O'Brien v. People

Citation17 Colo. 561,31 P. 230
PartiesO'BRIEN v. PEOPLE.
Decision Date06 October 1892
CourtSupreme Court of Colorado

Error to criminal court of Arapahoe county.

Thomas O'Brien was convicted of seduction under promise of marriage, and brings error. Reversed.

(Syllabus by the Court.)

Every criminal trial must take place in open court, in the presence of the judge as well as of the jury. The presence of the judge is essential to the organization of the court. The arguments of counsel, as well as the taking of the evidence are a part of the trial, and the judge cannot properly absent himself while such proceedings are being carried on. It is his duty to be present to superintend the proceedings, uphold the majesty of the law, and thus give protection and security to the parties interested or concerned in the trial, and also to see to it that counsel, in their arguments, do not travel outside the record, or transcend the limits of legitimate discussion.

(Syllabus by Elliott, J.)

H E. Luthe, for plaintiff in error.

Sam W. Jones, Atty. Gen., and H. Riddell for defendant in error.

ELLIOTT J.

Plaintiff in error was defendant below. He was charged with an offense expressly designated by the statute as a felony, and made punishable on conviction by imprisonment in the penitentiary for a term not exceeding 10 years. Sess. Laws 1885, p. 166; Mills' Ann. St. § 1325. Being put in jeopardy for such an offense, it was the right and privilege of defendant to have the trial conducted with all due care and circumspection, and to have the requirements of the law faithfully pursued and firmly upheld in all substantial particulars. Among other things, the following proceedings, duly authenticated by the bill of exceptions, are assigned for error: (1) During the progress of the trial, a certain female witness being sick, the court ordered that her testimony be taken at her residence before the jury. The defendant demanded that the court also attend said jury, but the court refused so to do; and said witness was sworn, and gave material testimony, in the presence of the jury, at her residence in West Denver, the court not being present and not presiding. (2) It affirmatively appears by the bill of exceptions that after the evidence had closed, and during the time while the district attorney addressed the jury and argued the cause on behalf of the people against said defendant, the court was absent from the court room, and out of sight and hearing of said jury and counsel, and out of the hearing of said argument during the entire argument, for at least half an hour, and that the defendant desired to object to and arrest certain statements, and to correct certain misstatements of the law and the evidence made by the district attorney in his said argument; and, further, that the defendant then and there excepted to the absence of the court as aforesaid, and prayed that said absence be made a matter of record, and it was accordingly so done.

The foregoing assignments may be considered together. Under our judicial system, every criminal trial must take place in open court. It must be conducted in the presence of the judge as well as of the jury. The judge must be present to superintend the proceedings, uphold the majesty of the law, and thus give protection and security to all parties interested or concerned in the result of the trial. The arguments of counsel, as well as the taking of the evidence, are a part of the trial, and the judge cannot properly absent himself while such proceedings are being carried on. It is his duty to be present, and see to it that counsel in their arguments do not travel outside the record, nor transcend the limits of legitimate discussion. Moreover, the presence of the judge is essential to the organization of...

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26 cases
  • Leo Frank v. Wheeler Mangum
    • United States
    • United States Supreme Court
    • April 19, 1915
    ...Y. 604; Shaw v. People, 3 Hun, 272, affirmed in 63 N. Y. 36; Hinman v. People, 13 Hun, 266; McClure v. State, 77 Ind. 287; O'Brien v. People, 17 Colo. 561, 31 Pac. 230; Ellerbe v. State, 75 Miss. 522, 41 L.R.A. 569, 22 So. 950) the reviewing court of the state in each instance simply set as......
  • Peri v. State, 81-2107
    • United States
    • Court of Appeal of Florida (US)
    • January 18, 1983
    ...N.W. 682 (1897); Palin v. State, 38 Neb. 862, 57 N.W. 743 (1894); Thompson v. People, 144 Ill. 378, 32 N.E. 968 (1893); O'Brien v. People, 17 Colo. 561, 31 P. 230 (1892). See also Heflin v. United States, 125 F.2d 700 (5th Cir.1942); State v. Smith, supra; Turbeville v. State, 56 Miss. 793 ......
  • Smith v. State, 7 Div. 266.
    • United States
    • Supreme Court of Alabama
    • January 31, 1935
    ......519;. Capital Traction Company v. Hof, 174 U.S. 1, 19. S.Ct. 580, 43 L.Ed. 873; Moore v. State, 29 Ga.App. 274, 115 S.E. 25; Graves v. People, 32 Colo. 127, 75. P. 412, 2 Ann. Cas. 6; Miller v. State of Ohio, 73. Ohio St. 195, 76 N.E. 823; Moore v. State, 46 Ohio. App. 433, 188 N.E. 881; ......
  • State v. Carnagy
    • United States
    • United States State Supreme Court of Iowa
    • October 20, 1898
    ...... sufficient to sustain the charge of rape. See cases above. cited, and also State v. Hargrave, 65 N.C. 466;. People v. Crowley, 102 N.Y. 234 (6 N.E. 384);. Rodgers v. State, 30 Tex. Ct. App. 510 (17 S.W. 1077); Reg. v. Allen, 9 Car. & P. 31. The evidence. in ......
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