Opinion
No. 22609.
Decided September 16, 1968.
Defendant was convicted of aggravated robbery and conspiracy to commit aggravated robbery and brought error.
Reversed.
1. INSTRUCTION, CRIMINAL — Right of Accused — Legal Questions — Jury — True Verdict. An accused has the right to insist that the court instruct the jury on all legal questions in order to reach a true verdict.
2. CRIMINAL LAW — Omission — Prejudice — Fair Trial — Deprivation — Reversal — New Trial — Error. In Colorado, if an omission is so prejudicial as to deprive the accused of a fair trial, the conviction and judgment will be reversed on review and a new trial granted because of error in law.
3. INSTRUCTION, CRIMINAL — Guilt — Crime — Intent — Omission — Prejudicial Error. Generally, an instruction which makes the question of guilt depend solely upon the intentional doing of an unlawful act constitutes prejudicial error in cases where the specific animus as a material element of the crime for which the accused was convicted is omitted.
4. ROBBERY — Aggravated — Failure to Give Instruction — Reversal of Conviction. Failure of trial court to deliver an instruction on specific intent required reversal of conviction for aggravated robbery.
5. CRIMINAL LAW — Jury — Meaning — Plain — Verdict — Unnecessary Language — Surplusage. Ordinarily, when the meaning of the jury is plain, unnecessary language in its verdict is treated as surplusage and does not invalidate it.
6. INSTRUCTIONS, CRIMINAL — Verdict of Guilty — Specific Intent — First Count — Relationship — Second Count — Error. A verdict of guilty cannot stand where the element of specific intent is material as to one count of the information or indictment which is related to and joined with another when the court's instructions on intent covering either count are erroneous.
Error to the District Court of the City and County of Denver, Honorable George M. McNamara, Judge.
John D. McDowell, for plaintiff in error.
Duke W. Dunbar, Attorney General, Frank E. Hickey, Deputy, Aurel M. Kelly, Special Assistant, for defendant in error.
Eugene Dale Gonzales, hereinafter referred to as the defendant, was, in February 1966, tried by a jury and convicted of aggravated robbery and conspiracy to commit aggravated robbery.
After denial of a motion for a new trial he was sentenced to the penitentiary on each count for a term of from five to eight years, the sentences to run concurrently.
To review the judgments, he prosecuted this writ and specifies error which, he contends, was prejudicial to him.
At the trial, the defendant made a request for a jury instruction covering the law of specific intent and tendered to the court an instruction on that subject. The request and instruction were refused by the court.
The essential question, then, upon which this writ of error turns, is: Should the trial court have delivered to the jury an instruction on specific intent, or was the court's instruction defining general intent sufficient?
[1,2] 1. Ingrained in the law is the right of an accused to insist that the court instruct the jury on all legal questions in order to reach a true verdict. Without proper instructions, the jury does not have the necessary guidance to consider the evidence presented to it. In Colorado, if an omission is so prejudicial as to deprive the accused of a fair trial, the conviction and judgment will be reversed on review and a new trial granted because of error in law. Accordingly, we find it necessary to reverse this case for the reasons which follow.
2. Generally, an instruction which makes the question of guilt depend solely upon the intentional doing of an unlawful act constitutes prejudicial error in cases where the specific animus as a material element of the crime for which the accused was convicted is omitted.
The case here considered is within the inhibition of the general rule which is followed in this jurisdiction. There are many decisions on this point stating in what cases (aggravated robbery included) an instruction on "specific intent" must be delivered to the jury, and some of which also legally define that contentious phrase. Moyer v. People, 165 Colo. 583, 440 P.2d 783; Bishop v. People, 165 Colo. 423, 439 P.2d 342; Vigil v. People, 158 Colo. 268, 406 P.2d 100; Armijo v. People, 157 Colo. 217, 402 p. 2d 79; Shreeves v. People, 126 Colo. 413, 249 P.2d 1020; Funk v. People, 90 Colo. 167, 7 P.2d 823.
In Funk, supra, this court stated:
"If the legislature had deemed it advisable to do so, it might well have left the element of intent out of the statute defining aggravated robbery, but having failed to do so, intent became a necessary element in the proof of this offense, and it is our plain duty to give the statute its full force and effect."
3. It might be said that the conspiracy conviction should be upheld because there are no grades of that offense other than to commit a felony or a misdemeanor; and that the court's instruction on intent was proper for that count.
The verdict returned by the jury for the conspiracy charge found the defendant guilty of conspiracy to commit robbery with a dangerous weapon, to wit, a gun, with intention, if resisted, to maim or kill the prosecuting witness as charged in the second count of the information.
We are aware that ordinarily when the meaning of the jury is plain, unnecessary language in its verdict is treated as surplusage and does not invalidate it.
Considering, however, that no instruction on specific intent was given for the charge of aggravated robbery, the effect which the form of verdict on the conspiracy charge submitted to the jury might have had upon its deliberations in the whole case is unknown, even to the jury.
We do not know but that the jury might have arrived at other verdicts and that the trial court might have pronounced different judgments with reference to both counts of the information if the required instruction on specific intent had been delivered to the jury. It is not within our province, nor the trial court's province, to speculate upon that feature of the case.
We hold that a verdict of guilty cannot stand where the element of specific intent is material as to one count of the information or indictment which is related to and joined with another when the court's instructions on intent covering either count are erroneous.
It necessarily follows from the foregoing that a fundamental error occurred in the trial of this case which was prejudicial to the defendant.
Accordingly, the judgments entered upon the verdicts of the jury are reversed and the cause is remanded for a new trial.
MR. JUSTICE KELLEY and MR. JUSTICE GROVES specially concur.
MR. CHIEF JUSTICE MOORE and MR. JUSTICE McWILLIAMS dissent.