Routa v. People , 117 Colo. 564 ( 1948 )

JOHN ROUTA, plaintiff in error, to whom we hereafter refer as defendant, was charged in an information in the district court of Denver with the crime of burglary with force in the first count, and with the previous conviction of felonies in counts 6, 7 and 8 of said information, pursuant to the habitual criminal statutes, S.L. '45, p. 310, c. 114. He entered a plea of not guilty with respect to the substantive count No. 1 of said information and denied his identity with respect to counts 6, 7 and 8. Count 2 was withdrawn by the trial court and counts 3, 4 and 5 relate to a codefendant not appearing here. The jury returned verdicts finding defendant guilty of burglary with force; also that he had suffered previous convictions as charged in counts 6, 7 and 8 of the information, and formal judgment followed. To review the proceedings in the district court defendant brings error.

It is first contended by counsel that defendant was prejudiced by the insertion in the caption of the information of several aliases, namely, as John Routa, alias Jack John Routa, alias Joun Route, alias Jack Ross, alias Porky Routa.

In support of the contention that prejudice resulted from the insertion of said aliases in the caption of the information, the only case cited and upon which defendant's counsel relies, is People v. Grizzel, 382 Ill. 11,46 N.E.2d 78, wherein the court said: "It is generally understood that a man's reputation is not enhanced by connecting many aliases with his name and certainly ifthe record does not offer substantial evidence of anyaliases it is improper to refer to the defendants as such in the instructions given by the court. People's instructions Nos. 1, 2, 7, 9, 10 and 11, should not have been given describing each of the defendants with a number of aliases. The aliases should have been eliminated before giving the instructions to the jury." (Emphasis supplied)

In the present case there was substantial evidence with respect to the aliases. In previous cases defendant was convicted under the name of "John Routa," "Jack John Routa, also known as `Porky Routa'," and under the name of "Jack Routa."

Our statute with respect to habitual criminals provides inter alia that, "Such former conviction or convictions, and judgment or judgments shall be set forth in apt words in the indictment or information." S.L. '45, p. 310, § 1. "On any trial under the provisions of this act a duly authenticated copy of the record of former convictions and judgments of any court of record for any of said crimes against the party indicted or informed against shall be prima facie evidence of such convictions and may be used in evidence against such party." S.L. '45, p. 311, § 2. "Whenever the fact of previous convictions of other offenses is included in an indictment or information, the jury, if they find a verdict of guilty of the offense with which he is charged, must also, unless the defendant admits the previous convictions, find whether or not he or she has suffered such previous convictions." S.L. '45, p. 311, § 3.

[1] When the defendant was arraigned, he could have admitted the previous convictions or denied his identity. As previously stated, he denied his identity and therefore, under the statute, it was incumbent upon the people to prove his identity and the previous convictions, and it became the statutory duty of the jury to "find whether or not he or she has suffered such previous convictions."

[2] During the trial there was much discussion between the court and counsel as to the propriety of leaving the aliases in the caption. The trial judge said, "Would it help any if we asked the district attorney not to read them, but to leave them in the caption, so if there is any significance they will be there?", to which defendant's counsel answered: "Absolutely. When it comes around to the forms of verdict — and I call it to your Honor's attention now — I intend to make request that the caption be not placed on those verdicts. It is enough to convict anybody." Again, as appears from the record, the court observed, "they allege the defendant John Routa was convicted as John Jack Routa," to which defendant's counsel replied: "Of course I won't object to that." Also in the record we find that defendant's counsel conceded that it was proper to place in the caption an alias, if defendant had previously been convicted under such name, and at one place counsel stated: "We admit all three convictions. That is all that is required. That satisfies the allegations. We cannot deny it later to this jury. They have proven that. Not only that, we admit them. I object to this cross-examination. It only takes time and encumbers the record. The Court: You have not admitted them exactly as set out in the information. Mr. Dickerson: Then I will do so now."

In the instructions to the jury, at the request of counsel, the court omitted all aliases except Jack John Routa and Porky Routa.

In view of the above circumstances defendant was not prejudiced by the insertion in the caption of the information the several aliases to which reference has been made above, and the court did not err in denying defendant's motion to strike said aliases.

It is unnecessary to repeat the objections to the promiscuous use of many aliases in informations, and the rules in relation thereto. They are fully discussed in the following authorities: 42 C.J.S. 1017, § 127 e.; D'Allessandrov. United States, 90 F.2d 640, 641; People v.Maroney, 109 Cal. 277, 41 Pac. 1097; Antone v. State,49 Ariz. 168, 65 P.2d 647, 649; Commonwealth v. Torrealba,316 Mass. 24, 54 N.E.2d 939.

[3] It next is contended that the court erred in refusing to permit defendant's counsel to inform the jury on voir dire, that the penalty, if defendant was convicted on all counts, was life imprisonment; that the penalty is automatic and fixed by the legislature; and that the court is vested with no discretion therewith.

With respect to the above contention the following occurred on the voir dire examination of the jury:

"Mr. Dickerson: (To Prospective Juror Pegram): You understand this habitual offenders' act involved in this case, do you not, and the serious consequences it entails? Juror: Yes.

"Mr. Dickerson: You would give this case the consideration it deserves and bear in mind its grave consequences? Juror: Yes.

"Mr. Dickerson: In other words, whatever you do in this case makes it automatic, as far as the habitual offenders' act is concerned; his Honor Judge Steele has no discretion in that matter, either, do you understand that?

"Mr. Anderson: It has nothing to do with it, and we object.

"Mr. Dickerson: We think the jury is entitled to know about the habitual offenders' act and to know its consequences, because the jury have nothing to do with the punishment under that act and the court has nothing to do with it, and the jury is entitled to know what kind of a case they are trying. It is not a question of any penalty the court is going to impose, or anything of that kind, and the jury have nothing to do with it. I submit that we have a right to show that the penalty has been fixed automatically by the legislature.

* * *

"The Court: I think counsel for the defense is entitled to tell the jury the statute fixes the penalty, without telling the jury what the penalty is."

After further discussion out of the presence of the jury, the court said:

"I would like to say, for the record, that at this point all of the members of the panel from which this jury will be chosen were in the courtroom when the examination of the jurors in the box was being made by defendant Routa's counsel, Mr. Dickerson, and presumably they all heard his statements to the effect that the defendants were charged in the Information with being habitual criminals under the statutes of Colorado, and that the effect of a verdict of guilty on the counts charging former convictions would be to increase the penalties to be imposed, provided the jury should find the defendants guilty of burglary as charged in the first two counts. In fact, from what counsel for defendant Routa has already told the jurors, they could very easily infer and believe that the defendants, upon a conviction, could be sentenced to life imprisonment in the penitentiary.

"It is the order of the court that counsel for the defense and for the People refrain from now on, in their interrogation of the jurors, from making any reference to the penalties and punishment which may be inflicted upon the defendants in event of conviction of being habitual criminals. Any further reference to it, on either side, could and probably will result in a mistrial."

We have many times held that matters, such as the above, are clearly within the sound discretion of the trial court, and that in the absence of abuse of discretion its ruling thereon will not be disturbed on review.Van Houton v. People, 22 Colo. 53, 43 Pac. 137; Wheelerv. People, 63 Colo. 209, 165 Pac. 257; Flor v. People,73 Colo. 403, 215 Pac. 875. We conclude that the trial court did not abuse its discretion, and that the rights of the defendant were not prejudiced.

[4, 5] It next is contended that the trial court "improperly allowed the state to initiate evidence of the reputation of the accused" in permitting proof of previous convictions. In that connection defendant freely admits that no objection was made thereto, "through our inadvertence."

The obvious answer to the above contention is that, the people did not initiate the matter but on the contrary, the information concerning his former convictions was first brought before the jury by the defendant himself on voir dire examination of the jury as above set out. It therefore appears that any prejudice which might have resulted to the defendant by reason thereof was caused by defendant himself through his counsel, and not the district attorney. A second answer is that, three witnesses testified concerning the prior convictions of defendant, identified him as the person previously convicted, and the record of such convictions was introduced in evidence as the statute provides. No objection whatsoever was made by defendant's counsel to any of such evidence. By the instructions, the issues with respect to counts 6, 7 and 8, being the habitual criminal counts, were expressly submitted to the jury by the court as being a part of the issues which the jury was called upon to determine. There was no objection whatever by defendant's counsel to said instructions.

A further answer to the last contention of plaintiff in error is that, section 488, chapter 48, '35 C.S.A., provides: "Hereafter in all criminal cases tried in any court of this state, the accused, if he so desire, shall be sworn as a witness in the case, and the jury shall give his testimony such weight as they think it deserves; but in no case shall a neglect or refusal of the accused to testify be taken or considered as any evidence of his guilt or innocence."

Section 1, chapter 177, '35 C.S.A. as amended (S.L. '41, C. 236, § 1), provides: "All persons, without exception, other than those specified in sections 2, 3, 4, 5, 8, 9 and 10 of this chapter, may be witnesses. Neither parties nor other persons who have an interest in the event of an action or proceeding shall be excluded; nor those who have been convicted of crime; nor persons on account of their opinions on matters of religious belief; although in every case the credibility of the witness may be drawn in question, as now provided by law, but the conviction of any person for any felony may be shown for the purpose of affecting the credibility of such witness; and the fact of such conviction may be proved like any other fact not of record, either by the witness himself (who shall be compelled to testify thereto), or by any other person cognizant of such conviction, as impeaching testimony or by any other competent testimony; provided, however, that evidence of a previous conviction of a felony where the witness testifying was convicted five years prior to the time when the witness testifies shall not be admissible in evidence in any civil action."

[6, 7] It was the defendant's right and privilege under the above statutes, to refuse to take the witness stand in his own behalf and the district attorney would be precluded, in that event, from making any comment to the jury concerning his failure to testify. However, where a defendant elects, as he did here, to exercise the privilege of becoming a witness in his own behalf, his credibility is thereupon open to question, his testimony subject to the ordinary rules of evidence and to impeachment, and he may be cross-examined in the same manner and to the same extent as any other witness in the trial. Tarling v. People, 69 Colo. 477, 194 Pac. 939, note 25 A.L.R. 340; Dennison v. People, 65 Colo. 15,174 Pac. 595; Hendricks v. People, 78 Colo. 264, 241 Pac. 734;Davis v. People, 77 Colo. 546, 238 Pac. 25; Dively v.People, 74 Colo. 268, 220 Pac. 991, cited in note, 58 A.L.R. 87; Dockerty v. People, 96 Colo. 338, 351, 44 P.2d 1013.

[8] Since the defendant herein elected to exercise the statutory privilege of testifying, all of the facts concerning his previous convictions became admissible. When he accepted the privilege conferred by the statute, he also accepted whatever disadvantages resulted therefrom.

Under the above circumstances defendant is completely precluded from asserting or claiming that he was in any manner prejudiced by the introduction in evidence of facts concerning his previous convictions and any right which he may have had to object thereto has been waived. Martinez v. People, 55 Colo. 51,132 Pac. 64; Holland v. People, 30 Colo. 94, 69 Pac. 519; Spoov. State, 219 Wis. 285, 262 N.W. 696; Salisbury v. State,80 Okla. Crim. 13, 156 P.2d 149.

[9] We approve of the procedure outlined in the dissent of Mr. Justice Hilliard with the modification that where defendant testifies in his own behalf, as here, or where evidence of former convictions is introduced in impeachment, the question of former convictions is thus opened for consideration and resolution, and the main charge may then be submitted and disposed of without separation.

We have carefully examined the record with respect to other contentions of defendant's counsel and find such contentions to be wholly without merit.

The judgment is therefore affirmed.

MR. JUSTICE HILLIARD, MR. JUSTICE ALTER, and MR. JUSTICE LUXFORD dissent.