Heinze v. People, 16872
| Decision Date | 02 February 1953 |
| Docket Number | No. 16872,16872 |
| Citation | 253 P.2d 596,127 Colo. 54 |
| Parties | HEINZE v. PEOPLE. |
| Court | Colorado Supreme Court |
Fancher Sarchet, John J. Tobin and Ralph B. Harden, Fort Collins, for plaintiff in error.
Duke W. Dunbar, Atty. Gen., H. Lawrence Hinkley, Deputy Atty. Gen., and Norman H. Comstock, Asst. Atty. Gen., for defendant in error.
Upon trial, on a one-count information, charging defendant with driving an automobile on a public highway while under the influence of intoxicating liquor on November 30, 1951, and further, that he had been heretofore convicted on August 29, 1947 for the same kind of offense, defendant was found guilty, sentenced to serve a term of one year in the county jail of Weld county, and pay a fine of $400.
The substance of the errors assigned is that the substantive charge should have been stated in one count and the alleged prior conviction in a separate count; that defendant's motion to dismiss should have been granted; insufficient evidence to sustain the verdict; that defendant should not have been questioned under cross-examination concerning prior convictions; the trial court's refusal to give tendered instructions; and the giving of improper instructions.
After defendant had entered a plea of not guilty, on December 11, 1951, his counsel filed a motion to quash the information on the ground that two separate offenses were intermingled in the one count in the information; further, that the statute of limitations of the state of Colorado had run against the charging of the said alleged misdemeanor on August 29, 1947. This motion was denied and trial proceeded. At the conclusion of the People's evidence, defendant's counsel moved for dismissal of the cause for the reason that there was not sufficient evidence upon which to base a conviction. This motion also was denied.
The facts on which the issue of whether or not defendant was under the influence of intoxicating liquor to the extent that his ability to drive a car was impaired are, briefly, as follows:
At about 11:45 o'clock on the night of November 29, 1951, defendant came out of a tavern in Garden City near Greeley, where he said he had gone in search of farm help, and while there had consumed 'two beers.' He got into his automobile and in backing it off the premises, backed it out into the line of traffic on the highway and was struck by a passing automobile. Some little damage was done to the two cars and the driver of the other automobile and defendant went into the tavern, called the courtesy patrol, and while waiting, discussed the matter of the accident. Defendant was admittedly cooperative in every way. On arrival of the courtesy patrolman, and after a short investigation of the accident and the damage, defendant was given a ticket or summons to appear before the justice of the peace on the following day to answer the charge of taking the right of way. There is a notation on the summons 'had been drinking.' The officers testified that defendant was not intoxicated; that his driving was not impaired, because they followed him for quite a distance as he drove toward his home at Eaton, Colorado; that he drove his car properly and without difficulty. Several miles away, and some twenty or thirty minutes after defendant left Greeley, he was stopped by another courtesy patrolman in Eaton, who put him under arrest and took him to the county jail where a physician was called to examine him; after the examination was concluded, about 2 o'clock in the morning, defendant was confined in jail until after noon of the next day. The information was filed in the county court.
This opinion will not be encumbered with a detailed discussion of the evidence, from a study of which it might be said that as to the question of whether defendant's ability to drive an automobile was impaired, it is a border-line case. Ordinarily when this question was resolved against defendant by the jury, its verdict, as the trier of the facts, should stand; however, where errors occurred in the trial, we cannot always safely say that such errors were without prejudice. If apparent errors are sufficient to result in an unfair trial, it is our duty to observe such errors regardless of the failure of counsel to make and preserve a proper record in the case.
It at once appears that the one-count information charged two separate and distinct...
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