Boyle v. People

• Citation: 4 Colo. 176
• Case Date: April 01, 1878
• Court: Supreme Court of Colorado

4 Colo. 176

BOYLE et al.
v.
THE PEOPLE.

Supreme Court of Colorado

April, 1878

[4 Colo. 177]

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. [4 Colo. 178]

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...