Hampton v. People, 19203

• Citation: 146 Colo. 570,362 P.2d 864
• Decision Date: 29 May 1961
• Docket Number: No. 19203,19203
• Parties: Charles HAMPTON, Plaintiff in Error, v. PEOPLE of the State of Colorado, Defendant in Error.
• Court: Supreme Court of Colorado

Page 864

362 P.2d 864

146 Colo. 570

Charles HAMPTON, Plaintiff in Error, v. PEOPLE of the State of Colorado, Defendant in Error.

No. 19203.

Supreme Court of Colorado, En Banc.

May 29, 1961.

Rehearing Denied July 3, 1961.

Charles Hampton pro se.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., Robert G. Pierce, Asst. Atty. Gen., for defendant in error.

McWILLIAMS, Justice.

Hampton, Colbert and Reynolds were jointly charged with so-called aggravated robbery and conspiracy to commit the same. Colbert and Reynolds pleaded guilty and were sentenced to the state penitentiary. Hampton pleaded not guilty but a jury of his peers adjudged him guilty of both charges. Hampton was also sentenced to the state penitentiary and he alone seeks reversal of the judgment and sentence of the trial court.

In his motion for a new trial Hampton alleged that the trial court committed reversible error in the following respects: (1) That the evidence against him was insufficient to sustain the verdict and that his motion to dismiss for lack of evidence should have been granted, and in particular it is urged there was no evidence tending to implicate Hampton in the robbery, except his confession (!) and further that there was a fatal variance between the information and the proof as to the ownership of the money taken in the robbery; (2) that the trial court improperly overruled Hampton's motion for a mistrial interposed when one of his witnesses on cross-examination testified that Hampton had 'helped' him in the burglary of Saltwater Dumas' restaurant; and (3) that the trial court committed error in receiving into evidence certain exhibits, namely three Busley money bags and a certain Japanese luger.

Careful examination of the record convinces us that all of these assignments of error are without merit. However, in order to demonstrate such it becomes necessary to briefly outline the evidence adduced at the trial.

It is undisputed that Hampton, Colbert and Reynolds entered a Busley Super Market on West 8th Avenue in Denver at about 7 o'clock P.M. on December 18, 1957. At gunpoint Colbert advised all that 'this is a stickup' and ordered Trumble, the manager of this particular super market, to open the safe. Trumble complied with this command and delivered to Colbert over $4,000. Reynolds with the assistance of a pointed gun also emptied a cash register. Hampton was only some few feet away from Reynolds when this particular incident occurred. It is equally undisputed that Hampton himself displayed no gun in the super market, nor did he himself say anything nor take any money. However, on signal all three fled the store together. Moments later and some six blocks away from the Busley Super Market police officers stopped an automobile in which there appeared to be only one occupant, namely the driver! It was shortly thereafter determined that the driver of this vehicle was Colbert and upon closer inspection Hampton was found lying on the floor in the front seat and Reynolds on the floor in the back seat. Three money bags which were identified as similar to the ones used by Busley were also found on the floor of the car, and these contained the loot only recently taken from the market. When first observed by the police officers Hampton was fumbling under a blanket on the front seat. It later developed that the Japanese luger, referred to, supra, was under this blanket. Hampton made admissions to the police in which he admitted that along with Colbert and Reynolds he helped plan the robbery to the end that together they 'caused' the store at about 3 o'clock P.M. on the day of the holdup; that he knew when he entered the store that a holdup was to be staged; and that he most certainly expected to get his one-third split of the loot. Initially he stated that he took the Japanese luger into the store but that it was hidden under his coat. Later, however, he changed his story on this particular and stated that because the gun was unwieldy he left it in the car during the holdup and that when arrested he was trying to locate the gun under the blanket and intended to wipe off his fingerprints. A few days after the robbery Colbert, Reynolds and Hampton jointly made a detailed written confession which each signed as being a truthful account of the robbery. In this Hampton confessed that he participated in the robbery in the manner and to the extent outlined, supra. The foregoing was established by the People in their presentation of their evidence.

At trial Hampton repudiated his admissions and confession and testified that although he entered and left Busleys with Colbert and Reynolds, he nevertheless did not know beforehand that a robbery was to be perpetrated. He said he had been deceived into going into the store by Colbert, who said he was going to cash a check and would repay an old debt to Hampton with the proceeds. Colbert and Reynolds each took the stand and corroborated Hampton's testimony.

Without belaboring the point, it should be obvious to all, except possibly Hampton himself, that there is ample evidence to support the guilty verdict returned by the jury. The People in their presentation made a prima facie case of sufficient stature to easily withstand Hampton's motion to dismiss. Hampton's evidence did no more than present a disputed issue of fact to be resolved by the jury. Under such circumstances the verdict of the jury should not, indeed cannot, be disturbed. See Eachus v. People, 77 Colo. 445, 236 P. 1009; Trujillo v. People, 112 Colo. 91, 146 P.2d 896; Gonzales v. People, 128 Colo. 522, 264 P.2d 508 and Schreiner v. People, Colo., 360 P.2d 443.

In connection with the alleged insufficiency of the evidence Hampton also argues that there is no independent evidence tending to corroborate his confession and that standing alone, the confession is not sufficient to warrant submission of the case to the jury. It is true as was stated in Roberts v. People, 11 Colo. 213, 17 P. 637, 639 that 'the prisoner's confession of the crime that be corroborated by other and independent evidence.' However, this Court has repeatedly held that this requirement of other and independent evidence 'need be only slight' and is met if the additional evidence is sufficient to convince the jury that the crime charged is real and not imaginary. See Bunch v. People 87 Colo. 84, 285 P. 766; Williams p. People, 114 Colo. 207, 158 P.2d 447, 159 A.L.R. 509; and Downey v. People, 121 Colo. 307, 215 P.2d 802. In the instant case the 'other and independent evidence,' instead of being only slight is very substantial, both as to quantity and quality. The three money bags and Japanese luger are excellent examples of 'other and independent evidence' which tends to support and give credence to Hampton's confession. Obviously there was no error in receiving these exhibits into evidence, as such was urged by Hampton in his motion for a new trial. See Baca v. People, 139 Colo. 111, 336 P.2d 712.

As an additional corollary of this alleged insufficiency of the evidence Hampton urges that there was a fatal variance between the information and the evidence as to ownership of the monies taken in the robbery. The information is in the language of the applicable statute (C.R.S. '53, 40-5-1) and alleges, inter alia, that the money was forcibly taken 'from the person and against the will of Paul Trumble.' Hampton believes there is a variance in that the monies were actually 'owned' by Busleys and did not belong to Trumble. This contention is without merit. The general rule in this regard is succinctly stated in 77 C.J.S. Robbery § 38c, p. 476:

'* * * it is not necessary to allege that the person from whom the property was taken was the owner thereof, since it is sufficient if it appears from the...