Hamby v. People
| Decision Date | 29 June 1942 |
| Docket Number | 14860. |
| Parties | HAMBY v. PEOPLE. |
| Court | Colorado Supreme Court |
Rehearing Denied Sept. 14, 1942.
Error to District Court, Huerfano County; John L. East, Judge.
Loren Hamby was convicted of first degree murder, and he brings error.
Affirmed.
A. T. Stewart, of Pueblo, and I. E. Schachet, of Walsenburg, for plaintiff in error.
Byron G. Rogers, Atty. Gen., Gerald E. McAuliffe, Asst. Atty. Gen Gail L. Ireland, Atty. Gen., H. Lawrence Hinkley, Deputy Atty. Gen., and James S. Henderson, Asst. Atty. Gen., for defendant in error.
There having been considerable delay in the disposition of this cause here, fairness justifies the statement that it only came within the individual responsibility of the present Chief Justice a short time ago and was assigned to the writer May 1 last.
Plaintiff in error, hereinafter referred to as defendant, was found guilty of murder in the first degree and, in conformity with the jury's action, was sentenced to life imprisonment. To review that judgment he prosecutes this writ and assigns twenty-four alleged errors. Many of these are so wholly unsupported as to require no notice. The others are fairly condensed as follows: (1) The evidence does not support the judgment; (2) Defendant was compelled to give evidence against himself; (3) The prosecuting attorney cross-examined his own witness; (4) Exhibit B was erroneously admitted; (5) Evidence of an experiment was erroneously admitted; (6) The court did not properly instruct the jury (7) The district attorney indulged in prejudicial argument to the jury.
A brief recital of facts is essential to an understanding of these assignments and our conclusions thereon. The following are either undisputed or established by such evidence as amply supports the verdict. There are 240 pages of the record, a typewritten abstract, of little assistance as such, of 113 pages, and more than 100 pages of briefs. The story was presented piecemeal, and neither side has seen fit to put it together in any logical order. That task has been left entirely to us.
About 8:00 p.m. on June 22, 1937, George Carnes was shot at his filling station in Walsenburg in an attempted holdup. He ran from the station a few steps, staggered back and fell in the doorway. A physician and an officer were promptly called and found him unconscious. He was taken to a hospital where he died early the following morning. Meantime, having regained consciousness, he discussed the occurrence with several persons, but did not identify his assailant. Witnesses saw one, apparently the murderer and who resembled defendant, run from the station. The next day defendant said to an acquaintance, 'I killed a man last night.' About a week later he repeated that statement as a part of a threat against another whom he engaged in a physical encounter. Thereafter he went to the police station with the avowed intention of giving himself up, but was taken out by his sisters. On the dresser in his room was found a box of cartridges, of the same character as that used to kill Carnes, from which several were missing. To a fellow prisoner in jail he stated, 'I killed Carnes.' When arrested near Eastland, Texas, where he was going under the name of Shaw, he neither admitted nor denied the charge against him, although engaging in a conversation about it which logically called for some statement. On trial his chief defense was an alibi, i. e., that he was in a hotel in Walsenburg listening to a broadcast at the time of the shooting. His mother and sister asked a state's witness to so testify. During the broadcast, to which defendant and others were listening, defendant and one Dan Matteo left and drove in an automobile to the vicinity of the Carnes filling station. There defendant left the car, telling Matteo that he would return immediately. He did so shortly, and they drove back to the hotel. The assassin was a man of peculiar size and physical characteristics and had unusual eyes. Defendant did not take the stand but was, of course, present at the trial and observed by the jury, and walked across the courtroom at the request of a witness who thereby identified his appearance with that of the murdered. His alibi was well supported but there was sufficient evidence to contradict it.
(1) It thus appears the verdict was amply supported. This is one of the strongest cases justifying the rule that we will not reverse where disputed facts are supported by conflicting testimony because those who hear and see the witnesses constitute the only competent tribunal to find the truth and the trial judge is always present to correct any evident error or abuse in the discharge of that duty by the jury. This record seethes with palpable perjury, particularly on the subject of alibi. It admits of no explanation or reconciliation. On which side was falsehood and on which truth we leave to the judgment of those vested by law with the power and obliged by their oaths to resolve the question.
(2) A state's witness who had seen the killer apparently fleeing just after the fatal shot was fired described his appearance. Thereupon the district attorney asked defendant to stand and the witness asked him to walk, both of which he did. This, it is now argued, constituted a compulsion of defendant to give evidence, and was a violation of his constitutional right. It seems the law is otherwise. Whatever the rule, it is clear that where, as here, the exhibition was simply on request, not order, was voluntary, and no objection was made, error cannot be predicated thereon. 16 C.J., § 1100, p. 568; 22 C.J.S., Criminal Law, § 652.
(3) The witness Matteo told the story of his trip with defendant as above outlined, without variation, on at least five different occasions, in the hearing of different people, and signed a written statement, Exhibit B, to the same effect. On the stand for the People he admitted all this, admitted that he had not been bribed, coerced, cajoled, threatened, or even urged to do so, but now asserted that it was false in its entirety and that defendant never left the broadcast until it was finished, the theory being that the killing must have taken place during that period. Thereupon the district attorney sought and obtained permission to cross-examine on the ground of surprise, and did so. In such case cross-examination is proper and almost imperative, and it cannot be disputed...
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