Johnson v. People

• Decision Date: 29 July 1963
• Docket Number: No. 20123,20123
• Citation: 384 P.2d 454
• Parties: Vernon JOHNSON, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 454

384 P.2d 454

152 Colo. 586

Vernon JOHNSON, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.

No. 20123.

Supreme Court of Colorado, En Banc.

July 29, 1963.

Rehearing Denied Sept. 3, 1963.

Mellman, Mellman & Thorn, Denver, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., George W. Nicastro, Sp. Asst. Atty. Gen., Denver, for defendant in error.

McWILLIAMS, Justice.

By direct information Vernon Lincoln Johnson, hereinafter referred to either as Johnson or as the defendant, was charged with the unlawful and premeditated murder of Raymond McMaster on November 9, 1958, and in a second count with so-called aggravated robbery from one Nick Lenarz, also on November 9, 1958. Upon trial a jury returned a verdict acquitting Johnson of the murder charge, but convicting him of aggravated robbery. On review this robbery conviction was reversed on the ground that the jury was not properly instructed, and the cause was remanded for a new trial on the robbery count. See Johnson v. People, 145 Colo. 314, 358 P.2d 873.

Upon retrial Johnson was again convicted of aggravated robbery and sentenced to a term of from ten to twenty years in the state penitentiary. By the present writ of error Johnson seeks reversal of this judgment and sentence.

The evidence adduced upon retrial was substantially the same as that presented at the prior trial. The facts and circumstances having already been fully set forth in Johnson v. People, supra, no good purpose would be served by a detailed repetition thereof, and accordingly reference thereto will only be made as may be necessary to an understanding of the various assignments of error.

Before the retrial Johnson asked the trial court to quash the robbery count on the ground that his acquittal on the murder count barred prosecution of the robbery charge under the doctrine of autrefois acquit. This the trial court declined to do, and error is assigned to this ruling.

In Curtis v. United States, 10 Cir., 67 F.2d 943 it was stated that the plea of autrefois acquit is unavailing unless the charge to which it is interposed is precisely the same in law and in fact as the former one relied on under the plea, and that the test as to the identity of the offenses is whether the same evidence is required to sustain each.

In Davidson v. People, 64 Colo. 281, 170 P. 962, it was stated:

'To be sufficient in law the plea of autrefois acquit must be based upon the fact that the matter set out in the second indictment or information is such as would be admissible and sustain a conviction, under the first. * * *

'A test almost universally applied to determine the identity of the offenses is to ascertain the identity, in character and effect, of the evidence in both cases. If the evidence which is necessary to support the second indictment was admissible under the former, related to the same crime, and was sufficient if believed by the jury to have warranted a conviction of that crime, the offenses are identical, and a plea of former conviction or acquittal is a bar.' (Emphasis supplied)

Seiwald v. People, 66 Colo. 332, 182 P. 20, presents a factual situation analogous to the present one. There, Seiwald was charged with the murder of a policeman, the homicide occurring during the course of an attempted robbery of a saloon wherein not only the policeman was killed, but also the proprietor of the establishment, one Lloyd. Upon trial for the murder of the policeman Seiwald was convicted of murder in the second degree. Apparently being dissatisfied with the outcome of that trial, the district attorney later charged Seiwald with the murder of Lloyd. To this later charge Seiwald interposed a plea of former jeopardy, his reasoning being that by only convicting him of second degree murder in connection with the death of the policeman the jury had in effect determined that there was in fact no attempted robbery, i.e., if the killing of the policeman had been perpetrated during an attempted robbery, he would under applicable statute have been necessarily guilty of murder in the first degree. See C.R.S. '53, 40-2-3. In rejecting this argument it was said:

'As to the second ground, the contention of counsel for defendant is that, inasmuch as the verdict of the jury finding the defendant guilty of murder in the second degree only, must have been based on a finding that the killing was not done in an attempted robbery, the question of robbery could not be again tried; and that it was conclusively established that there was no robbery, nor attempt at robbery, when the two persons were killed, it being one transaction.

'We do not agree with these conclusions. Though the homicides were closely related in time, two distinct offenses were committed.'

Applying the foregoing principles to the instant case it is at once evident that the unlawful killing of McMaster and the robbery of Lenarz are not 'precisely the same in law and in fact', but are separate and distinct crimes, even though a part of one continuing criminal transaction. Accordingly, the fact that Johnson was acquitted on the charge of murdering McMaster does not bar his prosecution on the charge of robbing Lenarz.

Upon retrial one Revelo Sides was called by the People as its witness. After being sworn, Sides gave his name and stated that he was a ward of the state penitentiary, but then flatly refused to testify further. Sides was as of that time serving a life sentence in the state penitentiary, and accordingly the trial court was handicapped as to possible punishment which it could impose under its contempt powers for his refusal to testify.

Faced with this turn of events, the district attorney sought to introduce the testimony which Revelo Sides had given as a People's witness in the prior trial. To accomplish this he called the official court reporter, who by the use of his stenographic notes could, and eventually did, testify as to the various questions put to Sides and Sides' verbatim responses thereto. At the prior trial Sides was under oath, and was subjected to cross-examination by counsel for Johnson. Over objection the trial court permitted the district attorney to proceed in the manner just outlined, and error is now predicated thereon.

The general rule at the common law was that where a witness who had testified at a prior trial was unavailable at the time of the second trial, his testimony at the former trial once properly authenticated was admissible in the latter trial. Johnson concedes this to be the rule, but contends that Sides was not 'unavailable', but on the contrary not only 'available' but actually present in court.

A somewhat parallel situation is presented in State v. Stewart, 85 Kan. 404, 116 P. 489, where a witness for the State in a prosecution for murder was physically present at the trial but refused to testify. In permitting the introduction of the testimony given by that witness in a preliminary examination into the charge on which the accused was then on trial, the Kansas Supreme Court said that the true test was not so much the 'unavailability' of the witness, but the 'unavailability' of his testimony and that a witness who--though present--refused to testify is just as surely 'unavailable' as the witness who stepped across a state line to avoid service of a subpoena. We approve of this rationale and hold that under the...