Schreiner v. People

• Decision Date: 20 March 1961
• Docket Number: No. 19520,19520
• Citation: 146 Colo. 19,360 P.2d 443
• Parties: Donald Lee SCHREINER, Plaintiff in Error, v. PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 443

360 P.2d 443

146 Colo. 19

Donald Lee SCHREINER, Plaintiff in Error, v. PEOPLE of the State of Colorado, Defendant in Error.

No. 19520.

Supreme Court of Colorado, En Banc.

March 20, 1961.

Rehearing Denied April 6, 1961.

Donald Lee Schreiner, pro se, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., Robert G. Pierce, Asst. Atty. Gen., for defendant in error.

McWILLIAMS, Justice.

Defendant and one Gallegos were jointly charged in a two count information with so-called aggravated robbery and conspiracy to commit the same. Thereafter defendant sought and obtained a separate trial and the jury adjudged him guilty on both counts of the information. Motion for a new trial was filed and after argument denied and defendant was sentenced to the state penitentiary for a term of not less than twelve nor more than twenty years on the aggravated robbery charge, and not less than eight nor more than ten years on the conspiracy charge, the sentences to be served concurrently. From the judgment and sentence imposed defendant seeks review in this court.

Three assignments of error are urged: (1) there was insufficient evidence to link this defendant with the robbery or conspiracy; (2) the trial court erred in instructing the jury pertaining to accessories; and (3) the trial court erred in refusing defendant's tendered instruction No. 1.

On September 2, 1958 at 10 o'clock in the morning two persons entered the Freed Pharmacy at 3209 West Colfax Avenue, and announced that 'this is a holdup'. In the pharmacy at the time were the proprietor, his wife and a customer. One gunman ordered these three to the rear of the drug store, stating that he wanted narcotics. At gunpoint the proprietor unlocked the narcotics cabinet and this particular robber, ignoring many other articles in the narcotic cabinet, took a small bottle labelled 'Dilaudid' and containing about twenty Dilaudid tablets. Dilaudid was described as a 'potent narcotic' which could be purchased only by prescription. The other robber remained in the front of the drug store and rifled two cash registers, taking approximately $125. Whereupon the two fled the store.

At the trial the customer who was present at the time of the holdup identified this defendant with certainty and definiteness as the one who took the narcotics. However, he could not identify the gunman who remained in the front part of the store, explaining that he did not get a good look at him. This customer also stated that defendant was armed with a hand weapon which looked like a German luger, whereas the 'other fellow * * * had a nickelplated revolver.' In describing the appearance of the defendant the customer observed that he wore dark glasses, a dark hat with a light brim, a dark jacket, had a little paper mustache glued to his face and appeared to have suntan lotion smeared on his face.

The proprietor testified that he was unable to identify either of the robbers, although he recalled that both wore dark hats, dark jackets, and dark glasses, and were both dark complexioned.

Police officers testified that on September 3, 1958 around 10 o'clock in the morning they arrested defendant and Gallegos in the defendant's apartment at 1244 Grant Street, Denver. Gallegos admitted the police officers to the apartment and defendant as of that moment was observed standing by a kitchen table. Officers testified that defendant then dropped a bottle to the floor. This small bottle was labelled 'Dilaudid' and was identified by the proprietor of the pharmacy as being the same type of bottle as the one taken from his store in the robbery. Search of defendant's apartment disclosed a loaded pistol lying on the kitchen table; two dark hats; two pairs of dark glasses; a dark jacket and several additional pistols. Both the proprietor of the store and the customer identified the guns, dark glasses, dark hats and jacket as being similar to those used by the robbers. The foregoing is a summary of the evidence adduced by the People. Defendant's motion for a directed verdict of not guilty was denied. Defendant took the stand and denied any knowledge of, or participation in, the robbery. Gallegos testified that he 'found' the guns, jacket, dark glasses and dark hats and brought them to defendant's apartment. Finally, an attorney who had previously represented defendant, but who had withdrawn prior to trial, testified that he had interviewed both the proprietor of the drug store and the customer shortly after the robbery and at that time each stated he could not identify either of the two robbers and that each thought the assailants were Spanish Americans. In this regard the customer said that he had picked out and identified this defendant in a police lineup within a few days after the robbery.

Defendant's first assignment of error relates to the alleged insufficiency of the evidence to support the verdict and in particular he complains there was a lack of evidence tending to show that he participated in this robbery. We think there was ample evidence tending to connect this defendant with the offense. True, the evidence was conflicting as is often the case. The customer, under oath, positively identified defendant as one of the two robbers. ...