Gomez v. People, 22395

Decision Date06 March 1967
Docket NumberNo. 22395,22395
Citation424 P.2d 387,162 Colo. 77
PartiesJohnny Joe GOMEZ, Plaintiff In Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
CourtColorado Supreme Court

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

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 specified. The allegation of the ulterior felony intended need not,...

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17 cases
  • United States v. Thomas, 23975.
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • 26 Abril 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, 98SC109.
    • United States
    • Colorado Supreme Court
    • 28 Junio 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 insufficien......
  • Cooper v. People
    • United States
    • Colorado Supreme Court
    • 11 Enero 1999
    ...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) (holding de......
  • State v. Wilson, 12944
    • United States
    • South Dakota Supreme Court
    • 20 Noviembre 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......
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