Opinion
No. 12,086.
Decided May 28, 1928.
Plaintiff in error was convicted of assisting a prisoner to escape.
Affirmed. On Application for Supersedeas.
1. CRIMINAL LAW — Appeal and Error. Where there is evidence from which the jury might reasonably have found as they did, the verdict will not be disturbed on review.
2. Information — Technical Objections. Technical objections to the form of an information first presented after conviction are too late.
3. Information — Sufficiency. The sufficiency of an information is not to be determined from the evidence.
4. Information. An information charging a crime necessarily charges an attempt to commit such crime.
5. Escape. Under C. L. § 6805, acceptance by a prisoner of files and saws to effect his escape, was not necessary to complete defendant's statutory crime of assisting in an escape by conveying to him such tools.
6. Variance — Allegation and Proof. Any variance between allegation and proof not material to the merits of the case or that does not tend to prejudice the substantial rights of defendant, does not constitute reversible error.
7. Information — Sufficiency. An information is sufficient when it describes an offense in the language of the statute or so plainly that the nature of the crime may be readily understood by the jury.
8. Former Acquittal. Where the evidence necessary to support a second indictment would have been sufficient to procure a legal conviction upon the first, the plea of former acquittal is good.
9. Information — Sufficiency. An information which charged that defendant aided a prisoner to escape, though no attempt to escape was actually made, by conveying or causing to be delivered to the prisoner instruments to facilitate his escape, held to sufficiently inform defendant of the nature and cause of the accusation.
10. Verdict — Presumption. A verdict of guilty raises a presumption that everything necessary to a conviction was established by the evidence.
Error to the District Court of Jefferson County, Hon. Samuel W. Johnson, Judge.
Mr. LOUIS WAGNER, for plaintiff in error.
Mr. WILLIAM L. BOATRIGHT, Attorney General, Mr. WILLIAM W. GAUNT, Assistant, for the people.
THIS case is before us on writ of error, and application for a supersedeas, to review a judgment on a criminal charge against defendant Compton.
The information under which he was convicted, omitting the usual formal parts, alleged that one Smith was a prisoner, lawfully detained in a jail in Jefferson county on a criminal charge, specified in the information, "and while the said Edward Smith was then and there so confined, James Compton on to-wit: the 14th day of March, A. D. 1927, at said county of Jefferson, in the state of Colorado, unlawfully aided and assisted the said Edward Smith while so detained in said jail in the county of Jefferson, in the state of Colorado, to make his escape from the jail, though no attempt to escape was actually made by conveying or causing to be delivered to said Edward Smith instruments or arms proper to facilitate the escape of said Edward Smith."
Counsel for defendant filed a motion for a new trial on two grounds: (1) Error in overruling defendant's motion for a directed verdict; and (2) because the state failed to prove the allegations in the information. The assignments of error are limited to the same reason.
The gist of the essential evidence shows that Smith, the prisoner, was lawfully detained in jail at the time and place named, on a criminal charge as specified in the information. The deputy sheriff in charge of the jail testified that the defendant came to the jail and asked permission to see the prisoner, which request was granted. Defendant entered the jail; the deputy swung open a solid door, leaving a barred door between the prisoner and defendant. They stood there, talking in a rather loud tone of voice. Suddenly, the conversation seemed to lag. The deputy heard something like a package, a piece of paper, rattle. He laid his paper down, leaned over, looked around, and Smith, the prisoner, made a remark, "Jigger, there's the officer." The officer said, "What in hell have you got there?" Defendant folded his coat together and said, "Nothing." The deputy reached inside, took a package away from defendant, and told him to sit down. The package, with a paper wrapping, contained hacksaw blades and files, three or four of each. When taken from defendant, it was in the left front pocket of his overalls, sticking out of his pocket, but wrapped as described.
Smith, the prisoner, called as a witness for defendant, testified, among other things, that defendant "Kind of leaned his hand up on the jail door, see, where they let you talk to them, and stood there just a few minutes, and he kind of felt up there in his pocket, like, and made a little move around there, and the deputy sheriff, I don't know his name, walked up and asked him what he was doing, and right at that time I walked away from the door." Compton did not pass anything to the prisoner, so Smith testified, and it is undisputed that the prisoner did not actually receive the saws or files. Defendant testified on his own behalf that he is a carpenter and millwright, and said: "I went to work, and no material was on the job, so I went back down town and fooled around and I took a notion to get me some files to go home to file my saw with, and get me a few hack saw blades, and I went out home." Later, he said, he met a friend; they went riding; a tire blew up; his friend stopped to fix it, and defendant, at the friend's suggestion, went to the jail to see if Smith, the prisoner, "needed any tobacco or any clean clothes or anything."
The jury found defendant guilty, and he was sentenced to six months in jail and to pay a fine of $100.
1. The only question that the defendant is entitled to have reviewed, is that the state failed to prove the allegations in the information, such being the sole reason alleged in the motion for a new trial and assignment of errors. Concerning the sufficiency of the evidence, we quote with approval, the language of Mr. Justice Sheafor in Eachus v. People, 77 Colo. 445, 448, 236 Pac. 1009: "We can say here, as was said in the Cronin Case [ 74 Colo. 322, 324, 205 Pac. 271), that `there was evidence from which the jury might reasonably have found as they did, though there was other evidence from which a contrary inference might have been drawn. Under that condition we cannot disturb the verdict.'"
2. Counsel for defendant says in his brief that the deputy sheriff "tried to create the impression in his direct testimony that the defendant had the tools in his hands, and concealed them by folding his coat over them, which, under cross examination, he said was not true." Counsel, however, has inadvertently misquoted the record. The folio number that he gives to sustain his statement says this: "Q. All right, now then, when you grabbed Mr. Compton, you took these files and saws away from him? A. Yes. Q. Where were they when you took them? A. He had a pair of top overalls and they were pushed down in this left top overall pocket, sticking out about half the length of the package." Counsel repeated his questions, and like answers were returned. The witness did not retract his previous testimony. The fact that the tools were wrapped in paper and under defendant's coat, is ignored by counsel in this effort to discredit the witness.
3. Although there is but one ground for the assignments of error, as stated above, nevertheless counsel for defendant uses it as a common center from which he indirectly attacks the information, and which, if he is correct, involves the integrity of the statute itself on which the charge is based.
Technical objections to the form of an information, first presented after conviction, are too late. Bridge v. People, 63 Colo. 319, 165 Pac. 778; Dillulo v. People, 56 Colo. 339, 138 Pac. 33; Howard v. People, 62 Colo. 131, 160 Pac. 1060; Doyle v. People, 65 Colo. 124, 173 Pac. 1141. And it is no less prohibitive merely because counsel gives his point a wrong designation or classification, i. e., insufficiency of the evidence. The sufficiency of the information is not to be determined from the evidence.
4. Illustrative of the above, we quote the statute which defendant was charged with violating. It comes under the general category of legislation to prevent hindrances to public justice. It is section 6805, C. L. 1921, and reads: "If any person shall aid or assist a prisoner lawfully committed or detained in any jail for an offense against this state, or who shall be lawfully confined by virtue of any civil process, to make his or her escape from the jail, though no escape be actually made, or if any person shall convey or cause to be delivered to any such prisoner any disguise, instrument or arms proper to facilitate the escape of such prisoner, any person so offending (although no escape or attempt to escape be actually made) shall, on conviction, be punished by a fine not exceeding five hundred dollars and imprisoned in the county jail for a term not exceeding one year."
Counsel for defendant argues that at best, there was nothing more than an attempt to deliver the instruments to the prisoner. Granting for the notice, that this be true, it is immaterial here. An information charging a crime necessarily charges an attempt to commit such crime. People v. Webb, 127 Mich. 29, 86 N.W. 406. It is admitted that under the common law, an attempt to commit a crime is equally indictable as a consummated crime. See also Howard v. People, supra, at page 135. And by the express terms of this statute, defendant is guilty regardless of the success or failure of his unlawful venture. As to delivery, it may be and undoubtedly is true that there was no completed delivery in the technical sense that we sometimes speak of the delivery of a deed, or article that requires an acceptance to make it complete. This was unfortunately frustrated by the vigilance of the official. No response or acceptance by the prisoner of the files and saws, was required to complete defendant's statutory crime.
5. It is urged that the defendant did not convey the instruments to the prisoner, but we think the evidence is ample to warrant the jury in concluding that he did. It shows that he took them to the door of his friend's cell, or place of confinement, which was as far as he could go. His journey was over, and he tried to make it effective. According to the prisoner himself, defendant's witness, defendant leaned his hand on the cell door, and felt in his pocket; the jailer heard the package or paper rattle, and acted quickly. The language of the statute is in the disjunctive, "Conveying or causing to be delivered." The conveyance was complete, and even if the delivery was incomplete, the crime was effected. There was, however, but one crime alleged and proven, which of course was enough.
6. Any variance between the allegations and proof not material to the merits of the case, or that does not tend to prejudice the substantial rights of the defendant on the merits, does not constitute reversible error. Section 7103, C. L. 1921. As said by Mr. Justice Denison in Whitfield v. People, 79 Colo. 108, 112, 224 Pac. 470: "We agree with the remarks of Mr. Justice Bailey (63 Colo. pp. 397 and 398, 167 Pac. 779). There is no possibility of mistaking the nature of the offense (C. L. 7062); nor does the point `affect the real merits of the offense charged.'" (Citing cases.)
7. Even if it could be said with reason that the lone ground of error assigned is sufficiently comprehensive, it is still bad, under further authorities. As far as the statement of the offense is concerned, section 7072, C. L., provides that the information is sufficient when it is "set forth with such degree of certainty that the court may pronounce judgment upon a conviction according to the right of the case." Bridge v. People, supra. It is sufficient when it describes an offense either in the language of the statute, or so plainly that the nature of the crime may be readily understood by a jury. Tracy v. People, 65 Colo. 226, 228, 176 Pac. 280; Junes v. People, 72 Colo. 86, 87, 209 Pac. 512; Sarno v. People, 74 Colo. 528, 530, 223 Pac. 41; People v. Apostolos, 73 Colo. 71, 73, 213 Pac. 331; Whitfield v. People, supra.
8. The information does not allege, the evidence does not show, and the statute does not require, that there was or should be a jail break, or attempted exodus of the prisoner or prisoners from jail, in order to complete the crime. If this were so, the visitor at the jail could calmly and with impunity, convey or deliver a package of saws, files or dynamite, for that matter, and await the will and pleasure of his incarcerated friend. If the guest be successful, well and good; but, if discovered in the act, he need only bid the helpless jailor goodbye. That some statutes are defective in this regard, may be conceded, but fortunately, our is not. See above section 6805, C. L. An examination will show that at least for sixty years, beginning with early territorial days, the legislature has wisely guarded against just this contingency, where the statute declares in one place, "though no escape be actually made," and in another, "although no escape or attempt to escape be actually made." In 21 C. J. 837, it is said: "In some jurisdictions it has been held that defendant's offense must be connected with some effort to escape on the part of the prisoners; in others, under statutory provisions, that there need be no overt act on the prisoner's part. An actual escape, however, need not be effected."
Our law comes under the latter part of the quotation — there need be no overt act on the prisoner's part. It is plain in its terms; statutes differ, certainly, but we are bound by ours, and are not disposed to go out of our way to hunt for means to abrogate it by judicial construction, particularly against sworn public officers, under bond for the faithful performance of their duties, and in favor of those disposed to commit a heinous crime. It may be true that the statute can be criticized by choosing separately selected portions for the purpose, with an intellectual detachment from the section as a whole, but this is not the way to construe statutes. Defendant was charged with the commission of but one crime, perpetrated in a particular way, i. e., that he "unlawfully aided and assisted * * * by (the italics are ours) conveying or causing to be delivered," etc. The allegations and proof were sufficient to sustain the charge. If defendant did not know what accusation he had to answer, we have outlined what his lawyer's duty was, before trial, but there was no ambiguity or surplusage.
9. Counsel for defendant thinks that if defendant be arrested again under the statute, he would not be entitled to a plea of former jeopardy. He is mistaken. He would be exonerated by the general rule, stated in Davis v. People, 22 Colo. 1, 2, 3, 43 Pac. 122, wherein it is said: "It is laid down by Wharton, as a general rule, that `where the evidence necessary to support the second indictment would have been sufficient to procure a legal conviction upon the first, * * * the plea is generally good.' Wharton's Crim. P. P. sec. 456." The distinction that counsel for defendant now attempts to make is between a consummated crime, and an unsuccessful attempt to commit it, but it has no material bearing on the guilt or innocence of the accused.
10. Counsel for defendant suggests that section 16, article 2 of our Constitution has been violated; it requires that defendant may "demand the nature and cause of the accusation." He did not demand it, however, and even if demanded, this guarantee was not violated, for he was sufficiently informed. People v. Martin, 78 Colo. 200, 202, 240 Pac. 695.
11. A verdict of guilty raises a presumption that everything necessary to a conviction was established by the evidence. Doyle v. People, supra. There is nothing in the record to overcome this presumption.
Judgment affirmed.
MR. JUSTICE BUTLER and MR. JUSTICE WALKER dissent.