Vaughn v. People

• Decision Date: 14 June 1971
• Docket Number: No. 23734,23734
• Citation: 175 Colo. 124,485 P.2d 878
• Parties: Jimmy VAUGHN, Jr., Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 878

485 P.2d 878

175 Colo. 124

Jimmy VAUGHN, Jr., Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.

No. 23734.

Supreme Court of Colorado, In Department.

June 14, 1971.

Rollie R. Rogers, State Public Defender, J. D. MacFarlane, Chief Deputy State Public Defender, T. Michael Dutton, Deputy State Public Defender, Edward H. Sherman, Public Defender for City & County of Denver, Stephen C. Rench, Deputy Public Defender for City and County of Denver, Isaac Mellman, Sp. Asst. Public Defender, Denver, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Eugene C. Cavaliere, Asst. Atty. Gen., Denver, for defendant in error.

MAX C. WILSON, District Judge. ^*

Jimmy Vaughn, Jr., herein referred to as defendant, brings this writ of error in which he seeks reversal of convictions of the crime of robbery and the crime of assault with a deadly weapon. Both charges arose out of related transactions, and concurrent sentences were imposed.

Motion for new trial was filed July 28, 1967, and denied on January 28, 1968. Defendant's position that the trial court erred in denying defendant's motion for judgment of acquittal as to both counts has been abandoned here.

Defendant contends that the trial court committed prejudicial error in verbally instructing the jury to the effect that insane people are not responsible. We do not find such a statement in the record. Under such circumstances, the case of Tomeo v. People, 58 Colo. 26, 404 P.2d 287, is dispositive. In Tomeo, we said:

'It may be that if one reads between the lines it might possibly be assumed that the Tomeos somehow answered the inquiry of the court in the affirmative. However, on review by writ of error we are bound by the record as we find it and are not at liberty to add to it by reading between the lines. * * *'

The defendant contends further that the trial court committed prejudicial error in allowing defendant to be charged and convicted of more than one offense. It is asserted that there was a merger of offenses; or, in the alternative, that assault with a deadly weapon is a lesser included offense of aggravated robbery. The case of Johnson v. People, Colo., 484 P.2d 110 (1971), disposes of these points adversely to the defendant.

The testimony of the victim, Bruggerman, is not contradicted and clearly establishes that he was struck with a hand gun by the defendant after the commission of the robbery.

Defendant complains of the giving of instruction number 15, which is the usual instruction on intoxication. There was no error in giving this instruction. Defendant's tendered instruction...