Abeyta v. City and County of Denver

• Decision Date: 07 November 1955
• Docket Number: No. 17596,17596
• Citation: 289 P.2d 918,132 Colo. 472
• Parties: Andy ABEYTA, Plaintiff in Error, v. CITY AND COUNTY OF DENVER, a municipal corporation, Defendant in Error.
• Court: Colorado Supreme Court

Page 918

289 P.2d 918

132 Colo. 472

Andy ABEYTA, Plaintiff in Error, v. CITY AND COUNTY OF DENVER, a municipal corporation Defendant in Error.

No. 17596.

Supreme Court of Colorado, En Banc.

Nov. 7, 1955.

Rehearing Denied Dec. 5, 1955.

Kripke & McLean, Denver, for plaintiff in error.

John C. Banks, Joseph E. Newman, Hans W. Johnson, Denver, Colo., for defendant in error.

Before ALTER, C. J., and MOORE, HOLLAND, CLARK, BRADFIELD and KNAUSS, JJ.

CLARK, Justice.

Writ of error herein was issued to review a judgment of the superior court of the City and County of Denver wherein defendant was adjudged to have violated a city ordinance and sentenced to serve a short term in jail. Trial was de novo upon appeal from the municipal court where similar determination was had.

Involved is Ordinance No. 250, Series of 1950, section 841.2-1, as amended, which reads as follows:

'It shall be unlawful to beat, strike, wound, imprison, or inflict violence on another where the circumstances show malice.'

In due time, counsel for defendant filed a motion 'for a new trial of the issues herein upon the following grounds, to wit: (1) insufficiency of the evidence; (2) errors in law.'

As ground for reversal of the judgment of the trial court counsel for defendant in this Court specifies but one general claim of alleged error, that being that the evidence was insufficient to warrant conviction of his client. Under this general specification, however, he proceeds in his brief to present various contentions of alleged error both with respect to admission of evidence and the conclusions of the trial court as to certain matters of law. These contentions fall generally under one or more of the following topics, which are discussed in defendant's brief: (1) Alleged error of the court in permitting Officer Kiest of the Denver Police Department to testify to the statement of Mary Montoya to the effect that defendant had cut her for the reason and upon the ground that same was hearsay and did not fall within the scope of res gestae. (2) Failure on the part of the city to present evidence to show that defendant had a knife thus creating a presumption that no knife was used, or if a knife was used, that defendant was not the one who wielded it. (3) That the city failed to show malice. (4) General lack of material evidence to sustain the judgment.

Before discussing the foregoing we note a recently injected issue. Mary Montoya, the victim of the incident, being called by the city as its first witness, testified in complete contradiction to her testimony given in the municipal court. Counsel for the city claimed surprise and asked leave to cross-examine Mary as a hostile witness. Objection was interposed on the ground of insufficient foundation, which was then laid by further questions by both court and counsel, as a result of which it clearly appears that Mary was not only hostile, but corrupt and contemptuous as well. Apparently she had, in the interim, determined to shield and protect the defendant, who is her brother-in-law. Counsel for defendant also cross-examined her and sought to impeach her with respect to certain details. Aside from the abovementioned objection with respect to foundation, no objection to her further examination was made on behalf of defendant. The contention presently urged was not contained in the motion for new trial, nor is it mentioned in defendant's brief in this Court, nor assigned as one of the points of alleged error. It was first interposed during oral argument before this Court after the briefs were filed and the cause fully at issue. Here defendant's counsel presented for the first time, and argued at length, that the cross-examination of Mary by the city attorney should not have been permitted for the reason that the city attorney was not surprised by her about face. The point, while interesting, is probably without merit, and in any event comes too late to warrant consideration by this Court.

Officer Kiest testified that he had his companion officer drove past the Sunshine Inn on Larimer Street in the early morning hours of June 13, 1954. They noticed a disturbance inside the inn; they immediately parked their patrol car and entered; the crowd was in turmoil and great excitement prevailed. The other officer proceeded to assist the bartenders in controlling the crowd while the witness went to Mary's aid. As he entered he found Mary cut and bleeding beside one of the booths with another woman trying to hold her up. He, with the assistance of others, carried her out to the sidewalk where they laid her thereon near the curb and called an ambulance. He said her condition was very poor, that she had lost considerable blood, that she had been drinking and that she was hysterical and angry. The defendant was standing apart from anyone else and five or six feet from Mary when one Frank Carrerra, referred to in the record as Mary's boyfriend, came up. Mary, pointing to Andy Abeyta, said to Carrerra: 'He cut me.'...