Hutton v. People
| Decision Date | 08 February 1965 |
| Docket Number | No. 21228,21228 |
| Citation | 398 P.2d 973,156 Colo. 334 |
| Parties | Mark Wayne HUTTON, Plaintiff in Error, v. The PEOPLE of the State Colorado, Defendant in Error. . En Banc |
| Court | Colorado Supreme Court |
Mark Wayne Hutton pro se.
Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., and John E. Bush, Asst. Atty. Gen., for defendant in error.
At defendant's arraignment on a charge of robbery of the Maxwell Food Store in Colorado Springs, the trial court, after fully and duly advising him of his several rights, accepted his plea of guilty. He was charged with the perpetration of such robbery while armed with a dangerous weapon with intent, if resisted, to kill, maim or wound the victim, a type of robbery sometimes called 'aggravated robbery.'
Later, and at an appointed time, evidence concerning the crime was received. In the course of the evidence, a confession was admitted, and from it the trial court was advised that the defendant had used a 'chrome starter pistol' in the effectuation of the robbery.
Shortly before the completion of the presentence report, defendant sought to withdraw his plea of guilty to the accusation of 'aggravated' robbery, apparently desiring to substitute for such plea another plea, i. e., one of guilty to simple robbery. In explanation, the defendant told the trial court, 'I am guilty but because at the time I was brought in here I was shook up and not aware of what I was pleading to, but there is information that you probably received on this that I would certainly like to change my plea on this.'
At the hearing on the presentence report, the defendant requested appointment of counsel and permission to withdraw his plea, inasmuch as he was then convinced that he was guilty only of simple robbery. He told the trial court,
Defendant's request for leave to withdraw his plea of guilty to the charge of 'aggravated' robbery was denied. Sentence followed. It was determined that he was guilty of 'aggravated' robbery and he was ordered imprisoned in the penitentiary for a term of not less than ten years nor more than fourteen years. A subsequent motion to vacate the judgment, pursuant to Rule 35(b), Colo.R.Crim.P., availed the defendant nothing. He now seeks reversal by writ of error.
C.R.S. '53, 40-5-1, in pertinent part provides that:
'(1) If in the perpetration of such robbery he is armed with a dangerous weapon with intent, if resisted, to kill, maim or wound the person robbed or any other person.' (Emphasis supplied.)
This portion of the statute was the subject of inquiry in Funk v. People, 90 Colo. 167, 7 P.2d 823. An illuminative opinion emerged. It was held that sequentially it must be determined: (1) Was a robbery committed? and (2) If so determined, was the defendant, in the commission of the robbery, armed with a dangerous weapon with intent, if resisted, to kill, maim or wound the victim? Being dangerously armed and having the intent described are not essential to the perpetration of a robbery, but proof thereof 'go to the degree of the crime, and effect only the punishment to be suffered in event of conviction.'
From a reading of the record in this case, it becomes evident that defendant recognized his guilt of robbery, but that he was guilty of 'aggravated' robbery was to him another matter. He would have changed his plea of guilty and put in issue whether he was armed at the time of the robbery with a dangerous weapon with intent, if resisted, to kill, maim or wound another.
A dangerous weapon is an article of offense which in its intended or easily adaptable use is likely to produce death or serious bodily injury. Parman v. Lemmon, 119 Kan. 323, 244 P. 227, 44 A.L.R. 1500; Fabry v. State, 23 Okl.Cr. 215, 213 P. 910; Village of Barboursville ex rel. Bates v. Taylor, 115 W.Va. 4, 174 S.E. 485, 92 A.L.R. 1093.
But whether an article used as a weapon is dangerous may be, because of its very character or the circumstances of its use, a matter of doubt, and in such case the question should be left to the jury under an instruction as to what constitutes a dangerous weapon. People v. Coleman, 53 Cal.App.2d 18, 127 P.2d 309; People v. Ward, 84 Cal.App.2d 357, 190 P.2d 972; State v. Yturaspe, 22 Idaho 360, 125 P. 802; State v. Rector, 328...
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...statutes in other jurisdictions. See, e.g., People v. Aranda, 63 Cal.2d 518, 47 Cal.Rptr. 353, 407 P. 265 (1965); Hutton v. People, 156 Colo. 334, 398 P.2d 973 (1965); People v. Ratliff, 22 Ill.App.3d 106, 317 N.E.2d 63 (1974); People v. Trice, 127 Ill.App.2d 310, 262 N.E.2d 276 (1970); Dec......
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