Short v. People

• Decision Date: 05 February 1900
• Citation: 27 Colo. 175,60 P. 350
• Parties: SHORT et al. v. PEOPLE.
• Court: Colorado Supreme Court

60 P. 350

27 Colo. 175

SHORT et al. v. PEOPLE.

Supreme Court of Colorado

February 5, 1900

Error to district court, Arapahoe county.

John Short and William Gill, convicted of conspiracy to commit burglary, bring error. Affirmed.

The defendants were found guilty of conspiracy to commit burglary, and were sentenced to the penitentiary. The record discloses the following: In the district court of Arapahoe county two informations were filed against John Short William Brown, and William Gill, which are designated respectively, as informations No. 1 and No. 2. There were two counts in each. In the first count of No. 1 the defendants were charged with conspiring to burglarize without force the dwelling house of John W. Nesmith, with intent to steal the personal goods of Hannah Anderson; and the second count was the same as the first, except that the intent was said to be to steal personal goods found in the house, without specifying their owner. In No. 2 the two counts were the same as in No. 1, except that it was alleged that the burglary was to be committed with force. Before the trial the court ordered the consolidation of the two informations for trial in one action, upon the statement by the district attorney that all the facts arose out of the same transaction, to which the defendants objected because the informations contained two separate and distinct offenses, and were not the subject of joinder. To a full understanding of the points decided, it is necessary to summarize the evidence contained in the bill of exceptions. After establishing the venue, the ownership of the dwelling house, and elements of that character, Hannah Anderson, a witness for the prosecution, in substance testified that she and William Gill were the servants of Mr. Nesmith, and were living in his dwelling house, in the city of Denver, on the 21st of June, 1898. About 3 o'clock on a Thursday afternoon the witness left the house, and before doing so closed the door of her room leaving in it $90 in money, a check for $113, and a gold watch, and saw them just before her departure. She returned about 5 o'clock in the afternoon, and about 10 o'clock in the evening discovered that her money, check and watch were missing. Two days before this the witness had a conversation with one of the defendants (William Gill), and, being then desirous of going to the City Park, asked said defendant if he would not stay at home, because it was a rule of their employer not to permit all of the servants to leave at the same time, but for at least one of them to be there; and in reply to this question the defendant said that it was not necessary for both of them to stay at home, because there was nothing in the house to steal, to which the witness replied that she had a little money in her room, and was afraid to leave the house alone. She saw the defendant Short about the premises first about two weeks before, and the last time the evening after, the theft. On the last occasion Short came into the kitchen with his co-defendant Gill, and sat down there while Gill was eating supper, and after the meal was finished the two went out together. The prosecution then introduced witnesses to testify to extrajudicial confessions made by the defendant Gill after the object of the conspiracy had been accomplished. The defendants had separate counsel, and there were objections by both to this offer, because, after the consummation of a conspiracy, declarations of one party to it cannot be used against the others, and on the ground that no evidence, up to that time, had been introduced to establish the corpus delicti (meaning the offense of conspiracy); and by Short's attorney on the ground that declarations of Gill in the absence of Short were not admissible against the latter. The court admitted the testimony, which, in substance, was that defendant Short came to him (Gill) about a week before the house was burglarized, and asked Gill if there was any money in his employer's house, to which Gill replied that the servant girl, Hannah Anderson, had about $300 in her room. Short then said to Gill that he was a married man, and did not care to be caught in trouble, but that he could get a man to commit a burglary if Gill would arrange to let this third person into the house, whom Short would bring there for that purpose. On the following day Short came to Gill with William Brown, telling Gill that Brown was the man whom he had procured to commit the burglary. The three then went up into the loft of the barn situate on the same premises, and made the arrangements to commit the burglary; and it was agreed between them that Gill should arrange the front door so that Brown could gain entrance to the house, and the proceeds of the expedition were to be divided equally between them. In pursuance of the conspiracy, Gill arranged with Brown to enter the premises, told him where Hannah Anderson kept her money and jewelry, and fixed the door so he could enter from the front part of the house. Brown entered as arranged, proceeded upstairs to the designated room, and took therefrom $90 in money, a check for $113, and, on a second trip, a gold watch and chain. The three men then went to the loft of the barn, and the money was counted out on Gill's knee, but Gill, becoming frightened, refused to take any of the money, and Short and Brown left with it. The prosecution introduced witnesses who further testified that on the day following the alleged confession of Gill they had a further conversation with him, and that he made a further (or, rather, repeated to them the same) confession in the presence of his codefendant Short;that after recalling to Gill, in the presence of both defendants, the fact that he had made a confession on the previous day, they told him that he could make whatever statement he desired in the presence of Short, giving the latter an opportunity to defend himself, or admit or deny any part of it. Gill then, in the presence of Short, according to the witnesses for the prosecution, made substantially the same statement as hereinbefore recited; and, while Gill was talking, Short thus interrupted him, when the following occurred: 'Didn't you tell me that the girl up there had three hundred dollars in her trunk?' to which Gill replied, 'Yes;' and Short again said, 'Didn't I tell you that I didn't want to be seen about the premises, or I didn't want to be caught in a burglary of that kind, or in a burglary? That I have a family here, and that it was liable to make me trouble? Didn't I tell you that I would furnish a man to commit the burglary?' to which Gill replied, 'Yes.' And again Short said, 'And didn't I furnish him?' to which Gill replied, 'Yes,' and Short said, 'Didn't he commit the burglary?' and Gill said, 'Yes,' and Short said in conclusion, 'That is all I had to do with it.' The jury found defendant John Short guilty under information No. 1, which verdict was afterwards set aside, and under information No. 2 both of the defendants were found guilty. Such additional facts as are necessary will be found in their appropriate place in the opinion.

John A. Rush, for plaintiffs in error.

David M. Campbell, Atty. Gen., Calvin E. Reed, Asst. Atty. Gen., and Dan B. Carey, Asst. Atty Gen., for the People.

CAMPBELL, C.J. (after stating the facts).

The assignments of error are argued under four heads: First error in consolidation of the cases for trial; second, error in admitting evidence; third, error in the giving and refusing of instructions; fourth, error in the form of verdicts as rendered.

1. Section 1452, Mills' Ann. St. (Gen. St. 1883, § 945) permits the joinder in one indictment or information of several charges against any persons for the same act or transaction, which may be properly joined, instead of in separate indictments or informations, and when two or more indictments or informations have been found the court may order them consolidated for trial. This statute has been under consideration by this court in Chesnut v. People, 21 Colo. 512, 42 P. 656, and Packer v. People, 26...