Brooke v. People
| Decision Date | 04 January 1897 |
| Citation | 23 Colo. 375,48 P. 502 |
| Parties | BROOKE v. PEOPLE. |
| Court | Colorado Supreme Court |
Error to district court, Arapahoe county.
William E. Brooke was convicted of the larceny of live stock, and brings error. Affirmed.
Allen & Webster, for plaintiff in error.
Byron L. Carr, Atty. Gen., Frank P. Secor, Asst. Atty. Gen., and L W. Dolloff, for the People.
The plaintiff in error, as defendant below, was tried and convicted of the larceny of live stock, and sentenced to the state reformatory. To set aside the sentence, he prosecutes his writ of error in this court.
1. The first error assigned is that the court improperly overruled the defendant's challenge for cause to the juror Mason upon the ground that he was summoned on open venire from the bystanders, and had served upon a jury in a court of record within one year then last past; which, under Sess. Laws 1891 p. 250, § 4, operates as a disqualification. This assignment under the facts, is without merit. When the challenge was interposed, the only objection urged before the trial court was that the juror had served upon the regular panel in a court of record within one year then last past, but not until after verdict was the attention of the court called to the fact (if fact it was) that the juror had been drawn for this particular jury on open venire from the bystanders. The court expressly overruled the challenge, upon the ground that the disqualfication did not apply to a juror summoned upon the regular panel. The practice of concealing or omitting to call to the attention of the trial court the disqualifying fact at such time at that, if presented, the error would not have been committed, or an opportunity would have been given for passing upon the real objection, and then seeking for the first time to take advantage of it upon review, cannot be tolerated. Dill v. People, 19 Colo. 469, 36 P. 229.
2. A witness for the prosecution, over the objection of the defendant, was permitted to give testimony as to certain brands upon the cattle alleged to be stolen, which was not followed up by proof that the brands were recorded, as required by our statute. The court, however, admitted this testimony, as expressly stated, to show the identity between the cattle found in the defendant's possession and the cattle as lost by the owner, and not for the purpose of showing ownership. For the purpose of identification, to which this proof was expressly limited, the ruling of the court was correct. Chesnut v. People, 21 Colo. 512, 42 P. 656.
3. It is also assigned for error that the evidence was insufficient to support the verdict in this case, and that, if it tended to establish any crime at all, it was that of receiving stolen property, knowing that it was stolen, with which offense, however, the defendant was not charged. With a view to determine this assignment, we have carefully examined the evidence; and while it is, as is usual in such cases, conflicting, there certainly was some evidence, and legally sufficient, tending to establish each of the material allegations of the information.
4. Another point made is that, over defendant's objection the court heard testimony in rebuttal, which the prosecution should have produced in chief, that the venue of the offense was not sufficiently proved, and that some testimony as to the venue was introduced in behalf of the people after the prosecution had closed its case, and after a motion for a dismissal of the case had been made by counsel for the defendant, upon the ground, inter alia, that the venue had not been established. The venue was sufficiently established. It is not indispensable that it be proved by positive testimony. It may be inferred from proof of other facts. 1 Whart. Cr. Law (10th Ed.) § 928. The order of proof is generally within the discretion of the trial court, and it is likewise within its discretion to permit either party to introduce evidence after closing his case. It is only where such discretion has been abused to the prejudice of the party complaining that a reversal therefor will be granted. There is nothing in this case which shows any abuse of discretion. The testimony of the witness Stansfield, admitted in rebuttal, was...
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State v. Riordan
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...accused as to any grade of the offense included in the indictment, the accused is entitled to the benefit thereof.' From Brooke v. People, 23 Colo. 375, 48 P. 502, we 'The point made by the defendant--viz., that if, by any testimony, whether that introduced in his own behalf or by the prose......
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...to rebut the presumption of guilt. Boykin v. People, 22 Colo. 496, 45 P. 419; Babcock v. People, 13 Colo. 515, 22 P. 817; Brooke v. People, 23 Colo. 375, 48 P. 502.' [26 Colo. 184, 56 P. This distinction was applied in Russell v. People, supra, 125 Colo. 290, 242 P.2d 613 where the instruct......