Wolff v. People

• Decision Date: 30 April 1951
• Docket Number: No. 16457,16457
• Citation: 230 P.2d 581,123 Colo. 487
• Parties: WOLFF v. PEOPLE.
• Court: Colorado Supreme Court

Page 581

230 P.2d 581

123 Colo. 487

WOLFF v. PEOPLE.

No. 16457.

Supreme Court of Colorado, en Banc.

April 30, 1951.

Rehearing Denied June 25, 1951.

Isaac Mellman, Denver, for plaintiff in error.

John E. Metzger, Atty. Gen., Raymond B. Danks, Asst. Atty. Gen., for defendant in error.

MOORE, Justice.

We will hereinafter refer to plaintiff in error as defendant.

An information was filed in the district court of the City and County of Denver, in which defendant was charged in separate counts with having committed the crime of burglary with force, burglary without force, grand larceny, and receiving stolen property. The information also contained four habitual criminal counts in which it was alleged that the defendant was convicted of burglary in Denver on March 18, 1933; that he was convicted of burglary in Denver on June 9, 1933; that he was convicted of murder in the State of Missouri on March 7, 1936; and that he was convicted of burglary in Denver on April 18, 1942.

Defendant entered pleas of not guilty, and not guilty by reason of insanity. Prior to trial the latter plea was withdrawn and defendant stood trial solely upon his plea of not guilty. The jury returned verdicts finding the defendant guilty of burglary with force and guilty of larceny of property of the value of $911. Following the receipt of these verdicts the trial court, before the same jury, proceeded to trial on the habitual criminal counts. Prior to the presentation of evidence on these counts, the court permitted defendant's attorney to re-examine the jurors concerning their qualifications to serve. One juror, in response to questions, replied that she was suffering from an 'upset stomach.' The defense challenged this juror for cause, but the challenge was denied. Counsel for defendant then sought to exercise the peremptory challenges which had not been exhausted in the selection of the jury in the first instance, and thereby replace certain of the jurors who had served in the trial of the substantive offenses. This request was denied.

Following the presentation of evidence the jury found that defendant had been previously convicted as charged in the information. Motion for a new trial was filed, argued and denied, and the mandatory judgment of life imprisonment, provided by statute, was imposed by the court.

Forty-one separate assignments of error are argued by counsel for defendant under twenty-one headings. We have carefully considered the argument made under each of these separate headings and conclude that much thereof is insufficiently persuasive to warrant detailed treatment in this opinion.

Upon the trial of the substantive offenses contained in the first four counts of the information, the trial court admitted evidence tending to establish the fact that defendant had committed nine burglaries in the City and County of Denver within a period of about seven months prior to the date of the substantive offenses charged in said counts. This evidence was admitted over the objection of defendant's attorney, and the court then properly instructed the jury concerning the limited purpose for which such evidence was received. Again, while the evidence of these offenses was being presented, the trial court made a further statement as follows: 'Ladies and gentlemen of the jury, the evidence of other offenses, as the court instructed you yesterday, is to be received merely to show motive, plan and design. The defendant is solely on trial for the burglary and larceny of the Beck home and is not on trial for any other similar offense, and the sole purpose of the introduction of that evidence is whether it shows motive, plan and design, and you should so receive it with great caution.'

Instruction No. 20 given by the court correctly advised the jury that the evidence relating to other offenses was admitted 'only as bearing upon the question of whether or not the defendant had a plan or design to produce a result of which the act charged in the information was a part, and you can consider such evidence for no other purpose.'

Under the authority of Perry v. People, 116 Colo. 440, 181 P.2d 439, and the numerous cases therein cited, it is clear that no error was committed in the admission of the evidence relating to said similar offenses. The trial court was careful to instruct the jury concerning the limited purpose for which this evidence was admitted.

The trial court admitted in evidence, over objection of defendant's attorney, the oral statements made by defendant to police officers, in which he admitted the burglary charged in the information and in which he further confessed participation in numerous other burglaries committed in Denver. Defendant's counsel objected to the admission of these statements upon the ground that they were involuntary and were induced by statements and promises of police officers to release his wife from custody if he would confess his guilt. The trial court conducted a preliminary hearing out of the presence of the jury to determine whether or not this evidence should be admitted. At the conclusion of this hearing the court ruled the evidence admissible and thereafter submitted to the jury, under proper instruction, the question as to whether the statements were voluntarily made. The procedure followed by the trial court in this connection was in harmony with our pronouncement in Downey v. People, 121 Colo. 307, 215 P.2d 892, 897, wherein we said: 'Whenever there is evidence, not sufficient to require exclusion of the alleged confession, but sufficient to raise a question as to the weight to which it is entitled at the hands of the jury, the court must refer the question of the voluntarity of the confession to the jury under proper instructions.'

It is contended by counsel for defendant that the trial court erred in denying the challenge for cause of the juror Carlton, who expressed a reluctance to serve as a juror in the determination of the habitual criminal count. Her reluctance stemmed from an upset stomach. However this juror stated that she could listen to the evidence conscientiously and return a fair verdict, and, assuming that a challenge of a juror for cause was proper at that stage in the proceedings, there was no error in denying said challenge. Moreover, the juror having been examined on voir dire at the beginning of the trial, and having been accepted, she became a juror for all purposes and could not be challenged for cause at any point thereafter upon the ground that by reason of illness she was unable to continue. If a juror becomes ill in the course of a trial of a felony case and no extra juror has been sworn to provide for such contingency, there is no alternative but to discontinue the trial. The juror cannot be challenged for cause.

Error is assigned upon the refusal of the trial court to permit the exercise of peremptory challenges of jurors following the return of the verdicts finding the defendant guilty of burglary and larceny. It is contended that since seven peremptory challenges had not been used when the jury was first accepted, and since the trial court permitted extended re-examination of the members of the jury following the receipt of said verdicts, error was committed by the trial court in refusing to excuse jurors to whom challenges might be directed following said re-examination. The answer to the question thus raised involves a consideration of...