Bustamante v. People, 17802
| Citation | 133 Colo. 497,297 P.2d 538 |
| Decision Date | 21 May 1956 |
| Docket Number | No. 17802,17802 |
| Parties | Ed BUSTAMANTE, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error. |
| Court | Supreme Court of Colorado |
Frank H. Hall, Carmel A. Garlutzo, Trinidad, for plaintiff in error.
Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., Norman H. Comstock, Asst. Atty. Gen., for defendant in error.
Plaintiff in error to whom we refer as defendant was county clerk and recorder of Las Animas County, and was indicted upon a charge of converting to his own use public funds received by him in his official capacity. Trial to a jury resulted in his conviction and sentence to the state penitentiary for not less than five nor more than seven years. Motion for a new trial was overruled and defendant is here on a writ of error seeking reversal.
The statute upon which the indictment was based, C.R.S.1953, 40-19-3, reads as follows:
'If any officer appointed or elected * * * as an officer * * * of a * * * county * * * of this state, shall convert to his own use in any way whatever, or shall use, by way of investment in any kind of property or merchandise, or shall make way with or secrete any portion of the public funds or moneys, or any valuable securities by him received * * * shall, upon conviction, be punished by imprisonment not less than five years.'
The charging part of the indictment is that the defendant, being the
'* * * duly elected, qualified and acting County Clerk and Recorder * * * did, between the dates of May 24, 1953, and October 19, 1954, wilfully, unlawfully, corruptly and feloniously use, make way with, secrete and convert to his own use * * * a portion of the public funds or moneys of said Las Animas County, Colorado, then and there being in the possession of' defendant.
The defendant argues eight grounds upon which he claims judgment should be reversed. We deem it necessary to consider only three of the assignments, the second, fifth and eighth, which embrace the following points:
Second: That the jury was not selected according to law.
Fifth: That after the defendant had rested, the court erred in permitting the People to recall defendant for further examination and admitting People's Exhibit 25.
Eighth: That the sentence imposed by the court is unlawful.
We consider them in order.
The Second: Concerning the selection of the jury we consider only one of the jurors involved. On the trial, a prospective juror, Abel Duran, answered his voir dire examination satisfactorily. Then was challenged as follows:
brother? A. His brother married my wife's sister.
'Mr. Adams: Your Honor, at this time I would like to challenge Mr. Duran for cause, on the basis of his relationship to one person who is financially interested in this particular case.
'The Court: (Addressing opposing counsel) I suppose you would resist that?
'Mr. Hall: Yes, I surely would.
'The Court: In the absence of the jury, Mr. District Attorney, I will hear you?
'Mr. Adams: Your Honor, I think if Mr. Maes were called as a witness, it can be proven that he loaned a certain sum of money to the defendant to repay a part of the shortage that is involved.
'The Court: There is something else that occurred to the Court: I am not quite sure, but it seems to me it was indicated that this prospective juror's employer is a bondsman of the defendant in this case, is that right?
'Mr. Adams: Yes, sir, Mr. Hignio Cordova and John Veltri were bondsmen in this case.
'The Court: What do you say, Mr. Hall?
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It will be noted the juror on his voir dire testified he was not related to Mr. Maes; that Mr. Maes' brother had married the juror's wife's sister. The People's challenge for cause was based on this relationship. The juror was not asked on voir dire whether he had borrowed any money from Mr. Maes, nor was he asked if his employer, Mr. Cordova, was a bondsman for defendant. Neither Mr. Maes nor Mr. Hignio Cordova was called as a witness. Whether the case was an ordinary 'mill-run of cases' or not, the...
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...supra,§ 14 at 1217. 82. E.g., State v. Phipps, supra. 83. "Bustamante II", supra. "Bustamante I," Bustamante v. People, is reported at 133 Colo. 497, 297 P.2d 538 (1956). 84. "Bustamante II", supra, at 365, 317 P.2d at 887. The Court recently made a similar observation in regard to indictme......