Peterson v. People, 17764
| Citation | 133 Colo. 516,297 P.2d 529 |
| Decision Date | 21 May 1956 |
| Docket Number | No. 17764,17764 |
| Parties | Earl Woodrow PETERSON, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error. |
| Court | Colorado Supreme Court |
John C. Lafferty, Grand Junction, for plaintiff in error.
Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., Norman H. Comstock, Asst. Atty. Gen., for defendant in error.
Plaintiff in error as defendant was convicted of an assault with a deadly weapon with intent to do bodily injury, and on the verdict was sentenced to a term of not less than three nor more than four years in the state penitentiary. This is an abortive attempt to reverse the judgment. The abstract of the record filed contains only the verdict of the jury; the motion for new trial; the order denying a motion for new trial and the judgment and sentence. As an abstract of the record this is patently insufficient when the only point presented and argued is on the insufficiency of the evidence. On referring to the record proper, we do not find the instructions to the jury and no indication that a motion for directed verdict was made and if there was a deficiency in the state's evidence as is now claimed, such a claim should have been presented to the trial court. In other words, before error can be charged to a trial court it must have been afforded the opportunity to commit such error, with a like opportunity for correction thereof.
A motion for new trial was filed in due course, in words as follows:
'1. That the said verdict is not supported by the evidence.
'2. That said verdict is contrary to the evidence.
'3. That said verdict is not supported by the law applicable to the offense charged.
These are general objections and do not properly or specifically direct attention of the court to any specific error, and it follows that unless questions are so presented, there is no basis for the purported assignment of error in this court; moreover, the abstract of record should contain an abstract of the evidence, which is wholly lacking here, and therefore is not properly before this court for determination.
There is little reason to go into the details of the evidence other than to say that the circumstances were fully presented to the jury for its determination on the question of specific intent. The statute upon which the information was based provides that an assault with a deadly weapon with an intent to commit upon the person of another a bodily injury where no considerable provocation appears or where the circumstances of the assault show an abandoned and malignant heart shall be charged a felony. We have held that under this statute that general malice or criminal intent is insufficient and that there must be a showing of specific intent by direct or circumstantial evidence.
The facts briefly stated disclose that defendant on April 16, 1955, took a girl friend to work at the Quincy Bar in Grand Junction, Colorado, where she had been employed as a waitress. He left her there and went to a hotel and...
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