Critchfield v. People, 12399.

• Citation: 13 P.2d 270,91 Colo. 127
• Decision Date: 02 May 1932
• Docket Number: 12399.
• Parties: CRITCHFIELD v. PEOPLE.
• Court: Supreme Court of Colorado

13 P.2d 270

91 Colo. 127

CRITCHFIELD v. PEOPLE.

No. 12399.

Supreme Court of Colorado, En Banc.

May 2, 1932

Rehearing Denied June 27, 1932.

Error to District Court, Routt County; Charles E. Herrick, Judge.

Fred Critchfield was convicted of cattle stealing, and he brings error.

Affirmed.

Paul P. Prosser, of Denver, for plaintiff in error.

John S Underwood, Atty. Gen., and E. J. Plunkett, Asst. Atty. Gen for the People.

ALTER J.

Fred Critchfield was convicted of a felony and sentenced to the penitentiary. He prosecutes this writ, assigning as error: (1) The insufficiency of the information; (2) the insufficiency of the verdict; (3) the appearance of special counsel; (4) erroneous rulings on evidence.

The information herein, evidently drawn under the provisions of section 6728, C. L. 1921, charged that defendant '* * * on or about the 9th day of October * * * at and within the * * * did then and there unlawfully and feloniously steal embezzle, sell, drive, lead and carry away one red yearling heifer * * * of personal property, goods, and chattels of John Thams and thereby did then and there unlawfully and feloniously deprive the said John Thams the owner there of the immediate possession of the said cattle, contrary to the form. * * *' To the information, defendant entered his plea of not guilty, and thereafter the cause was set for trial Before a jury.

After the jury had been impaneled and sworn, but Before the introduction of any evidence, upon motion of the district attorney, additional counsel was indorsed for the people, to which defendant objected in the following language:

'Mr. Prosser: We object to the entering of that order at this time, your Honor,--I believe there are good grounds for this objection at this time.

'The Court: The objection will be overruled. I cannot see that the defendant is prejudiced in any way by the right for them to enter the case.' To which ruling, the defendant excepted.

Immediately thereafter, counsel for the people, as well as counsel for defendant, made their opening statements, and counsel for defendant, after the first witness was called and sworn, thereupon interposed an objection to the introduction of any evidence because (a) the information is duplicitous in that it attempts to charge both larceny and embezzlement in the same count of the information; (b) the language of the information is repugnant and contradictory; and (c) the information states no offense. After the evidence was completed and the jury instructed, it returned its verdict as follows:

'* * * Do, upon our oaths find the said defendant is guilty as charged in the information, with a recommendation for Parole to the Court.'

1. In order to determine the sufficiency of the information, we must first consider our statutes relative thereto.

Section 7062, C. L. 1921, provides: 'Every indictment or accusation of the grand jury shall be deemed sufficiently technical and correct which states the offense in the terms and language of this code, or so plainly that the nature of the offense may be easily understood by the jury. * * ' Informations are governed by this section. In Sweek v. People, 85 Colo. 479, 485, 277 P. 1, 4, this court said: 'Section 7103, C. L., declares that: '* * * No indictment or information shall be deemed insufficient, nor shall the trial, judgment or other proceedings thereon be reversed of affected by any defect which does not tend to prejudice the substantial rights of the defendant on the merits.' In our decisions, we have given effect to the statutory command.' See Koontz v. People, 82 Colo. 589, 263 P. 19; Albert et al. v. People, 90 Colo. 219, 7 P.2d 822; Arnett v. People (Colo.) 11 P.2d 806. We also note that section 7068, C. L. 1921, provides that 'all exceptions which go merely to the form of an indictment shall be made Before trial. * *' Section 7094, C. L. 1921, provides that, 'when any defendant shall wish to demur, or move to quash an indictment, such defendant shall make such demurrer to motion in writing, and therein specially and particularly set down, state and point out the defects of, or reasons why such indictment should be quashed, and the court shall hear no other reasons than those so specially stated and set forth.'

We understand defendant contends that the information is insufficient because (a) it is duplicitous; (b) inconsistent and repugnant; and (c) states no offense.

If the information is duplicitous, that fact is patent, and the question must be presented either by motion to quash or demurrer, and this in limine, because the rule against duplicity is for the benefit of defendant, and he may waive it. Bishop's New Crim. Proc. vol. 1 (2d Ed.) § 442; Wharton's Crim. Proc., vol. 11 (10th Ed.) § 1324; 31 C. J. p. 793; 14 R.C.L. p. 203; People v. Fontuccio, 73 Colo. 288, 290, 215 P. 145; State v. Henn, 39 Minn. 464, 40 N.W. 564.

Neither a demurrer nor motion to quash can be properly made while a plea to the indictment or information stands. People v. Fontuccio, 73 Colo. 288, 290, 215 P. 145; State v. Owen, 97 Wash. 466, 166 P. 793, 794; People v. Smith, 318 Ill. 114, 122, 149 N.E. 3; People v. Henley, 254 Ill.App. 199, 200.

Therefore no error was committed in overruling the objection to the introduction of evidence interposed after the jury was sworn to try the issues, and the opening statements of counsel had been made and the trial had actually begun. The information was sufficient under section 7062, C. L. 1921; any objection to the information must have been taken advantage of by a motion to quash, a demurrer or a motion to elect, the first two of which must be made Before the trial. Section 7068, C. L. 1921. The motion to quash and the demurrer must be in writing. Section 7094, C. L. 1921. The substantial rights of the defendant could not have been prejudiced by the use of the word 'embezzle' in the information, and so, under the provisions of section 7103, the information should not be held insufficient, and the judgment...