Russell v. People

• Court: Colorado Supreme Court
• Writing for the Court: McWILLIAMS
• Citation: Russell v. People, 395 P.2d 16, 155 Colo. 422 (Colo. 1964)
• Decision Date: 31 August 1964
• Docket Number: No. 20402,20402
• Parties: John Doran RUSSELL, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.

Page 16

395 P.2d 16

155 Colo. 422

John Doran RUSSELL, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.

No. 20402.

Supreme Court of Colorado, In Department.

Aug. 31, 1964.

Anthony J. Faria, Denver, for plaintiff in error.

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

McWILLIAMS, Chief Justice.

By direct information Russell was charged in a first count with making an assault upon one Halligan with a deadly weapon with an intent to kill and murder. In a separate count in the same information Russell was also charged with so-called aggravated robbery, it being alleged therein that he forcibly stole, took and carried away a rifle, pistol, shotgun and currency from the person of one Mary Sarchet. To these charges Russell pled 'not guilty' and 'not guilty by reason of insanity'. In connection with the plea of not guilty by reason of insanity, the trial court pursuant to statute committed Russell to the Colorado State Hospital, there to be observed and examined. After such examination one Dr. Karcher, a staff doctor at the Hospital, advised the committing court that in his opinion Russell was legally sane.

Thereafter, on motion by Russell, the trial court appointed a private physician, one Dr. Delehanty, to further examine Russell. Such was done, and Dr. Delehanty also advised the trial court that in his opinion Russell was legally sane.

When the matter came on for trial, Russell--through his counsel--withdrew the plea of 'not guilty by reason of insanity' and elected to proceed to trial on the issues as made by the information, with its several counts, and his general plea of not guilty. The jury by appropriate verdicts adjudged Russell guilty of assault with a deadly weapon with intent to commit bodily injury, though not guilty of assault with intent to kill and murder, and also found him guilty of simple robbery, though not guilty of aggravated robbery. Russell's motion for new trial was denied and he was sentenced to an indeterminate term in the State Reformatory. By the present writ of error Russell seeks reversal of this judgment and sentence.

The facts which formed the basis for this prosecution border on the bizarre and in view of the several assignments of error merit some mention, although it is deemed unnecessary to relate the same in depth. Russell, age 15, lived with his parents nextdoor to the home of Mary Sarchet. On October 12, 1961 at about 9 o'clock in the morning Russell knocked on Mary's front door and when she opened the door Russell first asked permission to use the phone. Then, according to Mary, Russell pulled out a pistol and told her 'to do just as I was told and I wouldn't get hurt.' She further testified that Russell next demanded that she turn over to him a rifle, a shotgun and a pistol belonging to her husband. This she did. Later Russell ordered Mary and one Mabel McBeth, who had been called to the scene by Mary, to drive him out into the surrounding country. This they did and at a place selected by Russell he was let out of the car and the two women were permitted to return to their homes, with the admonition from Russell that 'you are not to tell anybody.'

Mary and Mrs. McBeth did 'tell' the sheriff's office and soon the authorities were searching the general area where Russell had been let out of the car. After dark Russell was finally located by one Hallagin a deputy sheriff. Hallagin testified that he was holding a lantern in his left hand at arm's length and that when he 'hollered' at Russell the latter shot him in the left wrist. About this time the mother of the defendant appeared at the scene, and she quickly managed to induce Russell to give himself up to the authorities without further violence.

Russell testified that he had merely 'borrowed' the guns from Mary with the intention of using them for hunting purposes. In connection with his shooting of Hallagin, Russell explained that he merely wanted to 'shoot out the light', and did not intend to hit the officer.

Dr. Delehanty was called as a witness by Russell and he testified that though in his opinion Russell was...