Perry v. People, 15870.

• Decision Date: 19 May 1947
• Docket Number: 15870.
• Parties: PERRY v. PEOPLE.
• Court: Colorado Supreme Court

181 P.2d 439

116 Colo. 440

PERRY v. PEOPLE.

No. 15870.

Supreme Court of Colorado, en Banc.

May 19, 1947

Error to District Court, City and County of Denver; H. E. Munson Judge.

Ralph Perry was convicted of burglary with force and grand larceny and he brings error.

Affirmed.

Merritt D. Vondy, of Denver, for plaintiff in error.

H Lawrence Hinkley, Atty. Gen., Duke W. Dunbar, Deputy Atty Gen., and James S. Henderson, Asst. Atty. Gen., for defendant in error.

ALTER, Justice.

An information was filed charging Ralph Perry and two others with the crimes of burglary with and without force, grand larceny, and receiving stolen goods. Upon motion of Perry, to whom we hereinafter refer as defendant or by name, a severance was granted, and he and one other were tried jointly on these charges. The jury returned verdicts finding Perry and his codefendant guilty of burglary with force, and grand larceny. Judgments were pronounced upon these verdicts to review which defendant has sued out a writ of error.

The two counts of the information upon which defendant was found guilty were the burglarizing, on February 21, 1946, of the Rollordrome, a skating rink located in Denver, and the taking of thirty dollars therefrom.

The burglarizing of the Rollordrome Roller Rink and the theft of the thirty dollars therefrom is undisputed. Three officers of the Denver police force positively and unequivocally testified that defendant and two others confessed to the crimes of which defendant was found guilty. The officers further testified that when Perry and others were questioned by them in the office of the Captain of Detectives, defendant, in answer to a question propounded to him, replied that 'due to his condition he was unable to work steady, and he needed money for his medicine, and had decided on this method [burglary and larceny] of getting the means to support himself.' According to the testimony of the officers, defendant's codefendant testified that 'he had decided to make this robbery and burglary his business.' After one officer had testified to a complete, detailed confession as to the Rollordrome episode by defendant and his codefendant, the owner of another establishment in Denver which had been burglarized March 17, 1946, and larceny committed therefrom, testified to this fact, and still another witness was called who testified that his establishment had been burglarized March 24, 1946. Theretofore defendant and his codefendant objected to the evidence of these other burglaries, and out of the presence of the jury the following occurred:

'Mr. Lichtenstein [Deputy District Attorney]: If your Honor please, by the witnesses Messrs. John B. Dee and L. L. Irvin, we are going to prove similar offenses to show a plan, scheme, design and motive on the part of two or more conspirators, inasmuch as they broke into establishments in a similar manner. The booty they took was money, and they split it up in the same manner. The defendant Leman [defendant's codefendant] was a lookout in other burglaries admitted to the police department, and so its purpose is to show a scheme, intent and design and plan of a series of burglaries. I think the law----

'Mr. Spangler [counsel for defendant's codefendant]: That is the very thing we are objecting to. They are charged here with burglarizing this roller-skating rink over here. The fact that some other place was burglarized, or a dozen others,--there are burglaries in this town every night, as Your Honor knows.

'The Court: That might be true, unless there was an understanding and agreement between them that that was their job to do, to burglarize generally. That is the proposition, you know, where two or more agree and confederate together.

'Mr. Spangler: They are not charged with that, they are not charged with conspiracy.

'The Court: I think the objection to that testimony should be overruled.'

Parenthetically, we may state that the record discloses that the people did not, in the first instance, introduce evidence of other burglaries. This occurred on cross-examination of the first officer called as a witness for the people. The officers testified that defendant admitted that during the burglarizing of the establishment on March 17, 1946, he suffered a heart attack and was unable to remain with his codefendant and another until the burglary was completed. Defendant did confess, according to the testimony of the officers, to his participation in the burglarizing of the other establishment on March 24, 1946.

Defendant did not testify. Leman, the co-defendant, when called as a witness for defendants, admitted that he had talked to the officers about the burglary and larceny charged and the other crimes about which the witnesses testified, but denied any admission or confession. A third defendant, originally accused of the offenses with which defendant was charged, entered a plea of guilty to the charges, and, when called as a witness, refused to testify on the ground of selfincrimination.

The motion for a new trial and the assignments of error are identical. They are as follows: '1. That the verdict of the jury is contrary to the evidence. 2. That the verdict of the jury is contrary to the law. 3. That the verdict of the jury is not supported by the evidence. 4. That evidence on behalf of the people was improperly admitted over the objection of this plaintiff in error. 5. That the court erred in admitting evidence of other offenses than the one charged in the information. 6. That the court erred in limiting counsel for this plaintiff in error in cross-examining witnesses for the people.' The grounds set out in the motion for a new trial, as well as these assignments of error, are insufficient. The obvious purpose of a motion for a new trial is to accord the trial judge a fair opportunity to consider and correct, if necessary, any erroneous rulings and to acquaint him with the specific objection to those rulings. It is equally obvious that attention should be drawn specifically to the alleged objectionable rulings....