Opinion
No. 18,757.
Decided February 1, 1960.
Defendant was convicted of burglary and brings error.
Affirmed.
1. CRIMINAL LAW — Appeal and Error — Motions for New Trial — Matters Considered. Where matters assigned as error in the Supreme Court were not presented to the trial court by motion for a new trial, they will not be considered.
2. APPEAL AND ERROR — Criminal Law — Writ of Error — Matters Considered — Motion for New Trial. Only those matters presented to the trial court in a motion for a new trial will be considered by the Supreme Court on writ of error.
Error to the District Court of Otero County, Hon. William L. Gobin, Judge.
Mr. NICK RUEDA, pro se.
Mr. DUKE W. DUNBAR, Attorney General, Mr. FRANK E. HICKEY, Deputy, Mr. GERALD HARRISON, Assistant, for defendant in error.
PLAINTIFF in error, hereinafter referred to as defendant, was convicted of burglary along with a co-defendant, Raymond Baca. The latter is not a party to this writ of error. Following verdict of the jury defendant filed a motion for new trial on the sole ground of newly discovered evidence. The motion recited that "one Albert Solis and one Filbert Baca admitted that they rather than the defendants herein committed the burglary, and further they have stated that they wish to confess the crime for which defendants Nick Rueda and Raymond Baca stand accused and on which the jury has found them guilty." Solis and Filbert Baca were called by defendant and Baca as witnesses in support of their motion for a new trial, and the evidence there adduced demonstrated the utter unreliability of their story, amounting to no more than an attempt on the part of these juveniles to exculpate not only Rueda, but Filbert Baca's brother, who was convicted with him under the joint information filed in the instant action.
Under the record as made the trial judge was correct in overruling the motion for new trial.
None of the matters assigned as error in this court was presented by the motion for a new trial, and it is apparent that Solis and Filbert Baca, by their self-contradicting testimony, added nothing to the case in exculpation of the defendant and his co-defendant.
It is unnecessary for us to quote from the several cases in this jurisdiction which have held that this court can consider only those matters presented to the trial court in a motion for a new trial. See Enyart v. People, 70 Colo. 362, 201 Pac. 564; Smith v. People, 120 Colo. 39, 206 P.2d 826; Welch v. People, 115 Colo. 42, 170 P.2d 781; Perry v. People, 116 Colo. 440, 181 P.2d 439, and Roll v. People, 132 Colo. 1, 284 P.2d 665.
In the instant case the jury was properly instructed, and rendered its solemn verdict finding defendant guilty as charged under evidence ample to establish guilt. A careful reading of the record discloses no prejudicial error in the trial.
The judgment is, therefore, affirmed.