Shore v. District Court of First Judicial Dist. of State, 17091

• Decision Date: 18 May 1953
• Docket Number: No. 17091,17091
• Citation: 127 Colo. 487,258 P.2d 485
• Parties: . OF STATE et al. Supreme Court of Colorado, en Banc
• Court: Colorado Supreme Court

Page 485

258 P.2d 485

127 Colo. 487

SHORE v. DISTRICT COURT OF FIRST JUDICIAL DIST. OF STATE et al.

No. 17091.

Supreme Court of Colorado, en Banc.

May 18, 1953.

Isaac Mellman and Gerald N. Mellman, Denver, for petitioner.

Philip S. Van Cise, Denver, for respondents.

MOORE, Justice.

This is an original proceeding instituted by petitioner Harold Alden Shore for the issuance of a writ of prohibition. Upon presentation of the petition on file herein we issued our rule to show cause why an order entered by the district court of Adams county should not be vacated. This order was entered February 16, 1953, and purported to consolidate for trial two criminal cases pending in said court.

Respondents filed their answer and brief. The undisputed material facts as shown by the petition and answer are as follows:

February 3, 1953, the district attorney, within and for the First Judicial District, filed an information--numbered C-1370--in the district court of Adams county. In this information it was charged that on January 31, 1953, eleven persons named therein as defendants did unlawfully and feloniously enter into a conspiracy to commit the crime of obtaining money and other property by means of the confidence game. Thereafter, and on February 11, 1953, the district attorney filed in said court as separate information--numbered C-1372--in which petitioner and one Donald Klita Shore were charged with the offense of entering into a conspiracy to obtain money and other property by means and by use of the confidence game. Neither of these defendants was named as a party in the first information.

February 16, 1953, six additional counts were filed in cause No. C-1370, which said counts charged Clyde Smaldone and Eugene Smaldone, two of the defendants in said action, with having previously been convicted of separate and distinct felonies. On the same day, the district attorney filed his motion in said actions requesting that they be consolidated, and as grounds therefor stated that at the time cause No. C-1370 was filed he did not know that the two defendants named in No. C-1372 'were parties with the defendants named in case No. C 1370 in the Conspiracy to Commit Confidence Game.' It further was stated in the motion that petitioner and said Donald Klita Shore should have been named as codefendants in action No. C-1370 and 'should be tried with the defendants therein on that court.' Over the objection of the petitioner the court granted the motion to consolidate.

Questions to be Determined.

First: Where two separate criminal informations are filed against particular defendants, none of whom is accused in both informations, can a defendant thus separately charged in one information be forced, over his objection, to stand a joint trial with defendants named in the other information which charges the commission of a crime of the same general nature?

This question is answered in the negative. In 23 C.J.S., Criminal Law, § 931, at page 212, is the following statement: 'In determining the rights of defendants separately indicted to joint or separate trials, the court is bound by the contents of the indictment or information and cannot look beyond its averments.' The informations which form the basis of this controversy contain no averments of any kind which tend in the least to identify any of the transactions which formed the basis of the conspiracies alleged. While it was alleged in each of said informations that the conspiracies were entered into 'on the 31st day of January, A.D. 1953, at the said County of Adams in the State of Colorado,' the district attorney is not compelled to prove the existence of any conspiracy as of that date. Thus, from all that appears from the contents of the informations, separate and distinct offenses are charged against separate defendants. In People v. Foward, 134 Cal.App. 723, 26 P.2d 532, the court used the following pertinent language:

'Where, as here, neither information refers in any way to the other, there can be no consolidation, regardless of evidence produced during the trial indicating that the charges relate to the same set of circumstances. This is so because in determining the rights of the parties relative to joint or separate trials in such cases, the trial court is bound by the contents of the information or indictment and cannot look beyond its averments. The matter is jurisdictional. In case the trial court, as it did here, disregards the defendant's rights and unlawfully consolidates trials, it is not mere error which can be cured by the application of the provisions of section 4 1/2 of article 6 of the Constitution. All of the above legal propositions are decided in People v. O'Connor, 81 Cal.App. 506, 254 P. 630, which authority is determinative of this appeal.'

The case of Gallaghan v. United States, 8 Cir., 299 F. 172, is authority for the proposition that two or more indictments or informations, in which different defendants are accused, cannot be consolidated for trial over the objections of any defendant named therein.

It follows from the foregoing that a joint trial of petitioner, who was named defendant in cause No. C-1372, with the eleven defendants named in cause No. C-1370, would have been conducted in disregard of the substantial rights of the defendants in each case, and any defendant who objected to said consolidation would have been entitled to a new trial in the event he was convicted. If, in fact, the defendants named in the two indictments were parties to but one conspiracy, the remedy of the district attorney, upon ascertaining that additional defendants should have been named in the information first filed, was to file a new information naming all persons who were connected with the crime, as defendants. The fact that there might be prior separate informations pending against some of the defendants thus named would not preclude their trial on the subsequent information, against additional joint defendants, charging substantially the same crime. 23 C.J.S., Criminal Law, § 931, page 213; United States v. Twentieth Century Bus Operators, 2 Cir., 101 F.2d 700.

Second: Do the admitted facts in the instant case present a situation in which the original jurisdiction of this court may be invoked by petition for writ of prohibition?

This question is answered in the affirmative. Article VI, section 3, of the Constitution of the State of Colorado, confers upon this court original jurisdiction in certain matters. It provides, inter alia: 'It [Supreme Court] shall have power to issue writs of habeas corpus, mandamus, quo warranto, certiorari, injunction, and other original and remedial writs, with authority to hear and determine the same.' This original jurisdiction is discretionary. Clark v. Utilities Commission, 78 Colo. 48, 239 P. 20. It may neither be enlarged nor abridged by the legislature. Leppel v. District Court, 33 Colo. 24, 78 P. 682.

In the decisions of this court...