Christ v. People

• Decision Date: 01 April 1877
• Citation: 3 Colo. 394
• Parties: CHRIST v. THE PEOPLE.
• Court: Colorado Supreme Court

3 Colo. 394

CHRIST v. THE PEOPLE.

Supreme Court of Colorado

April, 1877

Error to District Court of El Paso County.

GEORGE H. CHRIST was indicted at the February term, 1877, of the El Paso district court, for the larceny of certain cattle of the property of Bell & Thornton; was tried at the same term and convicted. A motion for a new trial was overruled, and judgment was entered on the verdict. The errors assigned are discussed in the opinion, which renders further statement unnecessary.

Messrs BROWNE & PUTNAM, for plaintiff in error.

A. J SAMPSON, Attorney-General, for the defendants in error.

ELBERT J.

We will consider the assignment of errors in the order in which they are presented.

1. Waiving any consideration of the question that the petition for a change of venue and the affidavits in support of it are not properly before us, not having been preserved in the bill of exceptions they were clearly insufficient under the statute. The defendant in his petition failed to set forth the fact or facts upon which his fears that he would not receive a fair trial were founded. This is necessary under the statute. The naked statement, that the inhabitants of the county wherein the trial was had were prejudiced against him, was not sufficient. He should have set forth the grounds upon which his belief of prejudice was based. The three affidavits in support of the petition were insufficient under the law for the same reason.

2. The fact that the defendant was not present in court, except by attorney, upon the argument and overruling of the motion for a change of venue is not ground for reversal. Mr. Bishop states the rule to be, that where a mere matter of law is to be agitated before the court, there is no reason why it should not be done by counsel in the absence of the prisoner. Bishop's Crim. Pro., s 277. To this rule we can see no valid objection, either in reason or practice. The objection taken in the twelfth assignment, that the prisoner was not present in court in person when the motion for a new trial was determined, comes within the same rule, and cannot be sustained.

3. We can see no object in allowing the hides sworn to by the witnesses Charles and Sarah Smith to be inspected by the jury. The brand on them was not in dispute. The question whether the hides were those of the cattle stolen was the real point in controversy.

Upon this question the inspection could have thrown no light, and the defendant would have gained nothing thereby.

4. The evidence respecting the brand of Bell & Thornton, the alleged owners of the stolen cattle, was admitted without objection or exception by the defense, and cannot be considered here. If objection had been made at the trial, the prosecution...