Diggs v. People

• Decision Date: 17 January 1972
• Docket Number: No. 24591,24591
• Citation: Diggs v. People, 492 P.2d 840, 177 Colo. 60 (Colo. 1972)
• Parties: Richard Orville DIGGS, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 840

492 P.2d 840

177 Colo. 60

Richard Orville DIGGS, Plaintiff in Error, v.The PEOPLE of the State of Colorado, Defendant in Error.

No. 24591.

Supreme Court of Colorado, In Department.

Jan. 17, 1972.

Smith & Renfrow, Michael J. Smith, Colorado Springs, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Michael T. Haley, Tennyson W. Grebenar, Asst. Attys.Gen., Denver, for defendant in error.

HODGES, Justice.

Defendant Diggs was charged with attempted removal of automobile parts.A jury found him guilty and he was sentenced to the penitentiary.On writ of error, the defendant urges reversal for several reasons, none of which, in our view, are meritorious.We therefore affirm the judgment.

Shortly after midnight, one Nicholson and one Shelton drove to a garage in Colorado Springs to pick up a car belonging to Shelton.After letting Shelton out, Nicholson drove down the alley behind the garage and saw what he believed to be a man removing parts from a car hooked onto a wrecker parked in the alley.Nicholson backed up to get Shelton and together they pursued a man who ran away from the car in question.They caught the defendant about 300 feet away from the garage.

A passing police car was stopped, and after being informed by Nicholson and Shelton that they had apprehended Diggs while trying to steal parts from the auto, the police searched Diggs.This turned up a screwdriver, pliers, two wrenches, four bolts and a radiator hose clamp.The defendant, without being asked, told conflicting stories as to what he was doing and where he was going.While another police car took Diggs to jail, the original officers went to the car in question and discovered that the radiator had just about been disconnected from the auto.They also found that a hose clamp had been removed and that all of the radiator bolts were missing.The next morning, a battery was found behind a post located close to the auto.This battery was identified as having come from the auto in question.

The defendant's attorney on this writ of error is not the same attorney that represented him at trial.

I.

The defendant first asserts that the information is fatally defective because it does not clearly or properly charge the defendant with the felony of attempted theft of auto parts having a value of twenty dollars or more.

For the statutory description of the substantive crime of theft of auto parts, seeC.R.S.1963, 13--13--5.Criminal attempt is defined as follows in 1967 Perm.Supp., C.R.S.1963, 40--25--1(1):

'An attempt to commit a crime requires that the person has an intent to perform any act, and to obtain any result which, if accomplished, would constitute such crime, and that he does any act toward the commission of the crime which demonstrates, under the circumstances, that he formed that intent and would commit the crime except for the intervention of another person or some other extraneous factor.'

While the information is not a model, it reasonably conveys the exact nature of the crime charged, including the time and place of its alleged commission.

The object of any information is to furnish the accused with a sufficient description of the charge against him to enable him to prepare his defense, and to avail himself, after his conviction or acquittal, of the protection against further prosecution for the same offense.People v. Allen, 167 Colo. 158, 446 P.2d 223;People v. Warner, 112 Colo. 565, 151 P.2d 975.It has also been held that clumsy wording alone does not render an information defective where its meaning is, nevertheless, clear.Petty v. People, 156 Colo. 549, 400 P.2d 666.

In challenging this information, the defendant also argues that it fails to sufficiently allege the material element of intent and that generally its wording is so vague that it should be declared fatally defective.These contentions are adequately disposed of by our recent decision in Clark v. People, Colo., 488 P.2d 1097.Although in that case the information charged an attempt to commit a different crime, the wording was very similar to the wording of the information in the instant case.With reference to the attempt allegations in Clark, we held that the words 'unlawfully and feloniously and purposely' did sufficiently amount to an allegation of the required intent.Also, in upholding the information in Clark, we held that the information there was not so vague and indefinite as to not 'give fair warning of what is forbidden to men of common intelligence.'

None of the reasons which the defendant advances for declaring that this information is fatally defective are meritorious.The information here charges a crime and it is otherwise adequate.

II.

Defendant next contends that the trial court erred in denying his motion to suppress the physical evidence obtained from him and the statements made by the defendant at or about the time of his arrest.The defendant agrees that if the police had probable cause to arrest, the search could be justified as incident to arrest.However, the defendant here argues that the police did not have any probable cause to arrest him.We agree with the trial court's finding that the police officers did have probable cause.In People v. Navran, Colo., 483 P.2d 228, we said:

'A court must determine whether the facts available to a reasonably cautious officer at the moment of arrest would warrant his belief that an offense has been or is being committed.Lucero v. People, 165 Colo. 315, 438 P.2d 693[177 Colo. 65](1968), cert. den., 393 U.S. 893, 89 S.Ct. 217, 21 L.Ed.2d 173.'

The testimony in this record shows that the police officers were stopped by two citizens who had the defendant'in custody.'The citizens told the officers what they had seen and done.The defendant's clothing and hands were covered with black grease and the defendant was winded and sweaty.We agree with the trial court that this was sufficient to give the officers probable cause to believe that an offense had been committed and probable cause to arrest the defendant.It is insignificant whether the search precedes or follows the formal arrest.Lavato v. People, 159 Colo. 223, 411 P.2d 328.The officers here had probable cause to arrest the defendant and therefore the search of the defendant, which disclosed the tools, bolts and clamp, was justified and valid.SeeFinley v. People, Colo., 488 P.2d 883;People v. Navran, Supra;People v. Bueno, Colo., 475 P.2d 702;Jones v. People, 167 Colo. 153, 445 P.2d 889;andHernandez v. People, 153 Colo. 316, 385 P.2d 996.

Neither do we find that the trial court erred in admitting the statements made by the defendant at or about the time of his arrest.As stated by this court in ...