Johnson v. People
| Decision Date | 23 January 1961 |
| Docket Number | No. 19329,19329 |
| Citation | 358 P.2d 873,145 Colo. 314 |
| Parties | Vernon Lincoln JOHNSON, Plaintiff in Error, v. PEOPLE of the State of Colorado, Defendant in Error. |
| Court | Colorado Supreme Court |
Dickerson, Morrissey & Dwyer, H. Malcolm Mackay, Michael F. Morrissey, Denver, for plaintiff in error.
Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., Robert G. Pierce, Asst. Atty. Gen., for defendant in error.
In the first count of an information filed in the trial court, plaintiff in error, to whom we will refer as defendant, was accused of first degree murder in that he, allegedly, did
'* * * wilfully, unlawfully, feloniously and deliberately and of his premeditated malice aforethought, kill and murder one Raymond J. McMaster * * *.'
A second count alleged that defendant,
'* * * did make an assault upon Nicholas Lenarz, and then and there feloniously and violently, and by force and intimidation, did rob, seize, steal, take and carry away money and personal property from and against the will of said Nicholas Lenarz; and that said Vernon Lincoln Johnson when he so robbed the said Nicholas Lenarz had two confederates, namely, Revilo Robert Sides and Vernon Sides who were then and there armed with dangerous weapons, with intent, if resisted, to maim, wound or kill the said Nicholas Lenarz and any other person, and said Vernon Lincoln Johnson and said confederates did shoot and kill one Raymond J. McMaster with said dangerous weapons in the perpetration of said robbery.'
Defendant was granted a separate trial, upon the conclusion of which the jury returned a verdict on each count of the information finding defendant not guilty of murder as charged in the first count, and guilty of aggravated robbery as charged in the second count. Motion for a new trial was filed and denied. The defendant was sentenced to a term of not less than twenty-five years, to life, in the penitentiary. He is here on writ of error to review that judgment.
Upon the trial of the case the only evidence presented was that offered by the prosecution, the defendant neither taking the stand in his own defense nor offering testimony of other persons.
The evidence thus received established that on the late evening of November 8, 1958, Vernon Sides and his brother Revilo met defendant, a long time acquaintance, in Boulder, Colorado. Defendant was driving a Hudson automobile. At the meeting in Boulder it was agreed that they should meet 'at the airport'. They met as arranged and from the airport drove to The Grange where the car being driven by the Sides brothers was left. One of the brothers transferred a bag of burglary tools which included masks, guns, coveralls and caps for use as disguises, from the Sides car into the trunk of the Hudson belonging to defendant. The three men then drove to the town of Lyons about fourteen miles northwest of Boulder where they planned to commit a burglary. Upon arriving at Lyons the defendant and Vernon Sides got out of the car and looked over a business establishment known as the 'Foothills' with the intent to make it the subject of the contemplated burglary. After spending considerable time investigating the place it was decided that the Foothills was not a very good risk. They got in the car and drove through the town, turned around and started to drive out of town in an easterly direction. However, at the request of Vernon Sides the defendant, who was driving, turned back and took the Sides brothers to the edge of town. Here the brothers got out of the car, removed the bag of burglary tools from the trunk, and, carrying the bag walked some distance down the railroad tracks leading into town. They left the bag of tools in a field across the street from an establishment known as the 'Hideout'. They then proceeded into town where they 'cased' a drugstore and a lumberyard before returning to the field where the bag had been left. They there put on coveralls over their clothing in preparation for the robbery of the Hideout.
Vernon Sides went to the back entrance of the building where he unexpectedly encountered one Mrs. Darner, a cook, and her son who were leaving the premises to go home. It was approximately 3:00 o'clock in the morning of November 9, 1958. At gunpoint Vernon Sides ordered them back into the building where Nick Lenarz, the bartender, and his son were about to close up the place. Vernon Sides took the money from the cash register and a billfold from Lenarz. He then ordered the latter to walk outside with his hands up, turn around and re-enter the place. Revilo Sides who was waiting across the street upon observing this signal hurried over 'to help his brother.' Both men wore masks. The victims were bound with adhesive tape furnished by the holdups. The robbers then left the scene in a Packard automobile belonging to the bartender from whom they took the ignition key. The record does not disclose how much time elapsed between the time defendant let the Sides brothers out of the car and the time of the actual robbery, but from consideration of all that was done in the matter of looking over places to enter it must have been a considerable time.
In the stolen car the Sides brothers drove south toward Boulder, and along the way abandoned the car by the side of the road. They then started hiking through the fields. A short time later they saw the lights of a car approaching on the highway, which Vernon Sides flagged down, and it proving to be defendant in the Hudson car. Revilo joined his brother and the three of them continued toward Boulder in the Hudson with defendant driving. Once in the car the brothers removed the coveralls.
Meanwhile police had been notified of the robbery at Lyons and roadblocks had been set up. Just north of Boulder the Hudson passed a police car parked by the side of the road. Officers McMaster and Grothjan who were manning the car followed the Hudson and signalled for it to stop. Both officers got out. Pursuant to direction from the police, defendant got out of the Hudson and held up his hands. Officer McMaster asked the other officer to cover defendant and he started around in front of the Hudson, at which point he was shot down by Revilo Sides who fired four bullets into his doby causing his death. When the shooting started defendant moved away and officer Grothjan fired a shot over his head and emptied his revolver firing into the Hudson. A voice from the rear said, 'Drop your gun, I've got you covered.' The officer turned quickly, saw defendant near a fence which ran parallel to the highway, and fired his riot gun hitting him in the shoulder. Officer Grothjan then jumped into the ditch alongside the road to reload his revolver. One of the Sides brothers started the Hudson car which moved forward, stalled, started again and was driven off disappearing in a westerly direction. The Sides brothers escaped from the scene but were later arrested. After several days defendant surrendered to law officers and was taken to Boulder. Upon being questioned, his only pertinent statement was that he was driving the car. Revilo Sides, the man who fired the fatal shots, admitted that the district attorney had made him a promise if he would testify, and it was by his testimony that the events leading up to the robbery were placed before the jury.
Bearing directly upon the questions hereinafter considered, it is necessary to refer in detail to the specific testimony of Revilo Sides as a witness for the people concerning what happened between the witness, Vernon Sides and the defendant after it was determined that the Foothills was not a good risk. Revilo Sides testified as follows:
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Concerning what happened after the robbery was committed and after the two admitted participants had been picked up by defendant on the highway leading to Boulder, Revilo testified:
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