Boyle v. People

Decision Date01 April 1878
Citation4 Colo. 176
PartiesBOYLE et al. v. THE PEOPLE.
CourtColorado Supreme Court

Error to District Court of Elbert County.

THE facts are stated in the opinion.

Messrs HAYNES & BARNUM, for plaintiffs in error.

A. J SAMPSON, attorney-general, for defendant in error.

STONE J.

The chief errors assigned are: First. The court refused the application for change of venue. Second. The court refused to grant a continuance; and Third. The court overruled the challenge for cause to certain of the petit jurors at the trial.

The indictment against the defendants in the court below for the larceny of cattle was presented by the grand jury on the 8th day of March. On the 10th a continuance was asked by defendants, and the motion therefor coming on to be heard by 'consent of all parties,' the cause was set down for trial on the 23d of March, and the court thereupon adjourned to that date. On the 14th of March the defendants presented to the judge at chambers an application for change of venue upon the ground of prejudice of the inhabitants of the county of Elbert against said defendants. This application, upon hearing, the judge denied. Upon the meeting of the court on the 23d inst., the motion for change of venue was renewed upon the same petition and affidavits that had been presented to the judge at chambers, and upon motion of the district attorney, the petition and affidavits were stricken from the files. Error is assigned for denial of the petition both at chambers and in court.

We think there was no error in either case. The application to the judge at chambers was not made in apt season. The petition and affidavits were sworn to the day before their presentation on the 14th, and so far as the record shows without notice to the district attorney of the intended application. Such notice, unless expressly waived, is essential. Marble v. Bonhotel, 35 Ill. 249.

Upon the hearing it was expressly admitted by the defendants and their attorneys, that the facts set forth in their petition for a change of venue were as well known to said defendants and their attorneys on the 10th of March when they consented that the case should be set down for trial on the 23d, as at the time of making and presenting said petition.

This is a plain admission of neglect to make the application in seasonable time. The statute contemplates that applications for change of venue, or notice therefor, must be made at the earliest possible moment after the cause for the change becomes known to the party seeking such change. The reasons for this are well known, and the application can be made to the judge at chambers, or to the court in term regardless of the state of the pleadings. Gilson v. Powers, 16 Ill. 355; Moss v. Johnson, 22 id. 639; Bryson v. Crawford, 68 id. 366.

The renewal of the application on the 23d, the day set for trial, was properly denied. This second application was based on no new facts. It was in fact the same petition, supported by the same affidavits which had been a few days previously denied by the judge at chambers, and the former application not having been made in apt time, the latter certainly was not.

The motion for continuance made on the 23d was properly denied. The case had been continued from the 10th to the 23d, and by consent of defendants set for trial on the latter day. The subpoenas were not issued for the witnesses whose absence was made the ground of the last application, until the very day the application was made, and that was the day upon which the defendants had consented to go to trial, and it was evident from the statement set out in the affidavit for the continuance that the defendants must have known all the facts averred in the affidavits as well on the 10th when they consented to go to trial on the 23d, as on the latter day when the motion for continuance was made.

These facts show a clear want of the diligence required to entitle a party to a continuance on such grounds as this motion was based upon.

The challenges to the four jurors, for the overruling of which error is assigned, were for the reason that said jurors were 'members of the Cattle Association.' The examination of several jurors upon the voir dire disclosed the fact that many of the citizens of the county engaged in the business of raising cattle belonged to an association having for its general objects the promotion of the interests of stock growing, and in furtherance of such interests, under the constitution or written compact of the association, it became the duty of any member 'knowing of a person stealing cattle from a member of the association, or from any one else, to report it,' after which it became the duty of the executive committee to prosecute such cases. It also appeared that the executive committee had employed an attorney to assist the district attorney in the prosecution of this case, and had paid the expenses necessary in procuring the attendance of two witnesses from the adjoining State of Kansas. It was further testified that the organization was not a secret one, and that the prosecution of cattle thieves was only done through the legally constituted mode of trial in the courts, and with no attempt to procure the conviction of any except guilty parties.

One juror who stated that he was an officer of the association was set aside by the court. Of the four jurors...

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12 cases
  • Kirby v. Union P. Ry. Co.
    • United States
    • Colorado Supreme Court
    • December 4, 1911
    ... ... 345, 59 N.W. 317, 24 ... L.R.A. 498; Jannin v. State, 42 Tex. Cr. R. 631, 51 S.W ... 1126, 62 S.W. 419, 96 Am.St.Rep. 821; Burdick v. People, 149 ... Ill. 600, 36 N.E. 948, 24 L.R.A. 152, 41 Am.St.Rep. 329; ... Drummond v. Southern P. R. Co., supra; Pennsylvania R. Co. v ... Beekman, ... 491, 36 P ... 445; D. & R. G. R. R. Co. v. Cahill, 8 Colo.App. 158, 45 P ... 285; Forbes v. Commissioners, 23 Colo. 344, 47 P. 388; Boyle ... v. People, 4 Colo. 176, 34 Am.Rep. 76; Roberts v. People, 9 ... Colo. 458, 13 P. 630; Bean v. Gregg, 7 Colo. 499, 4 P. 903; ... Smith v ... ...
  • Robinson v. State
    • United States
    • Wyoming Supreme Court
    • January 10, 1910
    ... ... improper or unfair means, and if a conviction is so obtained ... it is reversible error. ( People v. Lu Chuck, 78 Cal ... 317.) It is the duty of a prosecutor to exercise absolute ... impartiality and to see that defendants are convicted only ... v. Hedger, 2 Kan. 26; Burrell v. State, 25 Neb ... 581; Hicks v. State, 6 Fla. 441; Solander v ... People, 2 Cal. 48; Boyle v. People, 4 Colo ... 176; State v. Lewis, 56 Kan. 374; State v ... Hutchinson, 14 Wash. 580.) The right of defendant to be ... represented ... ...
  • Starke v. State
    • United States
    • Wyoming Supreme Court
    • June 23, 1908
    ...v. State, 52 Ala. 170; Lithgow v. Com., 2 Va. Cas. 297; Republican v. Richards, 1 Yeates, 480; People v. Bodine, 1 Den. 281; Boyle v. People, 4 Colo. 176.) decisions have so far respected the principle that a party interested in any way in the litigation should not sit as a juror, that a ta......
  • Imboden v. People
    • United States
    • Colorado Supreme Court
    • June 3, 1907
    ...of South Carolina, of which corporation the juror in question was a director. State v. Bills, 2 McCord (S. C.) 12. In Boyle v. People, 4 Colo. 176, 34 Am.Rep. 76, it was determined by the trial court that members of a cattle association, one of the purposes of which was to lend aid to the p......
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