Kolkman v. People

• Citation: 300 P. 575,89 Colo. 8
• Decision Date: 11 May 1931
• Docket Number: 12651.
• Parties: KOLKMAN v. PEOPLE.
• Court: Supreme Court of Colorado

300 P. 575

89 Colo. 8

KOLKMAN v. PEOPLE.

No. 12651.

Supreme Court of Colorado, En Banc.

May 11, 1931

Error to District Court, Alamosa County; Jesse C Wiley, Judge.

John Kolkman was convicted of grand larceny, and he brings error.

Affirmed.

BUTLER and HILLIARD, JJ., dissenting.

S.D. Crump, of Denver, and James P. Veerkamp, of Monte Vista, for plaintiff in error.

John S Underwood, Atty. Gen., and Sidney P. Godsman, Asst. Atty Gen., for the People.

ALTER J.

John Kolkman, Roy Kolkman, J. B. Morrison, and William Morrison, fathers and sons respectively, were jointly charged with the crime of grand larceny. The court granted the Morrisons a separate trial. Upon the trial of the Kolkmans, John was convicted and sentence pronounced, while the jury failed to agree upon a verdict as to Roy. John Kolkman, who will hereinafter be referred to either by name or as defendant, prosecutes this writ, seeking a reversal because of two alleged errors occurring during the proceedings, i. e. (1) Refusal of the trial court to grant his motion for a separate trial, (2) the trial court's comments to the jury.

The record discloses that on February 14, 1929, an information was filed in the district court, and the capias issued thereon was made returnable at the March, 1929, term of court; it also shows the apprehension of the Kolkmans, and the giving of bonds for their appearance; on March 10, 1930, the Kolkmans filed their verified joint motion to disqualify the trial judge, which motion was on that day denied; on March 21, 1930, the Kolkmans filed their joint motion to quash the information, which motion was also on that day denied; on March 21, 1930, the Kolkmans filed their joint motion for a continuance, which motion was supported by their joint affidavit and was granted, and the case set for trial on April 14, 1930. On March 21, 1930, the Kolkmans each verified separate motions for separate trials, which motions were identical in every respect, except as to the name of the moving party, but which were not filed until April 14, 1930, just as court had convened for the trial of the Kolkmans. The motions were denied, and the trial followed immediately. The record also discloses that the Kolkmans were represented throughout the entire proceedings by counsel who represent John in this court.

1. The pertinent parts of the motions for a separate trial are:

'1--That there will be evidence offered on behalf of the People which will not and does not relate to the reputation of this defendant, but which will be material and admissible against said defendant, John Kolkman, if tried jointly with this defendant, but which would be immaterial, incompetent and inadmissible as to this defendant, and which would be prejudicial to his rights.

'2.--That evidence will be offered on behalf of the People at the trial of this case which will be highly prejudicial to this defendant and which will be wholly incompetent and irrelevant as to this defendant, but which will be material and competent as against said John Kolkman, and which prejudicial evidence will necessarily reach the ears of the jurors, whereby the constitutional rights of this defendant to an impartial trial to a jury will be violated and the liberty of this defendant jeopardized without authority of law, and this defendant is informed and, therefore, alleges that it is the intent and purpose of the district attorney to offer in evidence certain statements, confessions, conversations and acts of the defendants, J. B. Morrison and William Morrison, and other witnesses and alleged acts, statements, conduct and conversations of defendant, John Kolkman, not made or done in the presence of this defendant or participated in by him, all of which will be competent and material evidence as against the defendant, John Kolkman, but not as against this defendant, and that certain documents, letters, papers and other written evidence will be competent as against defendant John Kolkman, but not as against this defendant, will be offered in evidence to the great prejudice of this defendant; that this defendant cannot more definitely advise the court as to what the testimony to be offered by the People and which may or will be competent as against John Kolkman, and wholly incompetent and prejudicial as to the defendant, will be, and this moving defendant says that if he is compelled to proceed to trial under the information filed herein and in this case upon a joint trial of the two remaining defendants (while he is wholly innocent of the charge filed against him) he will be greatly prejudiced and his constitutional rights will be violated and his right to a separate trial under the law of the land and the statutes of the State of Colorado will be dented.'

We have held that, unless the bill of exceptions discloses the admission of prejudicial evidence, no error is committed in denying a motion for a severance. Stone v. People, 71 Colo. 162, 167, 204 P. 897; Sarno v. People, 74 Colo. 528, 531, 223 P. 41.

We have also held that the motion for a severance, or the affidavit supporting the same, must set forth the incompetent and prejudicial evidence so as to advise the trial court in determining the question of granting or denying the motion. Robinson v. People, 76 Colo. 416, 419, 232 P. 672; Garcia v. People, 88 Colo. 267, 295 P. 491.

The defendant seeks to avoid the rule announced in the Robinson and Garcia Cases, supra, by alleging in his verified motion for a separate trial that he 'cannot more definitely advise the court as to what the testimony to be offered by the People and which may or will be competent as against Roy Kolkman, and wholly incompetent and prejudicial as to the defendant, will be,' and, of course, if the truth of this statement is borne out by the evidence offered at the trial, the motion for a severance would not be insufficient because of defendant's failure to do the impossible.

The serious question raised by the assignment of errors relates to the admission of the evidence of witnesses J. B. Morrison, William Morrison, and one Denton, with reference to acts, conversations, and admissions of Roy Kolkman when defendant was absent.

The evidence on behalf of the people was that in January, 1929 John Kolkman was at Morrison's house, near which lived a man named Burson, whose hogs were in a field near the Morrison house; defendant inquired of J. B. Morrison as to the ownership of the hogs, and was told to whom they belonged, and then defendant made the remark, 'Why not let's get these hogs,' to which Morrison replied, 'Well we would get into it, would we not?' defendant replied, 'Why no, we can take these hogs and take them up to my place and butcher them and nobody will ever know what went with them.' Morrison further testified that about February 4, 1929, at a certain public sale, he had a conversation with defendant and Roy Kolkman with reference to the theft of the hogs, and, in the evening of the same day, the Kolkmans came to his place, and there and then it was determined between witness and the Kolkmans that the hogs should be stolen during the night and taken in the Kolkmans' truck to defendant's ranch, where they would be butchered next day, and the pork would be equally divided between witness, defendant, and Roy Kolkman; that pursuant to this plan, the hogs were stolen, trucked to the Kolkman ranch, and butchered the following day, and in the butchering, witness, his son, defendant, and others participated, but before the division could be made, the officers and the owner of the hogs took the pork out of defendant's possession. After the pork had been discovered, and that very night, John and Roy Kolkman went to the house where witness resided, and there, in the presence of William Morrison, entered into a discussion and formulated plans for evading arrest and conviction. Following this conference, witness was taken by defendant and Roy Kolkman to a farm where a man by the name of Pottsberg lived, and there it was stated by both defendant and Roy Kolkman that they had all been involved in the theft of Burson's hogs, and that the sheriff was after witness (J. B. Morrison) who also stated: 'He was trying to get me out of the way so they could lay the blame on me until he could get it fixed up.' Roy and defendant left witness at Pottsberg's house, and they said 'they would get somebody down there to get me away from there the next morning.' The next morning one Stevenson came to Pottsberg's and took witness to Aguilar and delivered to him $500, which according to previous arrangement between him and the Kolkmans, was to be sent with the man who came to move witness out of the country. Witness was left at Aguilar, where he remained for several days, when John Kolkman came to see him and inquired what he wanted, and the money witness had received having been lost or stolen, he replied: 'I told him I wasn't going to leave until I got to see my wife and I had to have some money, they would have to get me some money to get away on, leave on.' Defendant then left for his home and in two or three days returned to Aguilar with witness' wife, and after witness had conversed with her a few moments, defendant said, 'We better get out of here because the sheriff is liable to be here any minute.' During the conversation between witness and defendant at Aguilar, defendant, according to witness, stated, 'Him and Roy was to take my cattle and finish wintering them and summer them free of charge and I was to stay out of the way till they could get the thing straightened up, make it look like I was the guilty party and they would buy the prosecuting attorney off and Burson would get the thing straightened up so I could come back and it would be straightened for all of us.' ...