Gallegos v. People

• Decision Date: 19 December 1960
• Docket Number: No. 19264,19264
• Citation: 358 P.2d 1028,145 Colo. 53
• Parties: Robert Elmer GALLEGOS, Plaintiff in Error, v. PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 1028

358 P.2d 1028

145 Colo. 53

Robert Elmer GALLEGOS, Plaintiff in Error, v. PEOPLE of the State of Colorado, Defendant in Error.

No. 19264.

Supreme Court of Colorado, En Banc.

Dec. 19, 1960.

Rehearing Denied Jan. 9, 1961.

Charles S. Vigil, Roger Cisneros, Denver, for plaintiff in error.

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 found guilty of first degree murder and sentenced to imprisonment for life. He was charged jointly with one Edward Raymond Martinez. The information, in pertinent part, alleged that the defendant and said Martinez, 'did feloniously, wilfully and of their premeditated malice aforethought kill and murder one Robert F. Smith; * * *.'

Defendant was fourteen, Martinez was twelve, and the decedent Smith was 'over seventy' years of age. The homicide was committed in connection with a robbery allegedly perpetrated by the defendant and Martinez upon the deceased. After the trial court ruled that a statement made by Martinez was not admissible in evidence the case as to him was dismissed.

Counsel for defendant contend, among numerous other assignments of error, that the information should be quashed for the following reasons:

'1. Two defendants are charged with doing the same act.

'2. No charge that death occurred within a year and a day.

'3. Age of the defendant not stated.

'4. No allegation that offense had occurred during robbery.

'5. No allegation that 14 year old defendant understood difference between good and evil.'

We know of no authority in this or any other jurisdiction which supports any of these contentions. Our attention is not directed to court decisions, to any statute, or to any comment of a text writer which in any respect upholds the position asserted by counsel for defendant. Numerous decisions of this court, and of other jurisdictions, clearly indicate that the information here sufficiently charged the crime for which defendant was convicted.

The evidence received at the trial established that between 8:30 and 9:00 P.M. on December 20, 1958, the defendant and two other boys were shining shoes in the neighborhood of 18th and Curtis streets in Denver. They were not making much money and together they thought of a plan to rob an old man. They followed the deceased to a hotel located at 1229-18th street. He entered the hotel and the defendant and one of the other boys followed him inside. The smallest boy (aged 8) stayed outside. The deceased was lost sight of by defendant and his companion and in an effort to locate him they told some of the inmates of the hotel that they were looking for their grandfather who had just come in, and inquired as to the room into which he had gone. An occupant of the room adjoining that of the deceased told the boys that the old man next door had just come in, and thereupon the boys knocked at the door. The boy with defendant asked Smith for a drink of water and when the old man brought it, he was grabbed and the defendant struck him with a shoe brush. He was knocked to the floor, a knife was held to his throat, he was badly beaten, and his wallet containing $13 was taken. The perpetrators of the robbery then left the hotel; all three of the boys ran to the 23rd street viaduct where the money was divided and the victim's billfold and the shoe brush thrown from the bridge.

Smith was taken to the Denver General Hospital. He had a fractured jaw, a knife cut under his chin, and appeared 'badly beaten about the face and head.' At that time he was conscious. He became progressively worse and by December 24, 1958, had lost consciousness and remained so until his death on January 26, 1959. The medical experts who performed surgery and administered treatment in effort to save his life, testified that in their opinion the primary cause of death was the brain injury suffered at the time of the robbery. Bronchial pneumonia was said to be a secondary cause of death because in the absence of the brain injury the deceased would have been able to handle the 'secretions' which caused the pneumonia.

On the evening of January 1, 1959, defendant and two of his younger brothers were seen by an officer who had been assigned to investigate the robbery of Smith. The officer placed the boys in his automobile where he questioned them. Richard, aged 8, admitted that he and the defendant had a part in the assault upon Smith, and defendant admitted at that time that he had taken part in the robbery. Both boys then told the officer that the third boy, Charles, was not a party to the offense. They said that the boy who was with them when Smith was robbed was their cousin, Edward Raymond Martinez. The officer then took Charles home. Richard and the defendant were placed in Juvenile Hall. The following day the same officer talked again with defendant who told in detail how he, Richard, and the Martinez boy had followed the 'old man' to the hotel; how Richard had 'stayed downstairs and watched for cops'; how they lost sight of their 'old man' and asked some people if they had seen their grandfather; how they were directed to the room occupied by Smith and how they entered his room and robbed him.

The officer's testimony concerning the statement made by Robert on the day following his arrest included, inter alia, the following:

'* * * He said upon knocking on the door someone told him to come in, that he opened the door and he seen it was the man he was looking for. He said at that time Eddie Martinez asked the old man for a drink of water and when the old man brought the water, Eddie grabbed him and he, Robert, hit the old man about the head and face with a shoe brush; that when the old man fell to the floor he took a knife and held it at the old man's throat and took his billfold out of his back pocket.'

January 7, 1959, defendant was taken from Juvenile Hall to police headquarters where he was questioned in the presence of a stenographer before whom questions were asked and answers given. He was then returned to Juvenile Hall. The typewritten questions was answers were thereafter taken to Juvenile Hall where defendant read them aloud to his eight year old brother Richard, and his cousin (the Martinez boy). The statement was signed by defendant and the Martinez boy.

Following a hearing out of the presence of the jury the court ruled that the statement as related to defendant was competent. It was not actually placed before the jury but the pertinent statements made by defendant were read into the record as follows:

'Questioning directed by Sergeant C. W. Miller to Robert Gallegos:

'Q. What is your name? A. Robert Gallegos.

'Q. How old are you? A. 14.

'Q. When were you born? A. 1944.

'Q. Give me the complete birth date? A. 1944, March 25th.

'Q. Where do you live? A. 2654 Stout.

'Q. All right, at this time, Robert, I call your attention to Case No. 290463, wherein one Robert F. Smith of 1229-18th Street, City and County of Denver, Colorado, was the victim of an aggravated robbery. This robbery offense took place in Apartment No. 45, at 1229-18th Street. This said offense occurred between 8:30 p. m. December 20, 1958, and 9:00 p. m. December 20, 1958. Now, I'll ask you, Robert, if you know anything about this assault and robbery. Just tell me in your own words. A. All of us three was shining shoes, and we wasn't making much money, and when we were coming Eddie thought of getting the old man's money.

'Q. You three were shining shoes and not making too much money, is that correct, and you say Eddie Martinez thought of a plan to rob an old man, is that correct? A. Yes. Then we saw this man. He was sort of a drunk. We thought he had some money, so we followed him up to this room.

'Q. You followed him to his hotel room? A. Yes.

'Q. That was 1229-18th Street, Apartment 45? A. Yes. When we went inside, we knocked on the door.

'Q. Who is 'we'? A. Me and Eddie. And we said 'Can we have a glass of water?', and as soon as he went to get the water, Eddie grabbed him, and I hit him.

'Q. What did you hit him with? A. I had a suede brush.

'Q. Suede shoe shining brush? A. Yes. Then he hit the bed, then fell to the floor. We took his money, his wallet, in his back pocket. As soon as we took the money, Eddie said 'Let's cut out'. We ran down stairs and down by the bridge, so we split it up three ways. I got $3.

'Q. You say you split this money up down by a bridge? A. 23rd bridge.

'Q. The 23rd Street viaduct, is that right? A. Yes.

'Q. Where was Richard during this assault? A. Downstairs.

'Q. Why was he downstairs? A. Watching if any cops come.

'Q. He was serving as a lookout? A. Yes.'

The signature of Robert Elmer Gallegos appears on page 5. The following also appears:

'I certify I have read the above statement and have signed it and the signature thereon is mine and this statement is entirely true. The statement was made voluntarily after I was duly warned by Sergeant Miller that it could and may be used against me in court. There were not promises made to me or threats made against me in obtaining this statement.'

'The signature of Robert Elmer Gallegos then appears in writing.'

Counsel for defendant objected to the admission of the oral and written confessions on the ground that they were not voluntary, and upon the further ground that the use of said confessions was prohibited by the terms of C.R.S. '53, 22-8-1(3). As related to this statute, hereinafter considered, it is pertinent to point out that prior to the death of Smith defendant was sentenced to the Industrial School in proceedings in delinquency filed in the juvenile court based on the robbery of Smith.

Defendant did not testify at the trial of the case except for his appearance in the absence of the jury in proceedings before the trial judge in which the court considered the question of whether the confessions were voluntary....