Daugherty v. People
| Decision Date | 06 July 1925 |
| Docket Number | 11248. |
| Parties | DAUGHERTY v. PEOPLE. |
| Court | Colorado Supreme Court |
Rehearing Denied Sept. 8, 1925.
Department 3.
Error to Moffat County Court; John M. Childress, Judge.
Supersedeas denied, and judgment affirmed.
A verdict supported by evidence will not be disturbed on appeal.
Wiley & Wakeman, of Craig, for plaintiff in error.
Wm. L Boatright, Atty. Gen., and Jean S. Breitenstein, Asst. Atty Gen., for the People.
Plaintiff in error, defendant below and so designated here, was convicted of keeping a room to be used and occupied for gambling, and permitting the same to be so used. He prosecutes this writ of error, and applies for a supersedeas.
The contentions of defendant are that the court below erred in the following particulars: In denying defendant's application for a change of venue, in denying his motion for a continuance, in permitting the jury to be summoned in part by a disqualified sheriff, in permitting the jury to be summoned in part by a disqualified coroner, in overruling defendant's motion for a directed verdict, and in overruling his motion for a new trial.
1. The case was set for trial February 4, 1925. The application for change of venue was based on the alleged prejudice of the inhabitants of the county, and made on the day of the trial. No counter affidavits were filed. Defendant argues that because no counter affidavits were filed it was mandatory upon the court to grant the change; that the court had no discretion in the matter. In this we think the defendant is mistaken. We think it was within the discretion of the court to grant or refuse the motion. Andrews v. People, 33 Colo 193, 204, 79 P. 1031, 108 Am.St.Rep. 76; Patton v. People, 74 Colo. 322, 221 P. 1086.
In Andrews v. People, supra, the record discloses that no counter affidavits were filed, and only one affidavit filed on behalf of defendant; yet this court held that it was within the discretion of the court to grant or refuse the application. Furthermore, we do not think the question was presented in the motion for a new trial, notwithstanding the claim of defendant that it was covered by paragraph 15 in the motion. That is too general, and, if the contention of defendant is correct, all errors complained of might be thus broadly presented. To this we cannot agree. Unless specifically presented in the motion, it cannot be considered by us. Rule 8 of this court.
2. The question of granting a continuance is also within the discretion of the trial court. Griffin v. People, 76 Colo. 422, 231 P. 1113.
The motion for continuance was made on the day of trial. The application was based upon the illness of Mr. Wiley, one of defendant's counsel. Mr. Wiley was teken ill about January 1st, and it does not appear that during that month there was any prospect that he would be able to participate in the trial of the case. The efficient manner in which the defense was conducted gives no indication that any prejudice or injury resulted to defendant by reason of the denial of the continuance. In addition to the authority cited above, we refer to the following: Byers v. McPhee, 4 Colo. 204, 206; Roberts v. People, 9 Colo. 458, 465, 13 P. 630; Epley v. People, 51 Colo. 501, 503, 119 P. 153; Reynolds v. Campling, 23 Colo. 105, 46 P. 639; Hartford F. I. Co. v. Hammond, 41 Colo. 323, 325, 92 P. 686.
3. The affidavit filed disqualifying the sheriff was also presented on the day of the trial, and after the sheriff had summoned 17 of the 22 jurors required. We think this phase of the case is squarely covered in Hoffman v. People, 72 Colo. 555, 212 P. 848. The court properly disqualified the sheriff when the affidavit was presented, and also properly held for service the 17 jurors already summoned by that officer. The disqualification of the sheriff was not mentioned in the motion for new trial.
4. Defendant also on the same day filed his affidavit disqualifying the coroner. It is urged by the Attorney General that the statute does not provide for the disqualification of the coroner. While this is true, nevertheless we think the coroner may be disqualified in the same manner as the sheriff. It is quite essential in the administration of justice that jurors should be summoned by persons who are absolutely fair and impartial and not in any wise prejudiced against a party to the proceedings. The defendant says there were no counter affidavits filed by the district attorney. The filing of counter affidavits is not required. When affidavits are filed showing disqualification of either sheriff or coroner, it is the duty of the court to act without counter affidavits and declare the officer...
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