Gomez v. People, No. 22395

Docket NºNo. 22395
Citation424 P.2d 387, 162 Colo. 77
Case DateMarch 06, 1967
CourtSupreme Court of Colorado

Page 387

424 P.2d 387
162 Colo. 77
Johnny Joe GOMEZ, Plaintiff In Error,
v.
The PEOPLE of the State of Colorado, Defendant in Error.
No. 22395.
Supreme Court of Colorado, En Banc.
March 6, 1967.

Mellman, Mellman & Thorn, Denver, for plaintiff in error.

[162 Colo. 78]

Page 388

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., John P. Moore, Paul D. Rubner, Asst. Attys. Gen., for defendant in error.

McWILLIAMS, Justice.

Gomez was charged in a criminal information with feloniously, wilfully and maliciously breaking and entering 'the building of Edith Rosamond, located at 2339 West 33rd Avenue With the intent then and there to commit a crime * * *.' (Emphasis added.)

To this charge Gomez pled not guilty, and upon trial a jury of his peers adjudged him guilty 'as charged in the information.' He was thereafter sentenced to a term in the state penitentiary, and by writ of error Gomez now seeks reversal of the aforementioned judgment and conviction.

Upon trial of this matter, after all of the evidence had been presented, Gomez moved the trial court to dismiss the information on the ground that the charge against him was legally insufficient in that certain material allegations were said to be lacking. Specifically, Gomez pointed out to the trial court that the information, as drawn by the district attorney, charged him with breaking and entering a certain described building 'with intent then and there to commit a crime.' According to Gomez, the allegation concerning the intent with which he allegedly 'broke and entered' was insufficient, and that the information, in order to be legally sufficient in this regard, should have alleged the specific 'crime' which he supposedly had the intent to commit once he gained entry to the building. The trial court overruled this motion. Gomez later urged the same matter in his motion for a new trial, which was denied by the trial court.

[162 Colo. 79] In this court the attorney general confesses error in this regard and concedes that the information, as drawn, is fatally defective. We agree, and the judgment therefore cannot stand. 13 Am.Jur.2d at 341 reads as follows:

'In charging burglary a criminal intent must be alleged. The rule is well established, however, that even though in burglary and statutory housebreaking the intent, as defined by the law, is simply to commit a felony, it is not sufficient for the indictment to use these general words; The particular felony intended must be...

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18 practice notes
  • United States v. Thomas, No. 23975.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • April 26, 1971
    ...5 Henson v. People, 166 Colo. 428, 444 P.2d 275 (1968, en banc); State v. Tippett, 270 N.C. 588, 155 S.E.2d 269 (1967); Gomez v. People, 162 Colo. 77, 424 P.2d 387 (1967, en banc); Taylor v. Commonwealth, 207 Va. 326, 150 S.E.2d 135, 140 (1966); Adkins v. State, 389 P.2d 915, 916 (Alaska 19......
  • People v. Williams, No. 98SC109.
    • United States
    • Colorado Supreme Court of Colorado
    • June 28, 1999
    ...that the defendant have an intent to commit an ulterior crime. Thus, analogizing these two crimes and relying upon Gomez v. People, 162 Colo. 77, 424 P.2d 387 (1967), and Martinez v. People, 163 Colo. 503, 431 P.2d 765 (1967), the court of appeals held that the information was insufficient,......
  • Cooper v. People, No. 97SC662
    • United States
    • Colorado Supreme Court of Colorado
    • January 11, 1999
    ...the accused have the intent to commit a specific crime at the very time and place of breaking and entering."); see also Gomez v. People, 162 Colo. 77, 80, 424 P.2d 387, 389 (1967); Macias v. People, 161 Colo. 233, 235, 421 P.2d 116, 118 (1966); People v. Mellor, 2 Colo. 705, 708 (Colo.1875)......
  • State v. Wilson, No. 12944
    • United States
    • South Dakota Supreme Court
    • November 20, 1980
    ...it specifies the ulterior crime intended in making the unauthorized entry. Adkins v. State, 389 P.2d 915 (Alaska 1964); Gomez v. People, 162 Colo. 77, 424 P.2d 387 (1967); Bays v. State, 240 Ind. 37, 159 N.E.2d 393 (1959); cert. denied, 361 U.S. 972, 80 S.Ct. 605, 4 L.Ed.2d 551; People v. B......
  • Request a trial to view additional results
18 cases
  • United States v. Thomas, No. 23975.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • April 26, 1971
    ...5 Henson v. People, 166 Colo. 428, 444 P.2d 275 (1968, en banc); State v. Tippett, 270 N.C. 588, 155 S.E.2d 269 (1967); Gomez v. People, 162 Colo. 77, 424 P.2d 387 (1967, en banc); Taylor v. Commonwealth, 207 Va. 326, 150 S.E.2d 135, 140 (1966); Adkins v. State, 389 P.2d 915, 916 (Alaska 19......
  • People v. Williams, No. 98SC109.
    • United States
    • Colorado Supreme Court of Colorado
    • June 28, 1999
    ...that the defendant have an intent to commit an ulterior crime. Thus, analogizing these two crimes and relying upon Gomez v. People, 162 Colo. 77, 424 P.2d 387 (1967), and Martinez v. People, 163 Colo. 503, 431 P.2d 765 (1967), the court of appeals held that the information was insufficient,......
  • Cooper v. People, No. 97SC662
    • United States
    • Colorado Supreme Court of Colorado
    • January 11, 1999
    ...the accused have the intent to commit a specific crime at the very time and place of breaking and entering."); see also Gomez v. People, 162 Colo. 77, 80, 424 P.2d 387, 389 (1967); Macias v. People, 161 Colo. 233, 235, 421 P.2d 116, 118 (1966); People v. Mellor, 2 Colo. 705, 708 (Colo.1875)......
  • State v. Wilson, No. 12944
    • United States
    • South Dakota Supreme Court
    • November 20, 1980
    ...it specifies the ulterior crime intended in making the unauthorized entry. Adkins v. State, 389 P.2d 915 (Alaska 1964); Gomez v. People, 162 Colo. 77, 424 P.2d 387 (1967); Bays v. State, 240 Ind. 37, 159 N.E.2d 393 (1959); cert. denied, 361 U.S. 972, 80 S.Ct. 605, 4 L.Ed.2d 551; People v. B......
  • Request a trial to view additional results

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