Martinez v. People

Decision Date18 September 1967
Docket NumberNo. 22688,22688
Citation431 P.2d 765,163 Colo. 503
PartiesRaymond Pedro MARTINEZ, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
CourtColorado Supreme Court

Edward H. Sherman and Joseph R. Quinn, Denver, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., James W Creamer, Jr., Paul D. Rubner, Asst. Attys. Gen., Denver, for defendant in error.

HODGES, Justice.

Plaintiff in error, Raymond Pedro Martinez, was the defendant in the trial court and will be referred to herein as defendant.

The defendant and Rufus Max Apodaca were charged in a multi-count information and found guilty by a jury of the first four counts, namely, burglary, conspiracy to commit burglary, larceny, and conspiracy to commit larceny. On the first two counts, the defendant was sentenced on each to a term in the penitentiary of not less than one and not more than three years, the sentences to run concurrently. On the third and fourth counts of larceny and conspiracy to commit larceny, the defendant was sentenced to six months on each charge which sentences were suspended.

Rufus Max Apodaca was likewise found guilty on the same counts and sentenced. He also seeks reversal by his writ of error on generally the same assignments of error as argued by the defendant. See Apodaca v. People, Colo., 431 P.2d 763 announced the same date as our decision herein.

The following two contentions raised by the defendant's writ of error formulate the basis for reversal:

(1) That count one (burglary) and count two (conspiracy to commit burglary) of the information failed to allege offenses against the People of the State of Colorado, and accordingly the court was without jurisdiction over these offenses and could not validly sentence the defendant on these charges for which the jury returned verdicts of guilty; and

(2) That Instruction No. 16, regarding unexplained recent possession of stolen property, indicated to the jury that the burden of proving rightful possession was on the defendant, and that this instruction therefore had the effect of shifting the burden to the defendant to prove his innocence. As given, claims the defendant, this instruction is fatally defective.

I.

The first count of the information, insofar as pertinent, is as follows:--

'* * * informs the Court that, on the eighth day of August, A.D.1965, at the City and County of Denver, and State of Colorado, RUFUS MAX APODACA and RAYMOND PEDRO MARTINEZ * * * did then and there feloniously, wilfully and maliciously break and enter, and did then and there feloniously, wilfully and maliciously without force enter the building of TUXALL UNIFORM MFG. CO., a corporation, located at 3704 Downing Street, with the intent then and there to commit a crime; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the People of the State of Colorado.'

This count, in charging that the defendant did break and enter 'with intent then and there to Commit a crime' is insufficient. It is required that a specific crime be alleged.

One of the essential elements in a charge of burglary under C.R.S.1963, 40--3--5 is that the accused have the intent to commit a specific crime at the very time and place of breaking and entering. In the recent case of Gomez v. People, Colo., 424 P.2d 387, this rule was clearly enunciated. We therein held that an information charging burglary must specify by name the ulterior crime which it is alleged the accused intended to commit upon entry into the building.

Conceding that count one of this information may be defective in its failure to allege the specific crime intended upon breaking and entering, the People, nevertheless, argue that the other counts of the information, and specifically the counts charging larceny and conspiracy to commit larceny, cure this defect. It is maintained on behalf of the People that these larceny counts indicated with particularity that the intended crime that accompanied the breaking and entering was larceny and that therefore, the information does adequately apprise the defendant of the charge to which he is called upon to defend. In other words, by charging larceny in a subsequent count of this information, the defendant thereby is informed fully as to the charge of burglary he is called upon to defend. We have been referred to no cases which support this proposition, and in our research, we have been unable to discover such a case. There are many cases,...

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21 cases
  • People v. Rodriguez
    • United States
    • Colorado Supreme Court
    • March 11, 1996
    ...murder because those counts did not allege the elements of their various predicate offenses. Rodriguez cites Martinez v. People, 163 Colo. 503, 506-07, 431 P.2d 765, 766-67 (1967), in support of this proposition. The holding of Martinez cannot support Rodriguez' argument. In Martinez, we he......
  • People v. Williams, 98SC109.
    • United States
    • Colorado Supreme Court
    • June 28, 1999
    ...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, insofar as it failed to adequately apprise the defend......
  • Cooper v. People
    • United States
    • Colorado Supreme Court
    • January 11, 1999
    ...always required proof that a burglary defendant had the intent to commit a crime at the time of trespass. See Martinez v. People, 163 Colo. 503, 506, 431 P.2d 765, 766 (1967) ("One of the essential elements in a charge of burglary ... is that the accused have the intent to commit a specific......
  • People v. Incerto
    • United States
    • Colorado Supreme Court
    • February 5, 1973
    ...People v. Byrnes, 117 Colo. 528, 190 P.2d 584 (1948). See also, Mora v. People, 172 Colo. 261, 472 P.2d 142 (1970); Martinez v. People, 163 Colo. 503, 431 P.2d 765 (1967) (recognizing the rule that one count may incorporate another count by The jury had only one transaction to consider, and......
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