Howard v. People, 23617
| Decision Date | 23 November 1970 |
| Docket Number | No. 23617,23617 |
| Citation | 477 P.2d 378,173 Colo. 209 |
| Parties | Jesse E. HOWARD, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error. |
| Court | Colorado Supreme Court |
Edward H. Sherman, Public Defender, City and County of Denver, David G. Manter, Asst. Public Defender, for plaintiff in error.
Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Michael T. Haley, Asst. Atty. Gen., Denver, for defendant in error.
The defendant was charged with the burglary of a foundry. Trial by jury resulted in a verdict of guilty, and the defendant seeks reversal, alleging that: (1) The trial court erred in refusing to instruct the jury on criminal trespass (C.R.S. 1963, 40--3--8) as a lesser included offense of the crime of burglary; and (2) A statement made by the defendant at the scene of the crime should have been suppressed, the defendant not having been advised of his constitutional rights at the time the statement was made.
The evidence adduced at the trial disclosed that officers answered a silent alarm at the Acme Foundry on the night of June 19, 1967. While investigating the cause of a broken window, they discovered the defendant hiding behind a door in one of the rooms of the building. The owner testified that the defendant did not have permission to be in the building, and that the building had been checked and found empty earlier in the evening. Nothing was missing; however, several large boxes had been brought into the premises and some of the company's products were found in one of the boxes.
The defendant argues first that a tendered instruction on criminal trespass, a misdemeanor, and a verdict thereon should have been given to the jury below. We do not agree.
The definition of a lesser included offense was set forth in People v. Futamata, 140 Colo. 233, 343 P.2d 1058, wherein this court adopted the test devised by Wharton:
See also Daniels v. People, 159 Colo. 190, 411 P.2d 316.
The statute defining the crime of criminal trespass requires a trespass Plus the additional element of 'depredations or removing any timber, fence, door, window, or wall found on the premises, or causing a fire.' On the other hand, burglary is committed whenever a person wilfully breaks and enters, either with or without force, any building with the intent to commit a larceny (1967...
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People v. Pearson
...to remain silent. People v. Allen, Colo., 523 P.2d 131 (1974); People v. Naranjo, 181 Colo. 273, 509 P.2d 1235 (1973); Howard v. People, 173 Colo. 209, 477 P.2d 378 (1970); People v. Smith, 173 Colo. 10, 475 P.2d 627 (1970). What Miranda condemned were those cases in which the police refuse......
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People v. Cardwell, 24796
...in the greater offense, the lesser is not necessarily included in the greater.' This test was recently followed in Howard v. People, 173 Colo. 209, 477 P.2d 378 (1970) where we 'it should be noted that the character of an offense is determined not by the evidence which may be legally Admiss......
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Hernandez v. State, 4842
...admissibility is not affected by our holding today." See also State v. Landrum, 112 Ariz. 555, 544 P.2d 664, 668, and Howard v. People, 173 Colo. 209, 477 P.2d 378, 379; cf., Dodge v. State, Wyo., However, because defendant, in his testimony, suggests that he was under the influence of narc......
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