Armijo v. People

• Decision Date: 15 December 1969
• Docket Number: No. 23178,23178
• Citation: 170 Colo. 411,462 P.2d 500
• Parties: Gerald P. ARMIJO, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 500

462 P.2d 500

170 Colo. 411

Gerald P. ARMIJO, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.

No. 23178.

Supreme Court of Colorado, In Department.

Dec. 15, 1969.

William Chisholm, Edward H. Sherman, Public Defenders, Truman E. Coles, Deputy Public Defender, David G. Manter, Asst. Public Defender, Denver, for plaintiff in error.

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

HODGES, Justice.

The plaintiff in error, Gerald P. Aumijo, was charged with burglary and conspiracy to commit burglary. Trial was to a jury. Verdicts of 'not guilty' to burglary and 'guilty' to conspiracy to commit burglary were returned. The trial court then sentenced this defendant to a term in the penitentiary and from this judgment the defendant brings this writ of error.

The several assignments of error advanced by the defendant for our consideration are without merit and therefore we affirm the judgment. Only a brief discussion of one of the assignments of error that these verdicts are inconsistent is deemed necessary and for this purpose a brief re sume of the facts is set forth.

A residence was burglarized. On the second floor of this home, a member of the family was in bed. He testified that at about 10:20 P.M. he heard unusual noises in the downstairs area and several minutes later heard the back door of the home open and close. From an upstairs window, this witness saw two men in the backyard. He then went downstairs and called the police. He thereupon heard someone enter the house from the roof of the back porch, followed by noises on the second floor.

Shortly thereafter, two police officers arrived. One proceeded to the back of the house and the other was admitted into the house. This police officer heard someone running across the upstairs area and heard a screen rip. He went to the front door and saw a person complete a jump from the second floor. He shouted to the jumper to halt and fired a shot at him. This person ran and the police officer chased him for about two blocks before apprehending him. This police officer testified that he did not at any time lose sight of this person from the time he saw him land in the front of the house until he caught him. He identified the defendant as being the same person.

Another witness, also a member of the family, testified that he had just parked his car in the alley behind the house when he saw a second party run from the backyard and into the alley. This witness followed this person for a short distance but then gave up the chase. This second party was not apprehended. In the backyard was found a paper sack containing items which were identified as articles taken from the first floor area of the home. Evidence was also presented to indicate that entry into the first floor was accomplished by prying off a screen of the dining room window.

It is the contention of the defendant that the verdicts of the jury are inconsistent. It is argued that the evidence upon which the jury acquitted the defendant of burglary, is identical to the evidence upon which the jury found the defendant guilty of conspiracy to commit burglary. Therefore, the defendant concludes we must reverse on the authority of Robles v. People, 160 Colo. 297, 417 P.2d 232, wherein we held:

'The very same evidence which the jury apparently did not believe was sufficient to prove the defendant participated in the robbery was the only evidence which could prove him guilty of conspiracy. Under such circumstances, the conspiracy verdict...