Funk v. People
| Decision Date | 11 January 1932 |
| Docket Number | 12576. |
| Citation | 7 P.2d 823,90 Colo. 167 |
| Parties | FUNK et al. v. PEOPLE. |
| Court | Colorado Supreme Court |
Error to District Court, City and County of Denver; E. V. Holland Judge.
Lawrence Gilbert Funk and others were convicted of aggravated robbery and they bring error.
Reversed and remanded, with instructions.
Granby Hillyer, Jr., of Lamar, and William P Kavanagh and Edward R. Gilliam, both of Denver, for plaintiffs in error.
Robt. E. Winbourn, Atty. Gen., and E. J. Plunkett, Asst. Atty Gen., for the People.
Lawrence Gilbert Funk, Theodore Plymell, Gregory Ceretto, and Clayton Mullenax were jointly tried and convicted of the crime of aggravated robbery and sentenced to a term in the penitentiary. They prosecute this writ and assign errors, of which one only need be considered. The charging part of the information is: '* * * In and upon one J. T. Davis, did make an assault and one yellow gold Elgin watch of the value of fifteen dollars, one rolled gold watch chain of the value of five dollars, seven dollars in money of the value of seven dollars, of the personal property of J. T. Davis from the person and against the will of the said J. T. Davis then and there feloniously and violently, and by force and intimidation did rob, seize, steal, take and carry away; and that the said Lawrence Gilbert Funk, * * * when they so robbed the said J. T. Davis as aforesaid were then and there armed with a dangerous weapon, to-wit, guns with intention, if resisted, to main and kill the said J. T. Davis. * * *'
The information charged the crime of aggravated robbery. Under this charge, the jury must first determine from the evidence whether or not a robbery had been committed, and, if so, whether or not, in its commission, defendants were armed with dangerous weapons, with intent, if resisted, to kill, maim or wound J. T. Davis; and if defendants were so armed and had such an intent, it was the duty of the jury to find them guilty of aggravated robbery. That fact of defendants being armed with a dangerous weapon, and possessing the intent mentioned, was not the essence of the offense of robbery, and the proof of these two facts was not necessary for a conviction of the offense of robbery, but these facts go to the degree of the crime, and affect only the punishment to be suffered in event of a conviction.
Counsel for defendants called each of them as witnesses; they readily admitted the robbery of J. T. Davis and of many other persons; each of two of the defendants was sixteen years of age; one seventeen years, and the other eighteen years of age; they each testified that the guns used in the robberies were unloaded, and when one of the defendants was asked 'Did you ever intend to kill or maim any one if you were resisted in any of these robberies?' he answered 'No, sir.' Thereupon, an objection by the district attorney was interposed and sustained. Where intent is of the essence of the crime, as here, a defendant has the right to...
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Carlson v. People, 13034.
... ... murder, and not manslaughter, or an act performed in ... self-defense, yet, so long as there is evidence relevant to ... the issue of manslaughter, its credibility and force are for ... the jury, and cannot be matter of law for the decision of the ... court.' In Funk v. People, 90 Colo. 167, 7 P.2d ... 823, we held [91 Colo. 425] that as there was evidence ... tending to negative the specific intent necessary to ... constitute aggravated robbery, an instruction on simple ... robbery should have been given. The judgment was reversed for ... the trial ... ...
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