Chase v. People

• Decision Date: 01 February 1875
• Citation: 2 Colo. 509
• Parties: CHASE v. THE PEOPLE. [*]
• Court: Colorado Supreme Court

2 Colo. 509

CHASE v. THE PEOPLE. ^[*]

Supreme Court of Colorado

February, 1875

Appeal from District Court, Arapahoe County.

THAT the defendant acted as agent for another in the keeping of such room is not a defense.

At the April term, 1873, of the district court, the district attorney obtained leave to file an information, which charged:

'That John Chase, late of the said county of Arapahoe, on the 27th day of October, in the year of our Lord 1872, at the said county of Arapahoe, in the Territory aforesaid, a certain room, building and tenement there situate, unlawfully and injuriously then and there did keep to be used and occupied for gambling, and the said John Chase did then and there unlawfully and knowingly permit the said room, building and tenement so kept by him as aforesaid to be used and occupied for gambling, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the said people of the Territory of Colorado.'

A capias was issued and the defendant, being brought in pleaded not guilty. It was objected in this court that there was no affidavit of probable cause in support of the capias and the information, but no such objection was made in the district court. At the same term and on the 13th of May, the defendant moved the court for a continuance of the cause, and read an affidavit in support of his motion. A portion of the affidavit, relating to the testimony of the absent witness was as follows:

'And affiant further says, that he expects to prove by said Albert Biddle that on the day mentioned in said information this affiant did not keep or occupy the room, building, tenement or other place in said information alleged and charged against this affiant to be used or occupied for gambling, and that this affiant did not on said day knowingly permit said room or any other place to be used or occupied for gambling, as in said information charged against him.'

Upon this the court allowed the motion and entered an order continuing the cause to a special term to be held in July following. On the same day two witnesses for the prosecution being required to give security for their appearance at said special term, declared that they were unable to do so, and it appearing to the court that the witnesses were about to go out of the territory, and the defendant being then in court, the order continuing the cause was vacated and the cause was set down for trial on the same day. This order was, however, subject to the condition that the defendant should decline to take the depositions of the witnesses to be used at the July term, and the defendant refusing to take such depositions, the cause was brought on for trial. Several witnesses on behalf of the government testified that gaming was carried on at and prior to the 27th of October, in a room kept by the defendant, and that he declared himself the proprietor thereof. The defendant objected to the evidence of gaming prior to the day laid in the information, but the evidence was received. A witness for the people, Edward Chase, brother to the accused, testified that he was proprietor of the room, and that his brother was in charge of it, and it was admitted by the counsel for the people that this witness was the owner of the premises.

Upon the point of proprietorship the court charged as follows:

'It is not necessary to a conviction, that the defendant should be shown to be the owner of the room, or the building wherein the room was situated, nor that he should be the proprietor of the establishment, if any, maintained there. If the defendant kept and managed and controlled the room, and had direction thereof, as the agent of another, this proof suffices, so far as this point of the case is concerned.'

The court also charged, that it was not necessary to show that gaming was done in the room, but it was sufficient if the defendant kept the house with the intent, and for the purpose that gaming should be done there.

The prisoner was found guilty, and the court gave judgment that he be confined in the county jail for thirty (30) days, and pay a fine of $500 and costs, and thereupon he sued out this writ of error.

Mr. H. R. HUNT, for plaintiff in error.

Mr. M. A. ROGERS, district attorney, contra.

BELFORD J.

In the view which we take of these cases, it is immaterial to inquire whether the warrant for the arrest of the defendant was issued on a proper showing or not. He submitted himself to the jurisdiction of the court, without interposing any objection, and having done so, he cannot now be heard to say that the warrant was void or irregular. The...