Warford v. People

Decision Date06 April 1908
Citation96 P. 556,43 Colo. 107
PartiesWARFORD et al. v. PEOPLE.
CourtColorado Supreme Court

Rehearing Denied July 6, 1908.

Error to District Court, Teller County; William P. Seeds, Judge.

James Warford and another were convicted of assault with intent to murder, and they bring error. Affirmed.

Frank J. Hangs, for plaintiffs in error.

William H. Dickson, Atty. Gen., and George D Talbot, Asst. Atty. Gen., for the People.

GABBERT J.

Plaintiffs in error, defendants below, were convicted of assault with intent to murder, and sentenced accordingly. They bring the case here for review on error.

The assault charged was upon one Edward Bell, then sheriff of Teller county. There was evidence to the effect that both of the defendants, in the city of Cripple Creek, assaulted Bell by pointing their revolvers at, and threatening to shoot him. Shortly after defendants left the city and started south along the railroad track. The sheriff, with a posse, started out to capture them, and, about half or three-quarters of an hour after the first assault, overtook and ordered them to halt. They replied by firing several shots at the sheriff and his posse.

The information contained but one count, charging but one offense. The theory of defendants in error was that there were two separate offenses, and, prior to the commencement of the trial, they filed a motion requiring the district attorney to elect upon which he intended to try them. The information did not charge the place of the assault other than that it was in the county of Teller and state of Colorado. The motion was denied. This ruling was not erroneous. The motion was premature. The information charged but one offense, and a motion requiring the people to elect on which of several offenses which might constitute the one charged the conviction of the accused would be asked could not be entertained until the testimony disclosed that the prosecution was attempting to establish a state of facts tending to prove the commission of two or more substantive offenses of the character charged, in order to convict the accused of the one charged in the information.

The prosecution first introduced testimony to prove the assault committed in the city of Cripple Creek. Evidence was then offered to prove the assault which occurred about a half or three-quarters of an hour later, and at a point about one mile south of the city, when the sheriff and his posse were attempting to arrest the defendants. Objection was made to this testimony, upon the ground that it was not a part of the res gestae of what occurred in the city of Cripple Creek, and request made the the time and place of the assault charged be fixed by the prosecution. This objection was overruled and the request denied. Testimony was then received on the part of the prosecution, to establish the assault south of the city. Defendants, by their counsel, then moved to strike this testimony, for the reason that what occurred in Cripple Creek was not part of the res gestae of what occurred on the railroad track south of the city, and what occurred at the latter point was not a part of the res gestae of the assault in the city. This motion was denied. Defendants, by their counsel, then moved that the district attorney be required to elect at which of the two points the assault charged was committed. This motion was denied. At the conclusion of the testimony on behalf of the people counsel for the defendants again moved to require the district attorney to elect upon what state of facts, or at what point, the alleged assault occurred upon which he would rely for a conviction. The court stated that, in his opinion, the testimony showed two separate assaults, and required the district attorney to elect. The prosecution thereupon elected to rely upon the facts tending to prove the assault which occurred south of the city. It was for this assault that the defendants were convicted.

In order to determine whether or not the several rulings above noticed were correct, it is necessary to further notice the testimony. From the testimony introduced on the part of the people, it appears that on the morning of the assault the defendants went to the office of the sheriff, in Cripple Creek, and demanded that he return to them certain revolvers which they claimed he had in his possession belonging to them. The sheriff replied (evidently addressing the defendant Warford): 'All right, Jim; I will go up and get them for you.' Warford then stepped out, Kenly remaining in the office. The sheriff noticed that Kenly had a revolver upon his person, which he took from him, and placed him under arrest for carrying concealed weapons, and directed a deputy to take him to jail, which the latter proceeded to do. Shortly after Warford returned, and ascertaining that Kenly had been arrested and a revolver taken from him, and that he was on his way to jail, informed the sheriff that Kenly had another revolver on his person. The sheriff and Warford then started to the jail to get Warford's revolvers. On their way up they came across the deputy who had Kenly in charge. The sheriff said to Kenly: 'Give me that other gun you've got.' Kenly at once drew his revolver and pressed it against the sheriff's stomach. At the same time Warford pulled his, and said to the sheriff: 'Don't make a damn fool of yourself, or you will get killed.' The sheriff and his deputy, realizing that they were at the mercy of the defendants, then said to them that if they wanted their firearms they would have to come to the jail and get them. All parties then proceeded to the jail. When they reached that building the defendants told the sheriff and his deputy to go inside and set their firearms outside the door. When the officers were inside the jail, the defendants disappeared and started south. The sheriff at once called a posse, and started in pursuit. When the defendants were overtaken and ordered to halt, they opened fire on the sheriff and his posse. Several shots were exchanged, which resulted in defendant Warford being wounded in the leg, but not seriously. The defendants finally surrendered, and were taken into custody.

The general rule is that evidence is not admissible which shows or tends to show, that the accused has committed a crime wholly independent of the offense for which he is on trial. The reason for the rule is that no person shall be convicted of an offense by proving that he is guilty of another. Evidence of such character creates a prejudice in the minds of the jury against the accused, and the rule should, therefore, be strictly enforced in all cases where applicable. To this general rule, however, there are exceptions. It is always proper to show the motive which may have prompted the accused to commit the crime for which he is being tried, and the intent with which he committed the acts which it is claimed constitute that crime; and evidence which tends to prove either of these facts is relevant to establish the commission of the crime for which he is on trial, even though such evidence, for the purpose indicated, may tend to show the commission of similar and independent crimes by him. Underhill on Criminal Evidence, §§ 89-90; United States v. Snyder (C. C.) 14 F. 554; Gassenheimer v. State, 52 Ala. 313. Or, as, in effect, stated by some authorities, that where the facts and circumstances offered in evidence amount to proof of a crime other than that charged, and there is ground to believe that the crime charged grew out of it, or was caused by it, such facts and circumstances may be admitted to show the quo animo of the accused. Commonwealth v. Ferrigan, 44 Pa. 386. Evidently, according to the testimony one the part of the...

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45 cases
  • Stull v. People
    • United States
    • Colorado Supreme Court
    • September 21, 1959
    ...exist between the necessity of proof on the part of the prosecutor and the danger of unfair prejudice to the defendant. Warford v. People, 43 Colo. 107, 96 P. 556; Jaynes v. People, 44 Colo. 535, 99 P. 325, 16 Ann.Cas. 787; Webb v. People, 97 Colo. 262, 49 P.2d To cope with the intrinsic da......
  • State v. Bickford
    • United States
    • North Dakota Supreme Court
    • December 2, 1913
    ...334, 83 P. 49; Edelhoff v. State, 5 Wyo. 19, 36 P. 627, 9 Am. Crim. Rep. 256; Herren v. People, 28 Colo. 23, 62 P. 833; Warford v. People, 43 Colo. 107, 96 P. 556; Jaynes v. People, 44 Colo. 535, 99 P. 328, 16 Cas. 787; State v. Jeffries, 117 N.C. 727, 23 S.E. 163; State v. Beard, 124 N.C. ......
  • People v. Botham
    • United States
    • Colorado Supreme Court
    • June 8, 1981
    ...that the defendant has committed a crime wholly independent of the offense for which he is on trial, is inadmissible. Warford v. People, 43 Colo. 107, 96 P. 556 (1908). Ill will between the victim and the defendant is one purpose for which evidence of other crimes may be admissible. Wharton......
  • Schneider v. People, 16023.
    • United States
    • Colorado Supreme Court
    • October 4, 1948
    ...found the defendant guilty of murder in the first degree with the death penalty attached. The court recognized the rule announced in Warford v. People, supra; Hillen v. supra, and Jaynes v. People, supra, but observed that the trial court, although not requested so to do, failed to instruct......
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