Oaks v. People

• Decision Date: 14 February 1967
• Docket Number: No. 21625,21625
• Citation: 424 P.2d 115,161 Colo. 561
• Parties: Carl Robert OAKS, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 115

424 P.2d 115

161 Colo. 561

Carl Robert OAKS, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.

No. 21625.

Supreme Court of Colorado, En Banc.

Feb. 14, 1967.

Rehearing Denied March 13, 1967.

David B. Richeson, William R. Kochis, Denver, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., James F. Pamp, Asst. Atty. Gen., for defendant in error.

DAY, Justice.

This case, which involved a conviction of murder in the first degree, was before us previously. See Oaks v. People, 150 Colo. 64, 371 P.2d 443. In that case we reversed a previous conviction and remanded the cause for a new trial. That trial has been held, and Oaks is again here on writ of error, asserting several grounds for reversal of his second conviction. For a statement of the facts of the case we refer to our previous decision. No good purpose would be served in detailing them again here.

Oaks was tried as an accessory in a robbery-murder committed by one Beaty, a fifteen year old boy at the time of the crime. After this court reversed the first conviction of Oaks, and before his new trial, Beaty had been allowed to enter a plea of guilty to voluntary manslaughter. Therefore, Oaks' first assignment of error relates to the refusal of the trial court to sustain a motion to quash and dismiss the murder charge or, in the alternative, to reduce the charge to the lesser offense commensurate with Beaty's conviction.

The statute under which Oaks was charged and convicted is C.R.S.1963, 40--1--12, as follows:

'An accessory is he who stands by and aids, abets or assists, or who, not being present, aiding, abetting or assisting, has advised and encouraged the perpetration of the crime. He who thus aids, abets or assists, advises or encourages, Shall be deemed and considered as principal and punished accordingly.

An accessory during the fact is a person who stands by, without interfering or giving such help as he may in his power to prevent a criminal offense from being committed. An accessory during the fact shall be a competent witness unless disqualified from other causes.' (Emphasis added.)

From the wording of the statute and the interpretation that this court has given it in a number of cases, the acts of the principal are the acts of the accessory, and the accessory may be charged and punished accordingly as a principal. Schreiner v. People, 146 Colo. 19, 360 P.2d 443; Mulligan v. People, 68 Colo. 17, 189 P. 5. This court has held that the conviction of the principal is not a condition precedent to the conviction of an accessory after the fact. Roberts v. People, 103 Colo. 250, 87 P.2d 251. The same reasoning would apply to an accessory before or during the fact. We therefore hold that Oaks was neither entitled to a dismissal of the case, nor was he entitled to a reduction in the nature of the charge against him.

Next Oaks assigns error by the court in the giving of certain instructions. We reject his argument. When the proof is undisputed that a homicide was committed in an attempt to perpetrate a robbery, it is not necessary to prove any facts in which malice, deliberation or premeditation could be inferred. Those elements, as well as specific intent, are not the necessary elements of the crime charged and need not be proved. Whitman v. People, Colo., 420 P.2d 244; Frady v. People, 96 Colo. 43, 40 P.2d 606, 96 A.L.R. 1052. This was the law embodied in the instructions, and the court did not err in so charging the jury.

Another contention of the defendant is that the court erred in the admission of photographs of the victim in the morgue. What we said in People v. Spinuzzi, 149 Colo. 391, 369 P.2d 427, answers Oaks' contention in this regard.

Oaks next alleges as error that a drawing of the area of the homicide, based on observations Ten months after the crime was committed, was used by the witnesses and admitted in evidence. The record on this contention reveals that the witness who participated in the preparation of the drawing testified as to his general familiarity with the area; that no changes were wrought between the time of the crime and the date of the drawing. The witnesses were able to use it without difficulty and were able to locate objects near the murder scene as they appeared on the day of the murder. The drawing was an aid to understanding the testimony of the witnesses, and its admission was directed to the sound discretion of the trial court. We find no abuse thereof. See 23 C.J.S. Criminal Law § 853(1).

As to another assignment of error, Oaks claims that the court, over his objection, admitted testimony of persons who heard the robbery victim say, in response to a question as to what happened, that he had been shot with a shotgun. Oaks contends these statements are hearsay and should have been excluded. Without going into the question whether these statements were admissible under certain well-known exceptions to the hearsay rule, we note that there was no issue in this case concerning what happened to the victim. That he was shot with a shotgun in the hands of Beaty is beyond dispute. Therefore the statement of the victim concerning the fact that he was shot could not in any way have been...