Miller v. People

• Decision Date: 05 July 1921
• Docket Number: 10087.
• Citation: 70 Colo. 313,201 P. 41
• Parties: MILLER v. PEOPLE.
• Court: Colorado Supreme Court

201 P. 41

70 Colo. 313

MILLER v. PEOPLE.

No. 10087.

Supreme Court of Colorado

July 5, 1921

Rehearing Denied Oct. 3, 1921.

Department 1.

Error to District Court, City and County of Denver; Francis E Bouck, Judge.

Ernest Miller, alias Ernest Forster, alias Frank Forster, was convicted of an attempt to rob a mail car, and he brings error.

Reversed.

L. J. Stark, of Denver, for plaintiff in error.

Victor E. Keyes, Atty. Gen., and Charles R. Conlee, Asst. Atty Gen., for the People.

TELLER J.

The plaintiff in error, hereinafter designated as the defendant was convicted of an attempt to rob a mail car on the Union Pacific Railroad at Sandown, about six miles east of Denver. The attempted robbery occurred a little after 9 o'clock p. m. on November 16, 1920. The train was stopped at the station named, and when the engineer descended from his cab he was confronted by a man with a revolver who immediately ordered him to put up his hands. Another man, who kept some distance away from the engine, was implicated in the holdup. The first man mentioned was wounded by a shot fired by one of the brakemen, and one John Lane, or Lame, was afterwards arrested, and identified by the brakeman as the man who held up the engineer.

Lame also was charged with said offense, but died before his trial.

After their arrest the accused were placed in adjacent cells between which a dictagraph had been installed. Stenographers were stationed at a convenient point to hear, through this instrument, what passed between the two prisoners. The case made against the defendant seems to rest very largely upon a conversation reported to have been heard through said instrument. It appears from the record that while the dictograph was in use, and the stenographers listening to hear and take down what passed between the prisoners, one or the other of the prisoners was several times taken from his cell. It nowhere appears in the testimony of these stenographers that they were familiar with the voices of the prisoners, or that they knew of their own knowledge, at the time the reported remarks were made, that they were made by either of the prisioners. The competency of this evidence, therefore, was, at best, very doubtful, and it is far from establishing the guilt of defendant.

The testimony of an experienced physician, who examined Lame, was to the effect that the shot had penetrated his brain, so that he was unable, at least at times, to respond intelligently to questions propounded to him. Any conversation with him would therefore be of little probative value. There is no evidence directly connecting the defendant with the offense; and the matters upon which the state relies to support the conviction, when considered as a whole, do little more than raise a suspicion against him. Under such circumstances, it was vitally important that the case be presented to the jurors fairly, and without any attempt to mislead them.

The defendant's attorney, appointed by the court to defend him, but who does not represent him here, made no argument to the jury, and left the jurors with no help in the analysis of the testimony, and without any suggestion as to what ought to be their reasonable conclusion from the facts in evidence. His short statement to the jury that the facts were before them was regarded by the court as sufficient to entitle counsel for the state to make a second argument to the jury, and he made such argument.

The evidence disclosed that the defendant was working, at the time of his arrest, and had been so working for a few days prior thereto, on the farm of one Schneider, some 16 miles north of Denver. Mr. Schneider testified that on the night of the attempted robbery the defendant came home at about 10 o'clock. Had the jury believed this evidence the...