Henwood v. People

• Decision Date: 08 July 1914
• Docket Number: 8162.
• Citation: 57 Colo. 544,143 P. 373
• Parties: HENWOOD v. PEOPLE.
• Court: Colorado Supreme Court

143 P. 373

57 Colo. 544

HENWOOD v. PEOPLE.

No. 8162.

Supreme Court of Colorado, En Banc.

July 8, 1914

Rehearing Denied Oct. 5, 1914.

Error to District Court, City and County of Denver; Chas. C Butler, Judge.

Harold F. Henwood was convicted of murder in the first degree, and he brings error. Affirmed.

John T. Bottom and Harry L. Lubers, both of Denver for plaintiff in error.

Fred Farrar, Atty. Gen., and Frank C. West, Asst. Atty. Gen., John A. Rush, Dist. Atty., and Charles T. Mahoney, Deputy Dist Atty., both of Denver, for the People.

GABBERT J.

May 24, 1911, plaintiff in error, whom we shall hereafter designate as 'defendant,' shot and killed Sylvester L. Von Phul. For this homicide an information was filed May 31, 1911, charging him with murder. George E. Copeland, a bystander, taking no part whatever in the difficulty between the defendant and Von Phul, was struck and killed by some of the shots fired by defendant at Von Phul, and June 1, 1911, an information was filed charging defendant with the murder of Copeland. Defendant was arrested, committed without bail, and arraigned under both of these informations and pleaded not guilty. For the killing of Copeland he was tried and found guilty of murder in the second degree, and sentenced to the penitentiary for life. He brought that case here for review, and the judgment was reversed, and the cause remanded for new trial. Henwood v. People, 54 Colo. 188, 129 P. 1010.

A second trial of the case resulted in a conviction of murder in the first degree and sentence of death, and it is this judgment which is before us for review. The defendant was not brought to trial under the information charging him with the murder of Von Phul, and in February, 1913, and prior to the date the case charging him with the murder of Copeland was tried the second time, he filed a motion to be discharged in the Von Phul case, based upon the provisions of section 2926, Revised Statutes 1908, which are as follows:

'If any person shall be committed for any criminal or supposed criminal matter, and not before the expiration of the second term of the court having jurisdiction of the offense, the prisoner shall be set at liberty by the court, unless the delay shall have been on the application of the prisoner. * * *'

The motion was granted and the defendant set at liberty in that case. Thereafter defendant filed a plea of autrefois acquit in the Copeland case. On motion of the district attorney certain portions were stricken. The defendant elected to stand on his plea as then presented. The district attorney then demurred to the plea upon the ground that it was not sufficient in law to preclude the people from prosecuting; that it did not show that defendant was acquitted of the crime of killing Von Phul, and shows that the killing of Copeland was a separate and distinct offense from the crime charged in the information charging him with the murder of Von Phul. The demurrer was sustained, and this ruling is assigned as error.

The plea was to the effect that the killing of Von Phul and the killing of Copeland constitute one and the same offense, on the theory that all the shots fired by defendant were fired at Von Phul with the intention that they should strike him and none other, and that setting him at liberty in the Von Phul case was equivalent to an acquittal in that case, and hence barred a prosecution of the offense as charged in the Copeland case. Generally speaking, the plea of autrefois acquit is a plea by the defendant that he has been formerly tried and acquitted of the same offense charged in the information, to which the plea is made. Such a plea when sufficient and established is upheld by virtue of the provisions of our Bill of Rights, and the principle of the common law to the effect, that a person shall not be twice put in jeopardy for the same offense. Conceding, but not deciding, that the plea alleged facts from which it appears the crimes charged in the two informations constitute one and the same offense, we will consider the contention on behalf of defendant that setting him at liberty in the Von Phul case was equivalent to an acquittal by a jury, or barred a prosecution for the murder of Von Phul, and was therefore a bar to the prosecution for the murder of Copeland. The proceeding setting the defendant at liberty in the Von Phul case was in no sense a trial on the merits; neither does it appear therefrom that he has been placed in jeopardy in that case. It was not the purpose of our statute to enable the guilty to escape, but to prevent unnecessary delays on the part of the prosecution, so that the utmost which can be claimed for the statute, generally speaking, is that it was thereby intended to give effect to that provision of our Bill of Rights which guarantees one accused of a criminal offense a speedy trial, and therefore, when one charged with a crime brings himself within its provisions, he is entitled to be set at liberty, and cannot afterwards be committed or held for the same offense, when charged therewith in a second indictment or information.

The statute, however, must be construed and applied in the light of the particular facts presented, when the effect of setting one at liberty under its provisions is involved, so that his rights thereunder will be fully preserved and not result in the miscarriage of justice. Turning to the plea, we find it is there alleged: That on May 31, 1911, an information was filed charging defendant with the murder of Von Phul; that to this information he pleaded not guilty, and the case was set for trial June 19, 1911; that June 1, 1911, an information was filed charging him with the murder of Copeland, to which he pleaded not guilty, and the cause was set for trial June 19, 1911; that this latter cause was tried with the result that defendant was convicted of murder in the second degree; that he sued out a writ of error to the Supreme Court, and in due course the judgment was reversed and the cause remanded for a new trial; and that thereafter the defendant was set at liberty under the information charging him with the murder of Von Phul by virtue of section 2926, Revised Statutes 1908, as above noted. Facts are then alleged which it is claimed establish that the offenses charged in the two informations constitute one and the same crime. It thus appears, adopting the theory of the plea, that thereby it is shown the defendant was charged in the two informations with the same offense, that he was brought to trial and prosecuted therefor the in Copeland case within the time fixed by the statute. In such circumstances he has been prosecuted in strict conformity to the statute, according to his own theory, for the murder of Von Phul, by the prosecution of the Copeland case, and hence setting him at liberty in the Von Phul case cannot and does not operate to bar the prosecution of the information charging him with the murder of Copeland. In our opinion the ruling of the trial court in sustaining the demurrer to the plea is correct. In passing upon this question it must be borne in mind we have not decided that from the plea it appears the informations constitute one and the same offense, or that by setting him at liberty in the Von Phul case he could not be prosecuted for the offense charged in that case under a second information for the same offense; but, assuming that the contention of his counsel in this respect is correct, and also assuming that they are correct in their claim that by the plea it appears the informations charge the same crime, we base our conclusion that setting him at liberty in the Von Phul case did not operate to prevent the prosecution of the case at bar, for the reason it appears from his plea that he has been diligently prosecuted as the statute requires for the offense with which he was charged, by the information in the Von Phul case, and therefore the statute is not applicable to the facts presented by the plea or the question sought to be raised thereby.

Subsequently to overruling his plea, the defendant applied to the court for a commission to take the deposition of a witness in his behalf, which was denied. This ruling is assigned as error. The witness resided without the state. It appears that on May 8, 1913, the defendant applied for a continuance of the case to May 26, 1913, in order to have time to take the deposition of a witness named, or ascertain the whereabouts of others named in the application, and have them personally present at the trial. The application for continuance was granted. On May 28th, the day the cause was set or called for trial, the defendant applied to the court for a commission to take the deposition of one of the witnesses named in the application, and it is the ruling denying this application of which complaint is made. Without expressing any opinion on the right of a defendant in a criminal action to take the deposition of a witness without the state, we think the ruling was right upon the ground that the application was not made in apt time.

The defendant moved to quash the jury panel, because the members were selected and summoned by the jury commissioner under the act of 1911 (Laws 1911, p. 479). The motion was denied. It is claimed the act is local and special, and contravenes the constitutional provisions inhibiting special laws. In our opinion neither this objection nor any others urged in support of the motion are tenable.

Error is assigned on questions by the district attorney in his examination of a juror. The prime purpose of the examination of a juror on his voir dire is to ascertain whether if selected he will be fair and impartial and render a verdict according to the evidence and the law, guided by the instructions of the court. For this...