Ruark v. People

Decision Date04 October 1965
Docket NumberNo. 20968,20968
Citation406 P.2d 91,158 Colo. 287
PartiesTheodore Charles RUARK, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
CourtColorado Supreme Court

Lysle R. Dirrim, John L. Kane, Jr., Brighton, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., Aurel M. Kelly, Special Asst. Atty. Gen., Dever, for defendant in error.

SCHAUER, Justice.

On July 13, 1962, a four count information was filed in the District Court of Adams County, Colorado, against Charles William Ferguson and Theodore Charles Ruark, charging them jointly with the crimes of (1) Aggravated Robbery; (2) Assault with a Deadly Weapon; (3) Assault to Murder, and (4) Escape after Conviction. During the trial Ferguson entered a plea of guilty to Count No. 3, the other counts against him were dismissed, and Count No. 3 was withdrawn from the consideration of the jury. Ruark was convicted on Counts Nos. 1, 2 and 4 and sentenced to terms in the state penitentiary. Ruark, only, is before this court on writ of error and will be referred to as the defendant, or by name.

The evidence discloses the following chain of events. On April 5, 1962, Ruark was convicted of the crime of aggravated robbery in the District Court of the City and County of Denver. On July 3, 1962, Ruark, together with Ferguson and other prisoners in the Denver county jail, was transported from the jail to the Denver District Court for court appearances. A special bus was used for such purpose, in which Deputy Sheriff Gillette was the armed guard. On the return trip to the county jail the bus slowed down for a signal light. Ruark and Ferguson seized this opportunity to break through the front door of the bus and attack Gillette, the guard. Ruark attempted to take Gillette's pistol from him, which resulted in a struggle, and the two combatants fell to the ground. In the meantime, Ferguson had taken a gun from the driver of the bus and had strick Gillette a glancing blow, thereby dissuading him from participating in further combat. The gun in Ruark's possession was discharged, wounding Gillette. It was this set of circumstances upon which Counts 2, 3 and 4 were based--assault with a deadly weapon, assault to murder, and escape after conviction.

Following the altercation described above, the two desperadoes ran to the next corner where they accosted one Leone T. Fox, who had stopped her Corvair for a signal light. They approached Miss Fox from both sides, pointing guns toward her and demanding the use of her vehicle. She was prompt in her obedience to their demand and the two escapees made their departure with celerity in her yellow Corvair. This event was the basis of Count No. 1 of the information--aggravated robbery. It would serve no good purpose to review the evidence as to later events leading to the apprehension of the two dissatisfied and elusive bus passengers.

Prior to entering a plea, and while all four counts were pending, the two defendants, through their court-appointed counsel, joined in a motion for an order of severance of the charges in the information. The basis for the motion was Rule 8(a) and Rule 14, R.Crim.P., Colo. Rule 8(a) provides that two or more offenses may be charged in the same information, in a separate count for each offense, if the offenses charged are based upon the same act or transaction, or on two or more acts or transactions connected together and that they were properly charged in separate counts for each offense.

Rule 14 reads as follows:

'If it appears that a defendant or the prosecution is prejudiced by a joinder of offenses or of defendants in an indictment or information, or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants, or provide whatever other relief justice requires. * * *.' (Emphasis supplied.)

Under this portion of the rule, it is within the discretion of the court to grant or deny a motion for severance. The rule further provides:

'* * * However, upon motion any defendant shall be granted a separate trial as of right if the court finds that the prosecution probably will present against a joint defendant evidence, other than reputation or character testimony which would not be admissible in a separate trial of the moving defendant.' (Emphasis supplied.)

Defendants alleged in their motion for severance that each defendant would be prejudiced by a joinder of the offenses charged in the information. They alleged that each would be prejudiced by a joinder with the other, and both would be prejudiced by such joinder. Further, that the prosecution would present evidence against a joint defendant, other than reputation and character testimony, which would not be admissible in a separate trial of the other defendant.

In this case it was apparent on the face of the information that evidence of a prior conviction was an essential element of the alleged crime of escape after conviction. It must have been apparent at the time of trial that evidence of a prior conviction would be prejudicial to Ruark when applied to the first three counts of the information, which had no relationship to a prior conviction. The court abused its discretion in failing to sever at least Count No. 4 from the first three counts, and in failing to order a separate trial of the charge of escape after conviction. The proof of a prior conviction was an essential element of the charge contained in Count No. 4. Evidence of a prior conviction was not admissible relative to the first three counts unless and until defendant should voluntarily take the stand and afford the prosecution an opportunity to attack his credibility. This he did not do.

Judge Neil Horan, a judge of the Denver district court, was called and did testify as to the conviction of the defendant some three months prior to the date the conduct took place giving rise to the charges here under consideration. His testimony was admissible in the trial of the fourth count; its admission, however, was clearly erroneous and prejudicial to the defendant standing trial at the same time on the three other counts. This points up the error of the trial court in failing to grant defendant's motion for a severance of counts at the opening of the trial.

The controlling rule is clearly stated in Jaynes v. People, 44 Colo. 535, 99 P. 325:

'The general rule is that evidence is not admissible which shows or tends to show that the accused has committed a crime wholly independent of the offense for which he is on trial. It is not proper to raise a presumption of guilt on the ground that, having committed one crime, the depravity it exhibits makes it likely he would commit another. The reason for the rule is that no person shall be convicted of an offense by proving that he is guilty of another. Evidence of this character tends to create a prejudice in the minds of the jury against the accused, multiplies the issues, any may confuse and mislead the jury. The general rule should, therefore, be strictly enforced in all cases where applicable. * * *.'

Such is the general rule in Colorado, as declared in several Colorado cases. In Cargill v. People, 73 Colo. 218, 214 P. 387, it is succinctly stated as follows:

'The general rule is that evidence of other independent crimes is not admissible. * * * Warford v. People, 43 Colo. 107, 112, 96 Pac. 556; * * *.'

In the case of Stull v. People, 140 Colo. 278, 344 P.2d 455, the court held:

'A defendant should be tried only for the offense with which he stands charged. Gill v. People, 139 Colo. , 339 P.2d 1000, * * *.

'* * * Basic to our criminal law concepts is the commandment that: 'Thou shalt not convict a person of an offense by proof that he is guilty of another.''

In the case at bar, the court failed to follow the guidelines prescribed by this court in prior opinions for the admission of evidence such as is referred to here. This failure constituted reversible error relative to Counts numbered 1 and 2 in the information. The error was not cured by submitting a so-called limiting instruction in the general charge to...

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10 cases
  • State v. Liuafi, 7562
    • United States
    • Hawaii Court of Appeals
    • 18 Febrero 1981
    ... ... He was turning to leave when he was struck. The food fell. He was hit again and fell. Then there were a couple of people kicking him. He covered up his head. He didn't know how long he was kicked ... Page 1274 ... He was left lying there. He heard the car door ... Reversal of a conviction on one or more counts on an information does not dictate similar action as to all counts unless prejudice is shown. Ruark v. People, 158 Colo. 287, 406 P.2d 91, 94 (1965). See State v. Meyer, 61 Haw. 74, 595 P.2d 288 (1979) ...         We are convinced that ... ...
  • Romero v. People
    • United States
    • Colorado Supreme Court
    • 3 Noviembre 1969
    ... ... Few rules of law are more firmly established in this state than the one that evidence is not admissible which shows or tends to show that the accused has committed a crime wholly independent of the offense [170 Colo. 258] of which he is on trial. See Ruark v. People, 158 Colo. 287, 406 P.2d 91 and cases cited therein ... 'Ordinarily, in a prosecution for a particular crime, evidence which tends to show that the accused has committed ... Page 796 ... other crimes unrelated to the crime charged is irrelevant and inadmissible. Kostal v. People, ... ...
  • People v. Trujillo
    • United States
    • Colorado Supreme Court
    • 7 Mayo 1973
    ... ... All of the offenses arose out of the same transaction, and each of the offenses charged was closely related to each defendant and occurred at approximately the same time. See Ruark v. People, 158 Colo. 287, 406 P.2d 91 (1965); Roth v. United States, 339 F.2d 863 (10th Cir. 1964). Moreover, all of the offenses were of the same or similar character and were tied to a single scheme and plan. See American Bar Association Standards for Criminal Justice Relating to Joinder and ... ...
  • Small v. People, 23345
    • United States
    • Colorado Supreme Court
    • 21 Diciembre 1970
    ... ...         Generally, the matter of election by the People between counts is within the sound discretion of the trial court. Crim. P. 14. Ruark v. People, 158 Colo. 287, 406 P.2d 91 (1965); and Sanders v. People, 109 Colo. 243, 125 P.2d 154 (1942). Under the People's testimony it might be arguable as to whether the same acts could constitute the felony of confidence game and the felony of obtaining property by false pretenses. Under the ... ...
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1 books & journal articles
  • Chapter 1 - § 1.7 • JOINDER AND SEVERANCE
    • United States
    • Colorado Bar Association Colorado DUI Benchbook (CBA) Chapter 1 Preliminary Matters
    • Invalid date
    ...119 P.3d 491 (Colo. App. 2004); People v. Peterson, 633 P.2d 1088 (Colo. App. 1981), rev'd, 656 P.2d 1301 (Colo. 1983); Ruark v. People, 406 P.2d 91 (Colo. 1965). This issue arises with a defendant who is charged with both DUI and Driving Under Restraint (DUR) and the traffic record, which ......

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