defendant in the instant case, and filed the separate information under which defendant was convicted.
It is admitted that defendant did not rob any person known or unknown, and the evidence expressly negatives any such intention on his part, or any agreement or conspiracy so to do. The record is equally silent as to any intention on defendant's part to carry a 'gun with intention, if resisted, to main, [main] wound and kill the said unknown person,' as charged in the information.
The most that can be said of the evidence introduced is that the actual participants in the burglary talked to defendant about some 'robbery' they might commit; they testified that defendant stated he did not want to...
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Bates v. People
...design. (Mere passive cognizance of the crime to be committed or mere negative acquiescence is not sufficient.) Fagerstone v. People, 128 Colo. 30, 259 P.2d 274 (1953); La Vielle v. People, 113 Colo. 277, 157 P.2d 621 (1945); Cf. Goddard, Jr. v. People, 172 Colo. 498, 474 P.2d 210 At the tr......
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