Whitman v. People
| Decision Date | 21 November 1966 |
| Docket Number | No. 21857,21857 |
| Citation | 420 P.2d 244,161 Colo. 117 |
| Parties | Joel K. WHITMAN, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error. |
| Court | Colorado Supreme Court |
John J. Gaudio, Denver, for plaintiff in error.
Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., Aurel M. Kelly, Sp. Asst. Atty. Gen., State of Colorado, for defendant in error.
This is a companion case to Whitman v. People, Colo., 420 P.2d 416 announced this date.
As a result of the robbery of a South Denver Creamery Adamson and Whitman were by direct information jointly charged with aggravated robbery and conspiracy to commit aggravated robbery. This particular information was in addition to, and separate from, the information charging these same two persons with the murder of Walter F. Hamilton. It was the same general transaction, however, which formed the basis for each prosecution.
On arraignment Whitman pled not guilty and thereafter sought and obtained a trial separate from his co-defendant Adamson. Upon trial a jury adjudged Whitman guilty of both aggravated robbery and conspiracy and he was ultimately sentenced to a term of from twenty to forty years in the state penitentiary on the robbery charge and to a term of from three to five years on the conspiracy charge, these two sentences to be served concurrently. By the present writ of error Whitman seeks reversal of these particular judgments and sentences.
As already noted, it was the holdup of the creamery and the ensuing death of Walter F. Hamilton, which latter event occurred when Whitman drove the getaway car into the intersection of East First Avenue and University Boulevard on a red light at a high rate of speed and struck the vehicle which Hamilton was innocently driving through this same intersection on a green light, which formed the basis for the prosecution of Whitman for murder and the separate prosecution for aggravated robbery and conspiracy. Time wise, Whitman was first tried and convicted in the murder case; and his trial on the robbery and conspiracy charges took place a few weeks thereafter. All of which sets the stage for Whitman's basic contention in this court: the trial court erred in its refusal to grant Whitman's motion to dismiss both the robbery and conspiracy charges. This motion to dismiss was premised on the argument that inasmuch as Whitman had already been convicted of first degree murder under the so-called 'felony-murder' theory, he could not thereafter be prosecuted upon the robbery charge because of the doctrine of Res judicata. Stated somewhat differently, it is Whitman's position that inasmuch as the prosecution in the murder case had to prove, among other things, that he was guilty of the crime of robbery, he could not thereafter be independently and separately convicted of the same robbery which formed the basis for the first degree murder conviction. With this general contention we are not in agreement.
At the outset, it should perhaps be noted that Whitman, as we understand it, does Not urge that the doctrine of former jeopardy has any application to the present controversy. While there is some diversity of judicial thought on this particular subject, Colorado is...
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