Opinion
No. 22884.
Decided October 6, 1969.
Defendant was convicted of first degree murder and brought error.
Remanded for Limited Purpose.
1. HOMICIDE — Accomplice — Testimony — Conviction of Defendant — Motion for New Trial — Truth — Doubt — No Inducement to Testify. Where defendant and accomplice were charged with first degree murder and accomplice testified at defendant's separate trial incriminating both defendant and himself, leading to defendant's conviction, and where motion for new trial set forth as newly discovered evidence fact that following defendant's conviction murder charge against accomplice was dismissed and that this cast grave doubt as to truth of accomplice's testimony that no promise had been made to him in exchange for his testimony, held, under the circumstances, remand for hearing required to determine whether there was any inducement to procure accomplice's testimony.
Error to the District Court of El Paso County, Honorable William M. Calvert, Judge.
Jerry Alan Donley, Richard C. Webster, for plaintiff in error.
Duke W. Dunbar, Attorney General, John P. Moore, Deputy, George E. DeRoos, Assistant, for defendant in error.
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 here 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.
MR. JUSTICE LEE not participating.