Ives v. People
| Decision Date | 03 June 1929 |
| Docket Number | 12327. |
| Citation | 86 Colo. 141,278 P. 792 |
| Parties | IVES v. PEOPLE. |
| Court | Colorado Supreme Court |
Rehearing Denied June 17, 1929.
Error to District Court, City and County of Denver; George F Dunklee, Judge.
Edward Ives, alias Eddie Ives, was convicted of first degree murder and he brings error.
Affirmed.
Elson H. Whitney and Clee E. Hickman, both of Denver, for plaintiff in error.
Robert E. Winbourn, Atty. Gen., and E. J. Plunkett, Asst. Atty Gen., for the People.
Edward Ives, alias Eddie Ives, plaintiff in error, hereinafter referred to as defendant, was charged with the crime of murder of the first degree and upon trial was found guilty as charged; the jury fixing the penalty at death. Judgment was pronounced in accordance with the verdict. To review that judgment, this writ is prosecuted.
There are three assignments of error: (1) That the evidence was circumstantial, and therefore, under our statute, the death penalty could not be fixed; (2) that the evidence was insufficient to support the verdict; and (3) that the motion for a new trial, on the ground of newly discovered evidence, should have been granted.
The facts proven at the trial disclose that the defendant is a white man of the age of 44 years; that he has been confined in penal institutions five times prior to this trouble; that in 1916, while an inmate of the Colorado State Penitentiary at Canon City, he became acquainted with a negro named Hill who was also an inmate of that institution; that Hill had been convicted several times for serious law violations, some of which involved the use of firearms; that Hill came to Denver on the evening of November 21, 1928, having been just previously employed by the Union Pacific Railroad company as a laborer; that when Hill arrived in Denver he accidently met the defendant; that he and the defendant spent some time together drinking intoxicating liquors; that on November 22, 1928, the defendant and Hill were together, and, during the early evening, at the defendant's house, had procured the .45 automatic pistol afterwards used in the murder of Officer Ohle at 2333 Curtis street in the city of Denver; that later in the evening the defendant and Hill were walking about Denver, endeavoring to locate a place they could rob and thereby secure money with which to buy liquor; that after considerable traveling, it was decided that they should rob a drug store on Champa street; that they entered the drug store and robbed it, the defendant holding the gun on the proprietor and his wife; that immediately after the robbery the defendant and Hill went to a house occupied by a Mrs. Reese; that this house was one in which liquor laws were violated, and where assignation was practiced; that it was a rendezvous for the lowest type of the negro race; that Hill had spent the previous night there with some prostitute, and was slightly acquainted with Mrs. Reese; that Mrs. Reese permitted Hill to bring the defendant into her house, and immediately procured liquor for them; that there were other negroes there at the time the defendant and Hill arrived, and these joined the defendant and Hill in their drinking; that the defendant, at the time he entered the Reese house, was carrying the automatic pistol with which Officer Ohle was shot, and for whose murder the defendant was tried; that after the 'party' at Mrs. Reese's house had continued for an hour and a half, the participants were alarmed by the announcement that officers were raiding the place; that all of the members of the 'party' sought a place of concealment; that shortly Officer Ohle came into the dining room, where the 'party' had been in progress, and began to look for and find the participants, and to line them up in the dining room; that in his search for those concealed in the house, he found one Mosley in the bedroom just off the dining room, and brought him into the dining room; that Officer Ohle, from his conduct and utterances, assumed that some one was in the bedroom under the bed, and he accordingly ordered that person to come out, but his order was not obeyed; that he re-entered the bedroom, stooped to look under the bed, and was shot, and, as a result thereof, died almost instantly; that when the shooting began, a brother officer named Evans came upon the scene, was shot, and has since died, although not as a direct result of the wound received at that time; that Mrs. Reese, the proprietress of this dive, was also shot, and died shortly as the result of her wound; that immediately after the shooting the defendant and Hill went to the home of the defendant's mother; that while on their way there, they encountered a Mexican whom they proceeded to 'holdup,' and again the defendant was the one who held the gun and used it unnecessarily in assaulting the Mexican; that the defendant was arrested in the early morning of November 23, 1928, at his mother's home, and under his pillow was found loaded the automatic pistol which was used in the murder of Officer Ohle. This much of the evidence is not contradicted.
The people contended that the murder of Officer Ohle was committed by the defendant, and the jury which tried the case must have believed the people's witnesses in order to have returned the verdict which it did.
Those of the people's witnesses, who testified as to the whereabouts of the defendant during the shooting, placed him in the bedroom from which the shots were fired that killed Officer Ohle. Some of these witnesses testified positively that the defendant was under the bed; others that he entered the bedroom; and others testified that they saw him coming from the bedroom brandishing an automatic pistol. All of those who testified credit the defendant with remarks that clearly indicate he was the one who fired the shots, but none testified that he actually saw the defendant pull the trigger or hold the gun while shooting.
The defendant denies that he fired the shots that killed the officer, but says that when he and Hill entered Mrs. Reese's house he had the pistol; that after they had been there some time, Hill 'kicked' him under the table, and bending over, whispred for the defendant to hand him the pistol; that he complied, and from that time on, and during the raid at which the shooting occurred, the pistol was in the possession of Hill; and that he (the defendant) was unarmed. The defendant also testified that he did not enter the bedroom; that he was hiding behind some curtains in the dining room, and, while the raid was in progress, and without seeing any officers, he walked down the hallway, through the front door, and to the sidewalk, and was outside when the shooting occurred; that Hill came out of the Reese house shortly after the shooting, and handed the pistol to the defendant; that it was hot and empty; that when the defendant arrived at his mother's home, he reloaded it and put in under his pillow.
1. The first assignment is that the evidence upon which this defendant was convicted is entirely circumstantial, and therefore the death penalty could not be fixed. Section 6665, C. L. 1921, so far as pertinent to this question, reads as follows:
It therefore becomes necessary for us to determine whether or not the defendant was convicted on 'circumstantial evidence alone,' and for this purpose we shall quote from the testimony of those witnesses who were actually present at, or just before, the shooting.
Della Smith, a roomer at the Reese house, testified in part:
* * *'
On cross-examination, the same witness testified:
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