Amis v. People

• Decision Date: 20 February 1928
• Docket Number: 11911.
• Parties: AMIS v. PEOPLE.
• Court: Colorado Supreme Court

265 P. 909

83 Colo. 400

AMIS v. PEOPLE.

No. 11911.

Supreme Court of Colorado

February 20, 1928

Rehearing Denied April 2, 1928.

Department 2.

Error to District Court, Bent County; A. C. McChesney, Judge.

David D. Amis was convicted of rape, and he brings error.

Affirmed.

Hillyer & Hillyer, of Denver, Henry E. Lutz and Harry S. Silverstein both of Denver, on the petition for rehearing, for plaintiff in error.

William L. Boatright, Atty. Gen., Charles Roach Deputy Atty. Gen., and Wm. W. Gaunt, Asst. Atty. Gen., for the People.

CAMPBELL J.

Plaintiff in error, Amis, was convicted of the rape of an unmarried girl 16 years of age and was sentenced by the court to confinement in the penitentiary. He brings error and relies for reversal upon the following assignments: (1) The court erred in denying the defendant's first and supplemental motions for a change of venue; (2) the jury should have been kept together and not allowed to separate during the trial; (3) the defendant, being entitled by the Constitution and laws of the state to a trial by a fair and impartial jury, did not have the same; (4) insufficiency of the evidence. We shall take up these assignments in the above order.

1. The information against the defendant was filed December 20 1926, at the regular November term of court for that year. The defendant's petition for a change of venue was not filed until the April term, on April 8, 1927. The petition for the change was supported by seven affidavits, one of which was by the defendant's attorney. They were substantially the same. The state filed seven counter affidavits, which also were practically identical. The people's affidavits squarely contradicted not only the alleged facts set forth in the seven affidavits in behalf of the defendant, but also the inferences therefrom, as to the belief of the affiants that a fair and impartial jury could not be had in the county. On April 28, 1927, the case was finally set for trial, and on that date the defendant presented his supplemental petition for a change of venue, and the two applications, resting on substantially the same grounds, were presented and determined at the same time. The supplemental affidavits, pro and con, relate to certain money transactions between the defendant and the husband of the prosecuting witness--such witness having been married after the alleged offense--and misconduct on the part of his counsel, and as to the defendant's illness. To the three affidavits supporting the supplemental petition, the state offered five counter affidavits. It thus appears that the affidavits which were offered by the defendant in support of his petition were expressly contradicted in all particulars by at least an equal number of affidavits by citizens of the county in behalf of the people. Under the general rule, decisions by trial courts upon applications of this charter are largely within their discretion. There is no showing in behalf of the defendant in the various applications of any facts or circumstances that takes this case out of that rule. The trial judge in passing upon the application, realizing the necessity for a fair and impartial trial, remarked, in substance, that he would see to it, in the impaneling of the jury (and we think he succeeded in doing so), that the defendant should get what he was entitled to--a body of men who could and would try him fairly and impartially and decide the case upon the evidence produced. We cannot say that prejudice was committed in this ruling of the court denying a change of venue.

2. Defendant requested the trial court to keep the jurors together. The trial court denied the request and gave as a reason the fact that no convenient place in the county seat could be secured where the jury could be kept over night. There was no objection to this ruling, and the defendant did not save an exception thereto. Strictly, therefore, he is not entitled to a review upon this assignment. Though this is a sufficient, there is a better, reason for sustaining the ruling because there has been, as we think, no showing of prejudice resulting to the defendant as the result of the separation of the jury. Elkin v. People, 5 Colo. 508; Chesnut v. People, 21 Colo. 512, 42 P. 656. Mere separation of a jury per se constitutes no ground for reversal.

3. In his motion for a new trial the defendant says that he did not have a fair and impartial trial by the jury because of its misconduct. The misconduct alleged is that after the case was submitted to the jury and before they had reached a verdict and while the jury was then divided on the question of the guilt or innocence of the defendant, certain members of the jury were communicated with by unauthorized outside persons, who, prior to the agreement of the jurors and immediately after they had been given a midnight supper or lunch by the bailiff in charge, and while some of them were standing on the sidewalk in front of the restaurant where they had taken refreshments, the night marshal of Las Animas talked to several members of the jury, out of the hearing of the bailiff in charge, and afterwards when the jury reconvened two of its members told other members of the jury...