Roberts v. People, 14335.
| Decision Date | 19 September 1938 |
| Docket Number | 14335. |
| Citation | 87 P.2d 251,103 Colo. 250 |
| Parties | ROBERTS v. PEOPLE. |
| Court | Colorado Supreme Court |
Rehearing Denied Dec. 27, 1938.
Error to District Court, Weld County; Claude C. Coffin, Judge.
Seacil Roberts was convicted for being an accessory after the fact to a murder, and he brings error.
Affirmed.
Horace N. Hawkins, of Denver, and Rinn & Connell of Boulder, for plaintiff in error.
Byron G. Rogers, Atty. Gen., and Henry E. Lutz, Asst. Atty. Gen for the People.
A judgment of the district court of Weld county was entered on the verdict of a jury finding plaintiff in error, Roberts, an exchief of police of the city of Greeley, guilty as accessory after the fact to the murder of one Butler. Roberts brings the judgment here for review.
Butler's body was discovered in a well twenty five miles from his ranch about six weeks after his disappearance. A piece of railroad iron was tied around his neck. An autopsy disclosed two skull fractures on the back of the head occasioned by some blunt instrument or instruments, either of which was sufficient, according to medical testimony, to cause death. The evidence is not controverted that Hat Wier hauled the body from the Butler ranch to the well in Butler's car, Roberts following or preceding Wier in his own car. Neither is it disputed that Roberts assisted in unloading the body, and that Wier tied the weight to it and threw it into the well. On the return trip Wier poured gasoline over the Butler car and burned it, and Roberts then returned Wier to his ranch. From the date of this occurrence until subsequent to the time of the discovery of the body, Roberts, though questioned on numerous occasions by the officers investigating Butler's disappearance, repeatedly denied all knowledge of his whereabouts or what had happened to deceased. Finally Roberts and Wier both were arrested and each then accused the other of the murder; Roberts accusing Wier of killing Butler in his house with an axe, and Wier accusing Roberts of killing him with a chair. The two were charged with Butler's murder and obtained a severance for trial. On separate trials each was acquitted. The district attorney then, after Roberts' acquittal, he being tried first, charged Roberts substantially in the language of the statute with being an accessory after the fact to Butler's murder by Wier. After Wier's acquittal of murder the district attorney amended the information charging the homicide to have been committed by a person or persons unknown to the district attorney, and Wier likewise was charged as an accessory to the murder of Butler by a person or persons unknown. Roberts was placed on trial on the accessory charge first. As soon as the jury retired to deliberate on his case, Wier was placed on trial on the accessory charge against him. The Roberts' jury returned a verdict of guilty while the Wier trial was in progress and thereupon with the consent of the court the district attorney dismissed the accessory charge against Wier.
Roberts presents seventeen assignments of error which we shall consider under six heads. First. That the evidence on the trial of Roberts was to the effect that Wier committed the murder and that the district attorney having changed the information by amendment from a charge of murder of Butler by Wier to murder by an unknown person or persons, that there was a material variance between the charge and the proof; that Roberts was arraigned on one charge and convicted under another. This contention we think not sound. As the trial judge pointed out, the amendment enlarged the charge, making it broad enough to cover a murder by any person, but not eliminating Wier as the perpetrator of it. At this point it is pertinent to consider the statute creating and defining the crime of accessory after the fact. It is as follows: Sec. 6646, C.L.1921 (§ 14, c. 48, C.S.A. '35). It will be observed that it may be committed in two ways; namely, after a full knowledge that a crime has been committed, by concealing the crime from the magistrate or by harboring the felon.
The case was tried and submitted to the jury on the question of the crime having been committed in the first manner only. Had the defendant been tried on the theory that he harbored an unknown felon when the district attorney intended to rely on the harboring of Wier as a known felon, prejudice might with some reason be predicated on that circumstance. The charge of harboring being withdrawn, we are unable to see any possible prejudice resulting from the failure to name Wier as the perpetrator of the offense, and reliance thereon by the people. Defendant may not have been prepared to defend against harboring Wier when charged with harboring an unknown perpetrator of the crime, though we are inclined to the view of the trial judge that the charge was merely broadened without excluding Wier, but he was never called upon to make such a defense. Inability to prepare against or even being misled so that one does not prepare to defend against a specific charge is not prejudicial if that charge is not relied upon and withdrawn from the jury. This is so obvious and reasonable that no authority need be cited in support of the proposition.
What of the commission of the offense by concealment? The information advised the defendant that the state would attempt to prove that Butler was killed; that his killing was felonious; that Roberts had full knowledge of the killing and of its felonious character and concealed it. The evidence offered and relied upon by the people to prove a murder was the testimony of witnesses as to the discovery of the body bearing fatal wounds, with a piece of railroad iron tied to it with wire, in a well many miles from the ranch where deceased lived. The testimony offered to show a killing and its felonious character was that of defendant himself given under oath when he was on trial for murder. The evidence of concealment of the crime offered by the people was defendant's own testimony given on his trial for murder, and the testimony of officers who investigated the disappearance of Butler, and as to Roberts' denial of any knowledge of what had caused Butler's disappearance. Defendant could not have been misled or surprised by testimony of his own give under oath as to events of which he was an eye witness.
Second. Error is assigned based upon the contention that the evidence is insufficient to support the verdict and judgment. We are of the opinion that this assignment is without merit. Counsel for defendant in his reply brief quotes the following from Wharton on Homicide (3d ed.) page 86, section 68:
The evidence in this case--the testimony of Roberts on his direct examination in his trial for murder which was introduced by the state without objection--discloses that Roberts and Wier went to the Butler ranch on June 21, 1936; that when they arrived Butler was there and alive; that during an argument over some money owed by Butler to Wier Butler attempted to strike Wier with a stick and Wier hit him twice with an axe; that while Roberts was attempting to hold Wier Butler got up and ran outside; that Wier went out and brought him back, cursing him and demanding a bill of sale, as payment of the claim he asserted against Butler, on some cows Butler said were mortgaged; that while Butler was walking about the room holding his head Wier struck him again with the axe, knocking him down. That Roberts said: 'You have killed him,' and that Wier replied, designating Butler by a vile epithet, that he intended to kill him. Roberts then asked Wier to help put Butler on the bed, which they did. Wier worked over Butler trying to give him artificial respiration until, as he stated, 'I heard a gurgle and I knew was dead.' Wier and Roberts then took the body to the well, Roberts contending that he acted under compulsion by Wier, where it was discovered July 16, 1936, six weeks later. Wier burned Butler's car on the return trip while Roberts waited for him in his car and they then returned home. Roberts repeatedly denied to officers making an investigation of the case that he knew anything about where Butler was or the cause of his disappearance. The foregoing, all from the record of the testimony given by Roberts when on trial for murder, if believed by the jury, was amply sufficient to establish a murder by Wier of Butler, and full knowledge on the part of Roberts that a murder had been committed and his concealment of the crime. There is no suggestion in the record that Roberts had any part in the commission of the murder.
Third. Defendant assigns error on the action of the court...
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