Opinion
No. 21303.
Decided June 16, 1964. Rehearing denied July 13, 1964.
From a judgment denying his petition for a writ of habeas corpus the prisoner brings error.
Affirmed.
1. HABEAS CORPUS — Homicide — Felony — Hearing — Statute. Under C.R.S. '53, 65-1-1, a trial court may summarily deny a petition for habeas corpus without conducting a hearing on the merits where the petition shows upon its face that the petitioner can neither be discharged nor admitted to bail, or in any other manner be relieved.
2. HOMICIDE — Felony — Charge — Conviction. Conviction of murder perpetrated during commission of one of felonies enumerated in murder statute was proper under charge of willful and pre-meditated murder.
Error to the District Court of Pueblo County, Hon. S. Philip Cabibi, Judge.
Messrs. EVANS and PHELPS, Mr. JAMES V. PHELPS, Mr. SHELDON L. SHEPHERD, for plaintiff in error.
Mr. DUKE W. DUNBAR, Attorney General, Mr. FRANK E. HICKEY, Deputy, Mr. JOHN E. BUSH, Assistant, for defendant in error.
JOHN BIZUP, JR., was charged with having "willfully and of his premeditated malice aforethought" killed one Roy Don Bussey. He was convicted upon that charge and sentenced to death. The judgment and sentence were affirmed by this Court. Bizup v. People, 150 Colo. 214, 371 P.2d 786. Thereafter Bizup obtained several stays of execution while he pursued, without success, post-conviction remedies in the federal courts. He is now before this Court on writ of error from the judgment of the trial court denying his petition for a writ of habeas corpus.
Bizup contends (1) that the trial court erred in summarily denying his petition for the writ of habeas corpus without conducting a hearing on the merits, and (2) that he was convicted of a crime with which he was not charged in that he was convicted of felony-murder, whereas he was charged with willful and premeditated murder.
[1, 2] C.R.S. '53, 65-1-1, specifically provides that where a petition for habeas corpus itself shows that the party can neither be discharged nor admitted to bail nor in any other manner be relieved, the trial court should summarily deny the petition. See also Valentine v. Tinsley, 143 Colo. 19, 351 P.2d 825; Bitner v. Tinsley, 151 Colo. 367, 378 P.2d 203. We have held, and the majority rule is in harmony with our holding, that a conviction of murder perpetrated during the commission of one of the felonies enumerated in our murder statute is proper under the allegations contained in the information upon which Bizup was convicted. Andrews v. People, 33 Colo. 193, 79 Pac. 1031; Gallegos v. People, 145 Colo. 53, 358 P.2d 1028, reversed on other grounds, 370 U.S. 49, 82 S.Ct. 1209, 8 L.Ed.2d 325. We adhere to the rule announced in those cases.
The judgment is affirmed.