Mitchell v. People , 170 Colo. 117 ( 1969 )

459 P.2d 284 (1969)

Joseph Weldon MITCHELL, Plaintiff in Error,
v.
The PEOPLE of the State of Colorado, Defendant in Error.

No. 22884.

Supreme Court of Colorado, En Banc.

October 6, 1969.

Jerry Alan Donley, Richard C. Webster, Colorado Springs, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., George E. DeRoos, Asst. Atty. Gen., Denver, for defendant in error.

GROVES, Justice.

The following matters are presented here: Allegedly a service station attendant was killed during a robbery attempted by defendant Mitchell, Nathan Whitmore and another. Defendant and Whitmore were charged with first degree murder. Whitmore testified at defendant's separate trial, incriminating both the defendant and himself, and possibly making capital punishment available. On cross-examination Whitmore stated that no promises had been made to him to procure his testimony. Defendant was convicted.

The motion for new trial set forth as newly discovered evidence the fact that following defendant's conviction the murder charge against Whitmore was dismissed; and that this cast grave doubt as to the truth of Whitmore's testimony that no promise had been made to him. The motion for new trial was denied and the cause is here on writ of error addressed to this specification and others.

We think that the ends of justice require that the district court hear appropriate evidence produced on the question of whether there was any inducement to procure Whitmore's testimony and, if so, the extent and nature thereof.

The cause is remanded with directions that the trial court set aside its order denying the motion for new trial, conduct a hearing as indicated and, with the additional consideration of any probative evidence therefrom, grant or deny the motion for new trial. If after such a hearing and findings made by the trial court the motion for new trial is denied, the matter shall return to this court under the present writ of error with record and transcript of the interim supplementary proceedings. In such event and if desired by counsel, our attention should be directed to the matter of filing of supplementary briefs.

LEE, J., not participating.