Webb v. People, 13705.

• Decision Date: 19 August 1935
• Docket Number: 13705.
• Citation: 49 P.2d 381,97 Colo. 262
• Parties: WEBB v. PEOPLE.
• Court: Colorado Supreme Court

49 P.2d 381

97 Colo. 262

WEBB v. PEOPLE.

No. 13705.

Supreme Court of Colorado

August 19, 1935

Rehearing Denied Sept. 16, 1935.

In Department.

Error to District Court, City and County of Denver; Charles C Sackmann, Judge.

James W. Webb was convicted of assault with intent to commit robbery, and he brings error.

Reversed.

Nathan R. Kobey and William A. Lewis, both of Denver, for plaintiff in error.

Paul P Prosser, Atty. Gen., and Walter F. Scherer, Asst. Atty. Gen for the People.

BOUCK Justice.

The defendant, Webb, was tried on a charge of assault with intent to commit robbery, and, upon verdict of guilty, was sentenced to the penitentiary. He prosecutes error.

Counsel rely for reversal upon four alleged errors of the trial court, namely: (1) Admission of evidence concerning an alleged similar offense; (2) giving what is claimed to be an erroneous instruction on similar offenses; (3) permitting certain cross-examination of the witness Cook; and (4) improper closing argument by the district attorney.

1. The evidence complained of concerning another offense dealt with a robbery alleged to have been committed in Denver upon one Blodheim on September 8, 1934. In the case at bar the defendant was accused of an assault with intent to commit robbery upon one Morris Miller exactly a week later, also in Denver. Aside from the fact that the defendant was stated to have been on each occasion one of two men who were said to have joined in the crime (with no identification of the men who are declared to have accompanied him and who are not even suggested to have been the same person), there was no similarity between the cases. In other words, the earlier supposedly similar offense was entirely independent of the later one and disconnected therefrom. They were separated by a full week of time, they were perpetrated within the most populous city of Colorado in two distinct and separate places, the manner of their commission was utterly different in the first instance from the second, and the two victims were strangers to each other. The very identity of the defendant was sharply in issue, the complaining witness affirming it without corroboration, the defendant denying. In connection with neither case was any loot found in the defendant's possession, nor is any confession or admission of guilt claimed to have been made by him. In the present case, the only one tried, he presented evidence of an alibi through the testimony of apparently disinterested witnesses.

In Warford v. People, 43 Colo. 107, 112, 96 P. 556, 558, we said: '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.'

It is true that there are exceptions to this rule, as we in the Warford Case and others have shown. Thus by way of exception a similar offense may be proved, in certain fairly well-defined cases, to establish intent, or motive, or plan and system, or even identity. The Warford Case was itself clearly within the principle of the exceptions. We there quoted with approval from Commonwealth v. Ferrigan, 44 Pa. 386, a passage announcing 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.' See, also, Jaynes v. People, 44 Colo. 535, 543, 99 P. 325, 16 Ann.Cas. 787; Cargill v. People, 73 Colo. 218, 220, 214 P. 387; 16 C. J. 1610 and 1611, § 1196. The decision in Longwell v. People, 95 Colo. 403, 36 P.2d 458, cited by the people, is not inconsistent. There, as the record on file in this court shows, the two offenses were similar; for instance, in respect of the victim, as well as in respect of the ownership and the recent possession of each portion of the victim's property, and so fell easily within the principle of the exceptions.

In the case at bar the district attorney offered the evidence of the alleged similar offense for the purpose, as he expressed it 'of showing intent to commit robbery, and for that purpose only.' It was thereupon admitted, over the defendant's objection, but limited to the special purpose stated. It is at once apparent, by even a casual comparison, that this is not a case in which such evidence could possibly have a proper bearing on the question of intent. There is no logical connection...