Swift v. People, 23207
| Decision Date | 24 February 1970 |
| Docket Number | No. 23207,23207 |
| Citation | 171 Colo. 178,465 P.2d 391 |
| Parties | Willie Howard SWIFT, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error. |
| Court | Colorado Supreme Court |
Hecox & Tolley, Lawrence A. Hecox, Colorado Springs, for plaintiff in error.
Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., James F. Pamp, Asst. Atty. Gen., for defendant in error.
One Willie Howard Swift, hereinafter referred to as the defendant, was convicted by a jury of the crime of assault with the intent to murder (C.R.S.1963, 40--2--34) and immediately thereafter the same jury in a separate proceeding determined that he had also suffered three prior felony convictions. Based on these verdicts the defendant was then sentenced under the Habitual Criminal Act (C.R.S.1963, 39--13--1) to a life term in the state penitentiary. By this writ of error the defendant on a wide variety of grounds seeks reversal of the judgment and sentence thus entered.
Brief reference to the evidence adduced by the People upon trial is deemed helpful to an understanding of the controversy. It should be noted the defendant at trial elected to exercise one of his many constitutional rights and did not testify nor was any evidence offered in his behalf. This he is of course entitled to do under the constitutions of both the United States and Colorado. However, in so doing the defendant is in no position to thereafter complain if the jury draws inferences from the People's evidence which are unfavorable to him. Schamber v. People, 159 Colo. 102, 410 P.2d 514.
At about 3 o'clock on a September morn several Colorado Springs police officers were sent to investigate the report of a suspicious party in an unimproved area of open land at and near 25th Street and its intersection with Fountain Creek in El Paso County. Officers Caldwell and Stratton were the principal witnesses against the defendant. They testified that after surveying the scene at and near the intersection of 25th Street and Fountain Creek for several minutes they espied the silhouette of a person who then 'jumped up and started to run.' The officers said that they shouted 'hold it' to the fleeing figure and that the only response to their admonition was a series of shots directed at the aforesaid police officers. Both police officers testified that they saw 'flames' from the weapon fired at them; that the flames had a horizontal trajectory; and that the person firing at them was some thirty to thirty-five feet away from them. One officer stated that the 'white flash looked like it was aimed right for me--like a big arm reaching out and trying to get hold of me. * * *' The officers returned fire and Officer Stratton felled the fleeing person with one shot.
Moments later these same officers came upon the person of the defendant lying on the ground in an unconscious condition with a gun containing five empty cartridges located within two to three feet from him. A subsequent search of the area revealed a very recently stolen safe, a sledgehammer and crowbar lying adjacent thereto with a chisel stuck in the door of the safe and the handle lying on the ground. This was substantially all of the evidence produced by the district attorney in connection with the substantive charge of assault to murder. Evidence relating to the habitual criminal charge will be reserved for later comment.
The defendant contends that the evidence is legally insufficient to support a conviction for the crime of assault with intent to murder in that there was no evidence that this defendant had a specific intent to murder either Caldwell or Stratton. Relating to this matter of specific intent, it is also contended that the trial court erred in refusing to give the jury the particular form of instruction on specific intent tendered by the defendant. This entire line of argument we regard to be without merit. In our view the evidence does show, Prima facie, an intent on the part of the defendant to murder both Caldwell and Stratton. Moreover, instruction No. 12 concerning specific intent which was given the jury does meet the requirements of Armijo v. People, 157 Colo. 217, 402 P.2d 79. The reasoning of counsel that the failure of the district attorney to produce a spent bullet suggests that the defendant was perhaps firing blanks or at the best only firing warning shots in the air is rejected as too finely spun and not supported by the record.
Error is also predicated on the ruling by the trial court that the testimony regarding the finding of the safe constituted...
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People ex rel. Faulk v. District Court In and For Fremont County, 83SA386
...such count as one who was previously convicted of a felony." Id. at 417, 238 P.2d at 849-50 (emphasis added). See also Swift v. People, 171 Colo. 178, 465 P.2d 391 (1970) (at habitual-criminal phase, jury's only function is to determine how many prior felonies the defendant has In addition,......
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