Dyer v. People

• Decision Date: 18 September 1961
• Docket Number: No. 19808,19808
• Citation: 364 P.2d 1062,148 Colo. 22
• Parties: John Jackson DYER, Plaintiff in error, v. PEOPLE of the State of Colorado, Defendant in Error,
• Court: Colorado Supreme Court

Page 1062

364 P.2d 1062

148 Colo. 22

John Jackson DYER, Plaintiff in error, v. PEOPLE of the State of Colorado, Defendant in Error,

No. 19808.

Supreme Court of Colorado, En Banc.

Sept. 18, 1961.

Rehearing Denied Oct. 9, 1961.

John Jackson Dyer, pro se.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., J. F. Brauer, Asst. Atty. Gen., for defendant in error.

MOORE, Justice.

Plaintiff in error, to whom we will refer as defendant, was convicted of the crime of aggravated robbery and sentenced to a term of not less than seven nor more than ten years in the state penitentiary. Appearing pro se in this court he seeks reversal of the judgment by writ of error.

The 'Abstract of Record' and 'briefs' prepared and filed by defendant, demonstrate conclusively that he does not comprehend the legal significance of the judicial opinions to which he refers, and is lacking in ability to correctly interpret and apply the language which he quotes from various text writers.

The instrument captioned 'Assignments of Error' reads as follows:

'1. The Court erred in failing to explain to the jury what the testimony was during the cross examination of Mr. Mater.

'2. The Court erred in allowing the witness Jack Deeds to testify concerning identification of the defendant as the person he saw in the Glenarm Drug Store on October 30, 1959, based upon his identification of the defendant at the County Jail some six months or six weeks prior to the trial herein.

'3. The Court erred in failing to strike the testimony of the witness Jack Deeds, as to his identification of the defendant and in failing to instruct the jury to disregard his testimony.

'4. The Court erred in failing to direct a verdict of not guilty at the close of the peoples case.

'5. The court erred in failing to strike the testimony of Gail Draper, concerning another crime in no way connected with the crime defendant was on trial for.'

At the trial of the case defendant was represented by an attorney, well known to this court as an experienced and able lawyer, who had theretofore been appointed to represent him. After the verdict of the jury was returned a motion for new trial was filed and argued by counsel. Most of the matters which defendant argues in this court were not mentioned in the motion for a new trial. It should not be necessary to constantly reaffirm that only matters which are called to the attention of the trial court by motion for a new trial will be considered on writ of error, unless, to prevent injustice we elect on our own motion to notice manifest error to which no assignment was made in the motion for a new trial. Cook v. People, 129 Colo. 14, 266 P.2d 776. In Kirkendoll v. People, 138 Colo. 267, 331 P.2d 809, 810, we said, inter alia:

'We do not have one set of laws and rules governing procedures in the Supreme Court on writ of error in those cases in which lawyers appear, and another for those who elect to represent themselves. Any person has the constitutional right to defend a criminal action 'in person and by counsel.' If he is so unwise, or so egocentric, as to elect to act as his own attorney he must accept the burden and the hazards incident to that decision.'

Defendant was convicted by a jury upon an abundance of evidence including identification by two witnesses...