Miller v. People

• Decision Date: 16 February 1960
• Docket Number: No. 18895,18895
• Citation: 349 P.2d 685,141 Colo. 576
• Parties: Keith MILLER, Plaintiff in Error, v. PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 685

349 P.2d 685

141 Colo. 576

Keith MILLER, Plaintiff in Error, v. PEOPLE of the State of Colorado, Defendant in Error.

No. 18895.

Supreme Court of Colorado, En Banc.

Feb. 16, 1960.

Rehearing Denied March 14, 1960.

E. F. Conly, Denver, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., Gerald Harrison, Asst. Atty. Gen., for defendant in error.

KNAUSS, Justice.

Plaintiff in error Miller herein referred to as defendant or by name, and a codefendant (Taylor) were convicted of murder in the first degree and sentenced to life imprisonment.

Miller and Taylor were charged with the murder of one George Mashburn, allegedly committed at about 3 P. M. on December 20, 1957 during the holdup of a Tavern in Denver. The co-defendant (Taylor) has not sought review of his conviction.

It is admitted that the crime was committed by two masked men, one a small white man, the other a tall colored man. Defendant's counsel in his brief states: 'The actual shooting was done by the smaller man during the course of a scuffle with the deceased and the deceased was again shot after he had fallen to the floor. After the shooting the various persons present in the tavern were herded to the 'Cooler' in the back of the establishment, except for Loyas Harril Dean, the owner of the tavern who was removed from the Cooler and forced to deliver money to the criminals and then was returned to the Cooler.'

It is undisputed that the deceased came to his death as the result of two twenty-five caliber bullets fired from a pistol in the hand of the white man.

Defendant seeks reversal on the following grounds: That the trial court erred in admitting in evidence certain exhibits obtained 'as a result of illegal search and seizure'; in admitting other irrelevant exhibits, and in refusing to direct a verdict of not guilty as to defendant.

Co-defendant (Taylor) was identified as the tall colored man and Miller as the small white man who participated in the crime.

The chief dispute here and at the trial centers upon the identification of Miller by the bartender Dean. Counsel for defendant in his brief frankly states: 'Obviously, if the testimony of Loyas Dean [the bartender] were believed it would constitute such direct, complete and damning evidence, as to have required no further testimony at the trial from any witness, and a fortiori, to require no further discussion here. However, it is submitted that viewing such testimony in the most favorable light possible it would not only not be believed, but is, in fact, completely unbelievable as contrary to all human experience and conduct, and therefore violative of the rules of logic upon which the law must sustain itself.' This witness testified that he had known Miller for some six years; had seen him on numberless occasions and that he recognized Miller as the man who did the shooting. it is here contended that the testimony of this witness was unworthy of belief. Any inconsistency goes merely to the credibility of this witness and in connection with other evidence in the case was a matter solely for determination by the jury. 58 A.J. p. 490, § 862; 23 C.J.S. Criminal Law §§ 1174-1175, p. 716.

Complaint is made of the testimony of a pawnbroker showing defendant Miller owned a twenty-five caliber revolver a few months prior to the homicide. We find the objection without merit.

Here testimony was introduced that defendant had owned a twenty-five caliber pistol (a rather uncommon weapon) which had been pawned and redeemed by him on two occasions, and the undisputed fact that deceased was killed by two twenty-five caliber bullets, which eye-witnesses testified were fired by the white holdup who used a small revolver capable of fitting in the palm of the hand. The admission of this testimony rested in the sound discretion of the trial court and we find no prejudicial error in its admission. In State v. Nichols 179 Minn. 301, 229 N.W. 99, the court said: 'The crime charged was that defendant, aided by two others and being armed with a loaded revolver, robbed one Ernest H. Porter * * * on October 3, 1928. The state, over objections by defendant, was permitted to show that on two other occasions, in November, 1927 and July, 1928, at places distant from Minneapolis, the defendant had in his possession a revolver similar to the one claimed to have been used at the time of the robbery. * * * The defendant contends this evidence was too remote * * *. As to its being remoted, the trial court had discretion to receive or not receive this evidence and did not abuse its discretion.'

Another witness who knew defendant testified that at about 3:15 P.M. on the day of the homicide he saw defendant come down the alley and run into the garage in the rear of the house where defendant lived and where the officers later found a pair of blue tennis shoes. Objection was made to the admission in evidence of the blue tennis shoes so found. At least one witness testified that the small white man was wearing a pair of blue tennis shoes at the time of the holdup.

In People v. Allen, 17 Ill.2d 55, 160 N.E.2d 818 there was evidence that a person committing a burglary wore gloves. Later some gloves were found in a field into which the defendant was seen running. The court there held that the gloves were sufficiently connected with the crime to be admissible.

With reference to the assignment that the trial court erred in not directing a verdict in favor of defendant, we need only refer to the statement above quoted from the brief filed by counsel for defendant in which it is conceded that the identification of Miller was the only questionable link in the chain of evidence necessary to sustain a conviction. He then argues that he should substitute our opinion and conclusions for that of the jury in determining whether the identifying witness testified falsely, which, of course, we cannot do.

The burden rests on defendant to establish that evidence allegedly improperly admitted was prejudicial to his rights. St. Louis v. People, 120 Colo. 345, 209 P.2d 538. See, also, Kallnbach v. People, 125 Colo. 144, 242 P.2d 222. Here counsel have shown no preudice, for he frankly admits that the identification of defendant by the Witness Dean, if believed by the jury, was ample to sustain a verdict of guilty.

The co-defendant, Taylor, was arrested approximately four hours after the robbery at which time a blackjack was found in his possession. This was offered and received in evidence over the objection that it was not shown...