Beery v. U.S.

• Decision Date: 01 February 1873
• Citation: 2 Colo. 186
• Parties: BEERY v. UNITED STATES.
• Court: Colorado Supreme Court

2 Colo. 186

BEERY v. UNITED STATES.

Supreme Court of Colorado

February, 1873

Error to District Court of the First District.

THE indictment, which was presented at the April term, A. D 1872, contained four counts. In the first it was alleged that on the 21st day of July, 1871, at the Fairplay post-office in the county of Park, in the first judicial district, the prisoner feloniously did steal from and out of the post-office a certain packet contrary to the form of the statute, etc. The second count was substantially the same.

In the third count it was alleged that the prisoner entered the post-office at Fairplay, and took therefrom a certain packet containing certain articles of value, to wit: forty dollars in currency and one thousand dollars in gold-dust, which said packet was intended to be conveyed by post, and secreted, and embezzled the same. In the fourth count it was alleged that the prisoner feloniously did steal from the post-office at Fairplay a certain registered packet, which had lately before then, been put into the mail at Oro City, to be conveyed by post to Denver, which packet contained articles of value, to wit: $40 in currency, the property of William Stoner, and secreted, and embezzled the same. The prisoner moved to quash the indictmant, and assigned numerous objections, some of which are noticed in the opinion of the court. The motion was overruled. At the October term the prisoner challenged the array of petit jurors, and assigned the following reasons:

1. That the jurors had not been selected and summoned according to the law of Colorado.

2. That they were not summoned according to any law of the territory, nor of the United States.

3. That the jurors were summoned by the U.S. marshal, without authority of law, and contrary to the laws of the territory.

4. That the jurors were not selected and summoned from the body of said district, or from Park county, where the offense was alleged to have been committed.

5. That the venire facias to the marshal was issued with out authority of law, and contrary to the laws of the territory, and every other law, and was improperly tested.

6. That the U.S. marshal is not authorized to summon jurors in Colorado territory, but it is the sheriff's duty.

A general demurrer to this challenge was sustained. At the trial John B. Furay, a special agent of the post-office department, testified that he visited Fairplay about the 29th of October, 1871, and received from the prisoner thirty and one-half ounces of gold-dust and $100 in currency; that he had conversations with the prisoner at this time, and subsequently in the month of January, 1872, at Denver; that the meeting in Denver was in pursuance of a previous arrangement with the prisoner. The witness also stated that at the first conversation with the prisoner, in Fairplay, he advised the prisoner to make full restitution, and, if he did so, it would go easy with him; that it would be better for him to confess; that the door of mercy was open, and that of justice closed; that he threatened to arrest him, and expose his family, if he did not confess, and the like; that at the meeting in January he made similar promises and threats, to prevent the prisoner from running away. Upon this the prisoner's counsel objected, that the declarations were made under the influence of promises of favor and of threats, and the objection was overruled. The witness then detailed a conversation with the prisoner, in which the latter stated that the gold-dust, by him returned, was all that remained of that which he had taken, and promised to pay the balance. The prisoner also made some statements concerning an envelope in which the gold was inclosed at the time it was stolen, and which was subsequently found in the cellar of the building where the post-office was kept. Other admissions, made at the meeting in Denver, were also admitted. In addition to this, one David Browner testified that he had a conversation with the prisoner in the month of February, 1872; at another place, in the county of Park, during which he asked the prisoner why he confessed, and the prisoner replied that he could not bear to have the blame rest on innocent parties; that it was too much of a load. Upon this occasion nothing was said by Browner, or any others, to induce the prisoner to make any declarations. Testimony was also given tending to prove that a package, which had been mailed at Oro City, containing currency and gold-dust, as alleged, was stolen from the post-office at Fairplay, in the night-time, as alleged. Much evidence was given respecting the search for, and discovery of, the wrapper in which the package was inclosed. The prisoner was found guilty, and, upon motion for new trial, the objections to evidence were renewed. A motion was also made in arrest of judgment, in which it was alleged that the court was not held at a time appointed by law, and that there was no law authorizing the court, when sitting in the county of Arapahoe, to transact business arising under the constitution and laws of the United States, in the district at large. This motion was also overruled, and judgment was given against the prisoner.

Mr. J. Q. CHARLES, for plaintiff in error.

No brief filed by the United States Attorney.

HALLETT C. J.

The constitution of the district court is impeached upon the ground that it was not held at the proper time and place, and that the jurors, grand and petit, were not regularly selected and summoned. As to the place, it is contended that the court sitting in Arapahoe county could not take cognizance of an offense committed in another county, although in the same judicial district, a position which, it is said, is supported by the language of the organic act. Touching the judicial power, the act establishing this territory is substantially the same as that by which the territory of Wisconsin was organized in 1836, and which has served as a model for all territorial governments erected since that time. Clinton v. Englebrecht, 13 Wall. 444; 5 U.S. Stat. 10-12; id. 176. It provides that the territory shall be divided into three judicial districts, in each of which a district court shall be held, at such time and place as may be prescribed by law. In the Wisconsin act, and in some others copied from that, the language is, a district court, or courts, shall be held at such times and places as may be prescribed by law, by which provision was made for more than one court in each district, if more than one should be required. That the language of our act was inadvertently changed to the singular number, sufficiently appears from the 15th section, by which the governor was authorized to define the judicial districts, and appoint the times and places of holding courts in the several counties and subdivisions in each district, until the legislative assembly should otherwise provide. Klopfer v. Keller, 1 Col. 410.

In the territories of Wisconsin and Iowa, and probably in others prior to 1856, the several courts of each judicial district held and exercised the jurisdiction of circuit and district courts of the United States. U.S. v. Morgan, Morris (Iowa), 341; U.S. v. Dickey, id. 412; Mau-zau-ne-kah v. U.S. 1 Pinney (Wis.), 124. In the acts organizing those territories, as in our own, it was provided that each of the said district courts shall have and exercise the same jurisdictions in all causes arising under the constitution and laws of the United States, as is vested in the circuit and district courts of the United States, and the first six days of every term of said courts, or so much thereof as shall be necessary, shall be devoted to the trial of causes arising under the said constitution and laws. Upon this, it is plain, that within the territory assigned to each, the several courts of each district had the same jurisdiction under the laws of the United States; for the reference is to each of the said districts' courts, a phrase which comprehends all of the courts, whatever their number. Our act, being a copy of the Wisconsin act, must have received the same construction if there had been no further legislation upon the subject. In 1856, however, congress conferred upon the judges of the territories, power to appoint the times and places of holding courts in the several districts, and declared that courts should not be held at more than three places in any one territory. 11 U.S. Stat. 49. It was not in that act provided that the three places, therein referred to, should be in the several judicial districts; but as all the acts establishing territories, which were then in force, contained the provision for three districts, it was obviously the intention of congress that one court should be held in each district. By another act, passed two years later, the practice which had obtained prior to 1856 was restored 'for the purpose of hearing all matters and causes, except those in which the United States is a party.' 11 U.S. Stat. 366. We have then the act of 1856, reducing the number of courts to one in each district, which, by the organic act, was invested with the jurisdiction of circuit and district courts of the United States, and the act of 1858, again increasing the number but declaring that the courts thus added should not have jurisdiction in United States cases. Considered without reference to prior legislation, perhaps the act of 1858 would deprive all of the courts of federal jurisdiction, for it declares that the courts, held in the several counties, shall have jurisdiction in all matters and causes, except those in which the United States is a party, and does not, in terms, provide that any one of the courts shall have jurisdiction in the excepted cases. This ambiguity is explained by the acts preceding, and,...