Roberts v. People

• Decision Date: 03 April 1888
• Court: Colorado Supreme Court
• Parties: ROBERTS v. PEOPLE.

17 P. 637

11 Colo. 213

ROBERTS v. PEOPLE.

Supreme Court of Colorado

April 3, 1888

Error to district court, Lake county.

The indictment in this case contains two counts; charging Roberts, in the first, with the larceny of mineral ore of the value of $120, and in the second with breaking and severing ore, with intent to steal in the Forest City mine, while an employe therein; each of said offenses being a felony. The ownership of both the ore and the mine was alleged to be in the Small Hopes Consolidated Mining Company, a corporation. Upon this indictment, Roberts was tried and convicted; the jury rendering a general verdict of guilty in manner and form as charged in the indictment, and finding the value of the property stolen to be $120. A motion for a new trial was interposed and denied, and Roberts was sentenced to confinement in the penitentiary for the term of two years. C C. Parsons and S. P. Rose appeared as attorneys to aid the prosecution. While the jury was being impaneled, Philip O'Farrel, the district attorney, asked to be excused from further service in the case, stating as the reason therefor that he had been 'retained in another cause, the facts of which were somewhat interwoven with the facts said to be involved in this case, and that he had a good deal of state business to attend to in Judge KELLOG's court.' The court granted this application, and appointed C. C. Parsons special district attorney to prosecute the case under consideration. Section 1058, Gen. St. 1883, referring to district attorneys, provides as follows: 'If the district attorney be interested, or shall have been employed as counsel, in any case which it shall be his duty to prosecute or defend, the court having criminal jurisdiction may appoint some other person to prosecute or defend the cause.' And section 1059 provides that, 'if he be sick or absent such court shall appoint some person to discharge the duties of the office until the proper officer resume the discharge of his duties.'

Taylor & Ashton and Bissell &amp Gunnell, for plaintiff in error.

Alvin Marsh, Atty. Gen., for defendant in error.

PER CURIAM.

1. While the grounds upon which the district attorney asked to be excused from prosecuting this case are not very fully stated, there is sufficient, we think, to indicate that a statutory ground existed. It is evident that he regarded, and that the court below regarded, his retainer in another case as a disqualifying fact. So far as the grounds for the action of the court in this respect are disclosed, they do not contradict, but strengthen, the presumption that is always indulged in favor of the action of the trial court. Even if this were not the case, we are not prepared to say that a nisi prius court may not make such an appointment for good and sufficient reasons other than those specified in the statute.

2. A motion to compel a prosecutor to elect upon which count of an indictment he will proceed, when such indictment contains more than one count, each charging a felony, is a matter addressed to the discretion of the trial court. A court of review will not interfere, except, perhaps, where such discretion has been abused. 1 Bish. Crim. Proc. § 454; 1 Whart. Crim. Law,§ 423.

3. We see no good reason why witnesses, who have handled and become familiar with the ore taken from a certain mine, may not testify in reference to the same, for the purpose of identifying it, in the same manner and to the same extent as they are allowed to testify as to the identity of other personal property. The extent to which such evidence would be satisfactory and reliable would depend upon the existence of marked characteristics, rendering it easy of identification. Absence of such characteristics would go to the value of the testimony, not to its admissibility.

4. The evidence in the record before us relates chiefly to the charge of larceny contained in the first count of the indictment. It is upon this count the conviction of the prisoner must be sustained, if at all. The chief contention by counsel for the defendant in error is that the evidence does not show the corpus delicti. While direct evidence of the corpus delicti is always desirable it should not be held indispensable. To so hold, would, in many cases, give immunity to crime, especially in the class of cases to which this belongs. There is some conflict of authority; but we regard this as the better doctrine.

If however, circumstantial evidence is relied upon for this purpose, it should be such as to exclude all reasonable doubt. 1 Bish. Crim. Proc. § 1071, and cases cited. In the case at bar, we have to deal with the admission of the prisoner. The general rule is that extrajudicial confessions of a prisoner are not sufficient to warrant a conviction, without proof aliunde of the corpus delicti; or, as it is sometimes stated, the prisoner's confession of the crime must be corroborated by other and independent evidence. Id.; Whart. Crim. Ev. § 632. We are of the opinion that there is sufficient evidence to show a larceny of ores from the Forest City mine. Whether the larceny was committed by the prisoner is an entirely distinct question for independent...