McNulty v. People, C--171
| Citation | 504 P.2d 335 |
| Decision Date | 18 December 1972 |
| Docket Number | No. C--171,C--171 |
| Parties | Guy McNULTY, Petitioner, v. The PEOPLE of the State of Colorado, Respondent. |
| Court | Supreme Court of Colorado |
Brenman, Sobol & Baum, Melvin Rossman, Denver, for petitioner.
Jarvis W. Seccombe, Dist. Atty., Frederic B. Rodgers, Coleman M. Connolly, Kathie L. Blackman, Deputy Dist. Attys., Denver, for respondent.
The defendant was convicted in the county court on three counts involving gambling and three counts charging conspiracy to commit each of the first three. The record before us does not reflect the sentences. We rely upon the following set forth in the defendant's brief:
The convictions were appealed to the Superior Court, which on the county court record affirmed the judgment.
The following four assignments of error are made here by the defendant: (1) the introduction of evidence of the defendant's reputation with respect to the count charging gambling for a livelihood; (2) the failure to set forth simple gambling as a lesser included offense of gambling for a livelihood; (3) the failure to permit the accused to examine grand jury testimony of a witness; and (4) whether the charges of keeping a gambling room or building and keeping a gaming table are duplicitous.
The People contend that Wilson v. People, 103 Colo. 150, 84 P.id 463 (1938) stands for the proposition that under a charge of gambling for a livelihood the prosecution may introduce evidence of the defendant's reputation to that effect. The defendant claims that the rule in Martin v. People, 114 Colo. 120, 162 P.2d 597 (1945) should apply. Martin involved conviction of the crime against nature. In that case the court stated:
The only argument and authorities presented to us are whether Wilson is to be excepted from Martin.
In view of the fact that the matter has been presented to us in this rather sketchy manner, we merely hold that, where, as here, evidence of the defendant's reputation of gambling for a livelihood is corroborative of other evidence--which is sufficient in itself to support the conviction--the introduction of reputation evidence does not constitute reversible error. Cf. State v. Hoyle, 98 Minn. 254, 107 N.W. 1130 (1906); State v. Froemsdorf, 218 Mo.App. 481, 279 S.W. 181 (1926) and Commonwealth v. Palace, 164 Pa.Super. 58, 63 A.2d 511 (1949). Our holding is limited to the offense of gambling for a livelihood.
The defendants urges that the trial court should have submitted to the jury the question of whether or not the defendant was guilty of simple gambling (C.R.S.1963, 40--10--9) as a lesser included offense in the charge of bambling for a livelihood (C.R.S.1963, 40--10--8). Our search of the record, however, does not disclose any request during trial for the submission to the jury of the question of simple gambling. This being so, we decline to pass on the point.
The defendant asserts error by reason of denial of his request to examine grand jury testimony of a witness. Had this case been tried after we announced Parlapiano v. District Court, Colo., 491 P.2d 965 (1971), the defendant would have been correct in his position. The rule in Parlapiano, however, is only prospective in its application. The court in this case, which tried the cause prior to Parlapiano,...
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People v. McNulty
...failure to request of or tender to the court either the instructions or the verdicts on this lesser included offense. McNulty v. People, Colo., 504 P.2d 335. Moreover, we observe, without going into a detailed analysis, that the offenses charged in counts 1 and 2 of the indictment do not ei......