Mulligan v. People

Decision Date07 July 1919
Docket Number9401.
Citation189 P. 5,68 Colo. 17
PartiesMULLIGAN v. PEOPLE.
CourtColorado Supreme Court

Rehearing Denied April 5, 1920.

Error to District Court, Adams County; H. S. Class, Judge.

Frank H. Mulligan was convicted as accessory in a robbery, and he brings error.

Affirmed.

Teller and Bailey, JJ., dissenting.

M. B. Waldron and John W. Gillespie, both of Denver (Geo. Q. Richmond and Wm. H. Gabbert, both of Denver, of counsel), for plaintiff in error.

Leslie E. Hubbard and Victor E. Keyes, Attys. Gen., and Ralph E. C Kerwin and Wm. R. Ramsey, Asst. Attys. Gen., for the People.

SCOTT J.

The plaintiff in error was convicted as an accessory in the robbery of one Irene Nolan. He was charged in the indictment as a principal, and as follows:

'That Frank H. Mulligan on, to wit, the 2d day of January, 1918 at the county of Adams and state of Colorado, did feloniously and violently take and steal one platinum ring set with one diamond about 3 karats, with three smaller diamonds on each side, of the value of $1,200, and one platinum ring set with 2 1/4-karat diamond, with one 2-karat diamond on each side of the value of $1,200, and one platinum ring set with four diamonds, two diamonds of about 1 karat each and two diamonds of about 3/4 karat each, of the value of $1,000 of the personal goods and chattels of Irene Nolan, from the person of said Irene Nolan, by force and intimidation; the said Frank H. Mulligan having then and there a confederate present, armed with a dangerous weapon, to wit, a loaded revolver, which he then and there had and held, with intent, if resisted, to kill and maim said Irene Nolan.'

The errors assigned and which seem important to consider, are:

(1) That the defendant was indicted as a principal and convicted as an accessory. That if our statute upon that subject is capable of a construction that will permit such conviction, then the staute is in violation of certain provisions of the Constitution.

(2) That the grand jury which returned the indictment was not sworn as provided by law.

(3) That the court admitted incompetent evidence, over the objection of the defendant, to his prejudice.

The robbery occurred at what is known as the 'Model roadhouse,' a few miles from the city of Denver, and in Adams county. This place was kept by one Jacob Feinberg. Mrs. Nolan, in company with one Burke, a priest, came to the roadhouse about 2 o'clock on the morning of January 2, 1918, and remained there, occupying a separate room, but adjoining the main or bar room, eating and drinking until about 6 o'clock, when the robbery occurred.

The circumstances of the robbery were that a man, identified by Father Burke and Mrs. Nolan, as Philip Cohen, and later convicted of the crime, came into the room occupied by Burke and Mrs. Nolan, who were seated at a table, and demanded and took from Mrs. Nolan the diamonds. These were obtained by the threats of the robber, who fired several shots into the floor. While doing this a mask which the robber wore fell from his face, and the parties were from this circumstance enabled to afterward identify him. Burke and Nolan testify that some person whom they were not able to see or identify, and who was just outside the door, said to the robber as the latter went out the door, 'Did you get the rocks?'

The defendant was at the roadhouse at the time, and had been drinking and shooting in the outer room shortly prior to the robbery. There was no direct testimony identifying him as being connected with the robbery. His acts and conduct, and other circumstances at the time of, before, and after the crime, were relied on for his conviction as an accessory, and if the testimony to which objection is urged was properly admitted, these facts and circumstances were, in our opinion, sufficient to justify the verdict of the jury.

1. Upon the question as to whether the grand jury was sworn, it is not suggested by counsel that the lawful oath was not administered. The contention is that the record does not sufficiently disclose that the oath was administered.

The indictment itself recites:

'The grand jurors chosen, selected, and sworn, in and for the county of Adams, in the name and by the authority, of the people of the state of Colorado, upon 'their oaths' present,' etc.

The record of the court as of date of January 30, 1918, is as follows:

'At this time it is by the court ordered the roll call of grand jurors be called, and after excuses which were believed good and sufficient, the following were chosen to serve as grand jurors, to wit: August Hattendorf, H. G. Newmaker, A. R. McCool, A. J. Vermazen, R. M. Cameron, John McDougal, G. F. Decatur, Parker Cline, Geo. H. Kidder, John H. Farmer, Jackson S. Cobb, Edward Mencimer.
'It is now ordered G. F. Decatur be sworn as foreman of the grand jury, and the remainder of the jury sworn to do its duty. Further ordered that A. M. Heineman be sworn to act as stenographer.'

The record further discloses that on a day, not stated, but after the verdict was returned, the following occurred in relation to the record in this particular:

'Mr. Johnson: We are ready to take up these two cases against Philip Cohen and Frank H. Mulligan on their motions for new trial. In reference to the record of the grand jury, your honor made a statement that you would take that up and have it straightened out. The record shows that the grand jury was sworn, but perhaps it is a little indefinite, and it should be shown. I ask that the record may be corrected to speak the truth in reference to the grand jury being sworn. * * *
'The Court: I have before me the records of this court (volume 28, at page 63), wherein reference is made to the impaneling of a grand jury, and it appears from this record that the matter of the impaneling of the grand jury is not in accordance to the facts. The clerk is directed to make the record speak the truth in this: That the judge, himself, in open court, in this room, at the time the grand jury was impaneled, administered the oath to the foreman, which appears in section 3699 under the title 'Oath of Foreman,' 'Oath of Jurors,' and in due form, according to law, swore the foreman; and it was by reading the exact words as appears in the statute; and afterwards--immediately afterwards--each of the jurors were duly sworn by myself, according to law, and following the form set out in the section just enumerated. I think that is all that is necessary to be incorporated at this time.'

It thus appears from the original record, before the order for correction, that there was a roll call of the members of the grand jury, their respective names recited, orders that the foreman, naming him, be sworn, and that the remainder of the jury sworn 'to do its duty,' and that the stenographer, naming him, be sworn. While this record is brief and perhaps awkwardly written, we think, under the authorities, it sufficiently shows that the grand jury was sworn as the law requires. No person of sound reason and judgment can read this record and have any reasonable doubt that the grand jury was duly sworn. But if we were to hold that the original record was not sufficiently plain to disclose the fact that the grand jury was sworn, then the court had the power to order the correction of the same so as to speak the truth, which was done.

This order was made at the same term, and while the cause was pending before the court. It was a matter peculiarly within the knowledge of the trial judge, who personally administered the oath. What better and clearer showing could be made? The record is silent as to whether or not any additional showing was made. We have distinctly held that the court has such power. It was said in Benedict v. People, 23 Colo. 126, 46 P. 637:

'The point is made that the defendant was not furnished, previous to, or at the time of, his arraignment, with a copy of the information and a list of the jurors and of the people's witnesses, as the statute prescribes. As originally made up, the record does not affirmatively show that this requirement was observed. When, however, this imperfection in the record was called to its attention, the trial court, at the same term, and upon a showing made, ordered the record to be amended to speak the truth in this respect. The record, as now before us, shows that the statute was fully complied with in the particular mentioned. The right of the court thus to amend its own records is unquestioned, and, for aught that appears, there was abundant evidence before the court to justify the order directing the amendment to be made.'

There is no suggestion of fact in the record contrary to the finding and order of the court in the matter of the amendment. In fact the original record as made clearly justifies the order of elaboration by the insertion of the minute detail.

But the record discloses that the defendant was arraigned and entered his plea to the indictment on the 16th day of February, 1918. This plea was not withdrawn, nor was there an effort made to withdraw it. It appears that there was no motion to quash, or plea in abatement filed, and the first suggestion of irregularity in the indictment was after verdict, and contained in the motion for a new trial.

It has been held by the court that in the absence of a showing to the contrary, the presumption is that the proceedings were in favor of the regularity of the record.

The rule in this respect stated in Wilson v. People, 3 Colo. 325, seems to have been since adhered to. It was there said:

'Every reasonable intendment must be made in favor of the regularity of the record. The record asserts that the grand jury of 12 men were selected and chosen according to law, but as to the particular manner of...

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