Goldsberry v. People, 19627
| Decision Date | 12 March 1962 |
| Docket Number | No. 19627,19627 |
| Citation | 369 P.2d 787,149 Colo. 431 |
| Parties | Donald Wayne GOLDSBERRY, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error. |
| Court | Colorado Supreme Court |
Frances De Lost, 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.
Donald Wayne Goldsberry, hereinafter referred to as 'the defendant,' was convicted by a jury of the burglary of the building of one Doris Miller, who was operating therein a dining place known as Pappy's Corner Cafe, situate in Arriba, Lincoln County, Colorado. Defendant's motion for new trial was denied and the trial court thereupon sentenced him to the state penitentiary for a term of not less than one year nor more than five years. In imposing the sentence the trial court inadvertently stated that the defendant had been convicted of the crime of larceny, whereas in fact the crime was that of burglary.
By writ of error the defendant seeks reversal of this judgment, and he assigns as error the following: (1) the fact that prior to arraignment he was not furnished a copy of the jury list; (2) the order of the trial court, entered on the day of trial, permitting the district attorney to endorse two additional witnesses, namely defendant's brother, Earl Lloyd Goldsberry, and one Glenn Myers; (3) the refusal of the trial court to sustain defendant's challenge for cause of certain prospective jurors who on voir dire indicated that should the defendant decide not to testify in his own behalf, his failure would be deemed by them as an indication of guilt; (4) the failure of the trial court to declare a mistrial when the district attorney adverted to so-called 'similar offenses'; (5) the trial court's denial of defendant's motion to dismiss on the grounds of a general insufficiency of the evidence, which motion was interposed at the conclusion of the People's case; and (6) the giving of an instruction defining the crime of larceny and a further instruction regarding 'flight'.
The record before us does not contain a transcript of the arraignment proceedings, although the defendant obviously pled 'not guilty'. However, when the matter came on for trial the defendant then challenged the entire jury panel on the grounds that prior to his arraignment he was not given a copy of the jury list. The trial court's recollection was that a copy of the jury list had in fact been furnished defendant at the time of arraignment, but this was controverted by the defendant. In any event, the trial court denied this challenge to the array. Whether the defendant was actually furnished a list of the jurors prior to or at the time of his arraignment still remains unknown, at least insofar as the record before us is concerned. It is apparent, though, that this procedural defect was not brought to the attention of the trial court during the arraignment process, but was urged for the first time at the commencement of the trial proper.
C.R.S. '53, 39-3-6 provides that 'Every person charged with murder or other felonious crime, shall be furnished, previous to his arraignment, with a copy of the indictment, and a list of the jurors and witnesses.' (Emphasis supplied.) Assuming, but not deciding, that the defendant was not furnished a list of the prospective jurors prior to his arraignment, we conclude that under the circumstances of the instant case this omission does not constitute reversible error. The defendant made no timely objection, i. e. at the time of his arraignment, to the fact, if it be a fact, that prior to arraignment he had not been given such a list, nor did he make any showing of prejudice resulting from this alleged omission.
In Minich v. People, 8 Colo. 440, 9 P. 4, the defendant was convicted of murder in the first degree and sentenced to death. One assignment of error was that the 'accused was not furnished with a list of the petit jurors prior to his arraignment.' In rejecting this contention this Court said:
In Sukle v. People, 107 Colo. 269, 111 P.2d 233, the defendant was arraigned over his strenuous objection that he had not theretofore been furnished with a jury list. On writ of error such procedure was strongly disapproved by this Court, but even though there had been timely protest, the Court still declined to hold that such constituted reversible error. It was also stated in the Sukle case that to be effective, an objection by a defendant to arraignment without having been theretofore furnished a jury list must be presented prior to or at the time of the proposed arraignment, and if said objection is not thusly made the procedural defect is deemed waived. In the instant case the defendant at his arraignment apparently voiced no objection to the fact that he had not theretofore been given the jury list. Accordingly, the trial court committed no error in denying defendant's motion challenging the entire jury panel.
Five days before trial the district attorney filed with the court a motion to endorse as additional witnesses for the People one Glenn Myers and the defendant's brother, Earl Lloyd Goldsberry, and on the same date counsel for defendant received a copy of said motion. This motion was not heard until the day of trial, and over objection was granted. No request for a continuance on the ground of surprise was ever interposed by the defendant. It later developed that Earl Lloyd Goldsberry had been charged with this same burglary, had pled guilty and had been placed on probation. Upon trial he offered about the only testimony which implicated this defendant in the burglary. Glenn Myers also testified that he was with the Goldsberry brothers on the night the cafe was burglarized, but his memory of the evening's events by time of trial was unusually hazy. Under such circumstances the trial court did not err in permitting these two witnesses to be endorsed by the People, it being at best a matter within the sound discretion of the trial court, and its...
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People v. Brake
...circumstances, the trial court did not abuse its discretion by permitting the late witness endorsement. See also Goldsberry v. People, 149 Colo. 431, 369 P.2d 787 (1962). Thus, this case is very different from Kloberdanz v . People, 95 Colo. 30, 31 P.2d 1111 (1934), relied upon by the appel......
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