Krutka v. Spinuzzi

• Decision Date: 03 September 1963
• Docket Number: No. 20326,20326
• Parties: John KRUTKA, as Sheriff of Pueblo County, Colorado, Plaintiff in Error, v. Joe SPINUZZI, Defendant in Error.
• Court: Colorado Supreme Court

Page 928

384 P.2d 928

153 Colo. 115

John KRUTKA, as Sheriff of Pueblo County, Colorado, Plaintiff in Error, v. Joe SPINUZZI, Defendant in Error.

No. 20326.

Supreme Court of Colorado, En Banc.

Sept. 3, 1963.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., Matt J. Kikel, Dist. Atty., 10th Judicial Dist., R. Allan Glover, Jon W. Burke, Deputy Dist. Attys., Pueblo, for plaintiff in error.

V. G. Seavy, Pueblo, for defendant in error.

McWILLIAMS, Justice.

By direct information Spinuzzi was charged with the unlawful and premeditated murder of one James Scott. To this charge Spinuzzi pled not guilty, and a jury trial ensued.

Upon trial, after the People had concluded its presentation of the evidence, Spinuzzi moved the court for a directed verdict of not guilty and as reason therefor argued that the evidence was legally insufficient to warrant submission of the matter to the jury and more particularly that there was insufficient evident tending to tie Spinuzzi to the death of Scott. After much argument the trial court eventually granted this motion and the jury by direction of the court returned verdicts adjudging Spinuzzi to be not guilty of murder, be it in the first or second degree, nor of either grade of manslaughter.

Being highly dissatisfied with the outcome of the trial and being of the firm view that the trial judge had committed grievous error, the People at the instance of the district attorney sought a review of the judgment of acquittal by writ of error, as provided by C.R.S. '53, 39-7-27.

Upon review this Court 'disapproved' of the action of the trial court and held, inter alia, that the evidence was amply sufficient to have warranted, indeed to have required, submission to the jury of the charge of murder in the first degree. People v. Spinuzzi, 149 Colo. 321, 369 P.2d 427.

Thereafter, the People filed a petition with the trial court in the original criminal proceeding, seeking a reissuance of the warrant calling for the arrest of Spinuzzi for the murder of Scott. The trial court granted this petition and an alias capias having thereafter issued, the sheriff of Pueblo County, John Krutka, proceeded to rearrest Spinuzzi and confine him in the county jail.

Spinuzzi made prompt application to the trial court for the issuance of a writ in the nature of habeas corpus, contending that he had already been tried and acquitted on the very charge for which he was then being held. The writ issued and in due course the sheriff filed his return, admitting that he was 'imprisoning' Spinuzzi and citing as his authority to do so the fact that he held a warrant duly issued in a criminal proceeding wherein a judgment of acquittal had been 'disapproved' by the Supreme Court because of an error in law, and that 'therefore the original case has never come to rest so as to terminate the original jeopardy.'

Upon hearing, the court directed that the writ be made permanent and ordered that Spinuzzi be discharged from the custody of Krutka. It should be noted, parenthetically, that the judge who heard the application for habeas corpus did not preside at the trial which culminated in a directed verdict of acquittal on the charge that Spinuzzi murdered Scott.

It is Spinuzzi's basic position that at the moment a jury was impaneled and sworn to try him on the murder charge he was placed 'in jeopardy' and that to try him again on the same charge is not only in violation of Article II, section 18 of the Colorado Constitution, which prohibits any person from being 'twice put in jeopardy for the same offense', but also in direct violation of C.R.S. '53, 39-7-27, which states that though writs of error shall lie in behalf of the State to review decisions of the trial court in any criminal case upon questions of law arising upon trial, that nevertheless '[n]othing in this section shall be construed so as to place a defendant in jeopardy a second time for the same offense', and the fact that the judgment of acquittal was subsequently 'disapproved' by this Court does not in anywise alter the situation.

Krutka, in turn contends that this is not a case of Spinuzzi being tried twice for the same offense, and that actually he has not as yet been tried once for this offense--at least not in a trial free from grievous error! Krutka emphasizes the fact that Article II, section 18 of the Colorado Constitution declares, inter alia, that an accused shall not be deemed to have been in jeopardy 'if the judgment be reversed for error in law.' Krutka claims that the judgment of acquittal was, in effect, reversed for an error in law and hence under this constitutional definition of 'jeopardy' Spinuzzi is 'not deemed to have been in jeopardy.'

In our view the trial court was eminently correct in making the writ permanent and discharging Spinuzzi from the custody of the sheriff. Indeed, C.R.S. '53, 39-7-27 in and of itself is virtually dispositive of the present controversy, and this statute is not at odds with Article II, section 18 of the Colorado Constitution when the latter is considered in context. However, reference to certain basic principles may serve to put our immediate problem in better focus.

15 Am.Jur. 46, Criminal Law § 369 states that:

'A person is in legal jeopardy when he is put on trial before a court of competent jurisdiction, on an indictment or information which is sufficient in form and substance to sustain a conviction and a jury has been charged with his deliverance. A jury is said to be thus charged when it is impaneled and sworn.' (Emphasis supplied)

The foregoing test was approved in so many words by this Court in Davidson v. People, 64 Colo. 281, 170 P. 962. In Castner v. People, 67 Colo. 327, 184 P. 387 it was stated that when a court directs a verdict of not guilty, such directed verdict is equivalent to an acquittal and 'will support a plea of former jeopardy.'

A jury having been 'impaneled and sworn', Spinuzzi most definitely was placed 'in jeopardy' on the charge of murdering Scott, unless such is somehow altered by the fact that this Court disapproved of the judgment of acquittal entered by the trial court.

In 2 Am.Jur. 984 to 986, Appeal and Error, §§ 226, 227, appears the following:

'At common law as it existed in the United States, a writ of error was demandable as of right by the defendant in a criminal, as well as a civil, case. However, the right to appeal or error proceedings is now almost wholly conferred by statutory and constitutional provisions. And under the modern practice, with the possible exception of minor infractions, it is elementary that the defendant in a criminal case may institute appeal or error proceedings. A different rule exists as to the state or United States, however.

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'In the absence of a statute clearly conferring the right as a general rule, the state or United States cannot appeal or bring error proceedings from a judgment in favor of the defendant in a criminal case. A few states make exceptions to this rule where an indictment or information is quashed or held bad on demurrer, but in most of the states wherein this exception exists, it is statutory. Statutes have been enacted in a number of jurisdictions, however, conferring the right of appeal upon the state in limited cases. Most of these statutes simply give the state the right of review of the steps preliminary to the trial and before the defendant has been legally put in jeopardy, any statute going so far as to allow the setting aside of a verdict of acquittal being generally held unconstitutional as putting the accused in jeopardy a second time. Thus, under states in some jurisdictions, the state may appeal from a discharge on a motion to quash or dismiss an indictment or information, or a decision to sustain a demurrer thereto, and from the judgment for the defendant on a special verdict or on motion in arrest of judgment. It is also provided by statute in some states that an appeal may be taken by the state from a verdict of acquittal in misdemeanor cases; and there are statutes permitting a state to appeal from a verdict of acquittal in felony cases for the purpose of obtaining a decision on the correctness of a ruling made by the trial court, but not for the purpose of affecting the verdict in any way.' (Emphasis supplied)

In 15 Am.Jur. 96, Criminal Law, § 438, it is stated:

'From the standpoint of a second prosecution for the same offense it may be observed here that it is a settled doctrine that after jeopardy has attached in a criminal case, a writ of error does not lie in behalf of the state to reverse a judgment in favor of the defendant, except under and in accordance with statutory provisions, whether the judgment was rendered as a verdict of acquittal or on the determination by the court of a question of law, because otherwise the defendant would be subject to retrial after acquittal and would thereby be put twice in jeopardy for the same offense.'

As an addendum to the foregoing quotation, in the 1963 Cumulative Supplement to 15 Am.Jur. at page 24, appears the following:

'Likewise, it seems that generally any statute going so far as expressly, or by necessary inference, to grant the state a right of appeal from an acquittal in a criminal case, and thus subject the defendant to the possibility of another trial would according to the weight of authority, be unconstitutional as putting the accused in jeopardy a second time, this being particularly true in cases in which sentence of imprisonment or death may be imposed. A few cases, however, adopt the view that the jeopardy involved is single and continues until a result is reached that is free from error. Thus, a statute which, by permitting the state to appeal in a criminal case, operates to subject the accused to a second trial on the same indictment does not expose him to double jeopardy.' (Emphasis supplied)

One of these 'few cases * * * permitting the state to appeal in a criminal case * * * [and] to...