42 P. 652 (Colo. 1895), Taylor v. People

Citation:42 P. 652, 21 Colo. 426
Opinion Judge:CAMPBELL, J. (after stating the facts).
Party Name:TAYLOR v. PEOPLE.
Attorney:[21 Colo. 427]Charles A. Johnson and V. A. Elliott, for plaintiff in error. B. L. Carr, Atty. Gen., and F. P. Secor, Asst. Atty. Gen., for the People.
Case Date:September 30, 1895
Court:Supreme Court of Colorado
 
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Page 652

42 P. 652 (Colo. 1895)

21 Colo. 426

TAYLOR

v.

PEOPLE.

Supreme Court of Colorado

September 30, 1895

Error to district court, Conejos county.

Abe Taylor was convicted of murder, and brings error. Affirmed.

An information was filed in the district court of Conejos county charging the plaintiff in error, Abe Taylor, and William Thompson, with the murder of Charles Emerson; Taylor as principal, and Thompson as accessory. This information was verified by the district attorney, following which verification was an affidavit by Robert C. Cooper to the effect that the facts stated in the foregoing information were true, and the offense therein charged was committed of his (Cooper's) own personal knowledge. A plea of not guilty was entered, trial had upon the issue thus joined, and a verdict of guilty of murder of the first degree was returned against Taylor. Upon this verdict the plaintiff in error was sentenced by the court to be hanged, and from this judgment he has brought his case here upon writ of error.

Page 653

[21 Colo. 427]Charles A. Johnson and V. A. Elliott, for plaintiff in error.

B. L. Carr, Atty. Gen., and F. P. Secor, Asst. Atty. Gen., for the People.

CAMPBELL, J. (after stating the facts).

Of the numerous errors assigned there are but three which we deem necessary to consider. The first relates to the right and authority of the district attorney to file the information; the second, to erroneous rulings of the court upon the evidence; the third, to errors in the instructions given by the court.

1. The general objection is urged by counsel for plaintiff in error that their client was tried and convicted without due process of law. The specific error assigned thereunder is that the defendant was given no preliminary examination, and did not waive the same. This being so, they contend that, before the district court had any authority to allow an information to be filed, an ffidavit, as provided for in section 8 of the information act of 1893, must first be filed, and that this was not done. Neither a motion to quash nor other pleading attacking the information upon any ground was filed by the defendant; but, on the contrary, he entered his plea of not guilty, and went to trial upon the merits. If there was no preliminary examination (as to which we are not advised by anything in the record), it was the duty of the defendant, at the proper time, and in the proper proceeding, to show that fact to the district court, and the record should disclose the existence of the alleged defect in jurisdiction; and if, as a matter of fact, there was no preliminary [21 Colo. 428] examination, and the affidavit required by section 8 had not been filed in the district court, it was likewise the duty of the defendant in an appropriate way to call the attention of the district court to the absence of the necessary affidavit. But, as the defendant entirely neglected to avail himself of his proper remedy at the appropriate time, it is too late for him to be heard with respect thereto in this court, even if there be merit in his contention. Brown v. People (Colo. Sup.) 36 P. 1040, and cases cited.

2. A brief summary of the facts will elucidate the discussion of the errors assigned to the rulings of the trial court in sustaining objections to questions propounded by defendant's counsel. The evidence generally tended strongly to show that Taylor and his codefendant, Thompson, had stolen a wagon load of oats, which they had brought from near the town of La Jara to the town of Alamosa for the purpose of disposing of the same. The owner of the oats, having discovered the theft, gave notice thereof to a deputy sheriff at La Jara, who sent a telegram to Emerson, the town marshal and constable at Alamosa, requesting him to detain the supposed thieves. Upon receipt of this message Emerson went to the store of one Gerteisen, in the town of Alamosa, where...

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