Ray v. People

• Decision Date: 05 September 1961
• Docket Number: No. 19362,19362
• Citation: 364 P.2d 578,147 Colo. 587
• Parties: Charles Wesley RAY and Albert Johnson, Plaintiffs in Error, v. PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 578

364 P.2d 578

147 Colo. 587

Charles Wesley RAY and Albert Johnson, Plaintiffs in Error, v. PEOPLE of the State of Colorado, Defendant in Error.

No. 19362.

Supreme Court of Colorado, In Department.

Sept. 5, 1961.

Irving P. Andrews, Denver, for plaintiffs in error.

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

BOYLE, Justice

Defendants were convicted of aggravated robbery. Ray was sentenced to the state penitentiary for a term of not less than ten and not more than twenty years. Johnson received a sentence of from 80 years to life. Neither the disparity between the sentences imposed nor the reason for the extreme sentence imposed on Johnson is before us. The only errors presented pertain to conduct of the trial and thus we find it unnecessary to relate the facts.

Defendants contend that the judgments must be reversed for these reasons:

First, the court erred in responding to an interrogatory form the jury during their deliberations and outside the presence of counsel and the defendant.

Second, that one of the jurors was, it now appears, the wife of a deputy sheriff of Jefferson County and failed to disclose the fact. That this constituted prejudicial error.

We must take notice of the inadequacy of the record before us. Although it is a full and complete transcript and clerk's record and reveals everything which occurred in the trial court with which we are not concerned, it fails to disclose the facts relating to the errors alleged here. For this information we must depend on supplementary material. Ordinarily we would have granted the Attorney General's motion to dismiss but due to the seriousness of the charge and the severity of the sentence we are disposed to review the case on its merits, using such sources as are available for ascertainment of the facts.

1. The jury communication. While the jury was engaged in its deliberations it communicated a message to the bailiff. The inquiry was whether it could under the instructions find one of the defendants guilty and the other not guilty. The bailiff then contacted the judge, who was at home, by telephone. He in turn instructed the bailiff to write 'yes' on a slip of paper and deliver it to the jury. Although the bailiff followed the directions which had been given the jury found both defendants guilty.

Defendants do not contend that this incident was prejudicial. They argue that the policy of preserving inviolable the deliberations of the jury is so strong as to require reversal where it appears that there has been any extra judicial communication regardless of its prejudicial nature. The issue is thus limited to this point.

We are asked to overrule the earlier decision of Kimmins v. City of Montrose, 59 Colo. 578, 151 P. 434, 436. The holding there was that a non-prejudicial communication was not error. At the same time the language of the opinion strongly condemned communications between judge and jury outside the courtroom and without the presence of counsel, as follows:

'Good practice required that the court, before giving this instruction, should have called the jury into the court room, and read it to them in the presence of counsel for both sides, unless they waived this formality. We wish strongly to impress upon trial courts that they should not communicate with the jury on matters affecting the rights of the parties, except in open court and in the presence of counsel. Moffitt v. People , 149 Pac. 104.

'While the giving of the instruction in this manner was bad procedure, we cannot hold it to be reversible error, because it does not appear that it in any manner prejudiced the rights of the defendant. It is also claimed that the instruction was erroneous and the judgment wrong; that under the ordinance the fine could not be less than $3.00 nor more than $100.00. That is true, but how can defendant claim that he was injured? That verdict and judgment are not of a different kind from that which the ordinance prescribes and defendant cannot...