Seiwald v. People
| Decision Date | 05 May 1919 |
| Docket Number | 8952. |
| Parties | SEIWALD v. PEOPLE. |
| Court | Colorado Supreme Court |
Rehearing Denied July 7, 1919.
Error to District Court, City and County of Denver; John A. Perry Judge.
Edward L. Seiwald was convicted of murder in the second degree, and brings error. Affirmed.
John T Bottom and Raymond S. Sullivan, both of Denver, for plaintiff in error.
Leslie E. Hubbard, Atty. Gen., for the People.
Plaintiff in error, hereinafter called the defendant, was convicted of murder in the second degree, and brings error.
He was tried under an information charging him with murder in the first degree, in the killing of one Lloyd. The people relied upon evidence to show that the killing was done in an attempt to rob. Defendant had been previously tried upon an information charging him and one Cook with murder in the first degree in the killing of Officer McPherson, in an attempt to rob. The first trial resulted in the conviction of Cook of murder in the first degree and of the defendant of murder in the second degree. The circumstances surrounding these homicides are detailed in Cook v. People, 56 Colo. 477 138 P. 756.
To the information in this case the defendant filed a plea setting up, first, that he was entitled to his liberty--that is, to an absolute discharge--because two terms of court had elapsed between the filing of the information and the trial; and, second, that he had previously been placed in jeopardy for the same offense, and had been acquitted 'of the offense of being engaged in a robbery, during the perpetration or an attempted perpetration of which a killing would be murder in the first degree, and convicted of murder in the second degree for the only shooting in which he was engaged.'
A demurrer to the plea was sustained. It is not strenuously insisted that both of the grounds of the plea were good, and that the court erred in sustaining the demurrer.
Bearing upon the first of these grounds, a question is raised as to the correctness of the record, which recites that continuances were granted upon the request of the defendant; but that need not be determined, because, in any event, the delay in bringing the defendant to trial did not work an absolute discharge. This is determined by a case recently decided by this court and not yet officially reported. No. 8293, People v. Henwood, 179 P. 874.
As to the second ground, the contention of counsel for defendant is that, inasmuch as the verdict of the jury, finding the defendant guilty of murder in the second degree only, must have been based on a finding that the killing was not done in an attempted robbery, the question of robbery could not be again tried, and that it was conclusively established that there was no robbery, nor attempt at robbery, when the two persons were killed; it being all one transaction.
We do not agree with these conclusions. Though the homicides were closely related in time, two...
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