Erbaugh v. People
| Decision Date | 06 April 1914 |
| Citation | 57 Colo. 48,140 P. 188 |
| Parties | ERBAUGH v. PEOPLE. |
| Court | Colorado Supreme Court |
Error to District Court, City and County of Denver; Greeley W Whitford, Judge.
C. O Erbaugh was convicted, and brings error. Reversed and remanded.
Chas. R. Bosworth, Thos. E. McIntyre, William E Foley, and Charles O. Erbaugh, all of Denver, for plaintiff in error.
John T. Barnett, Atty. Gen., James G. Rogers, Asst. Atty. Gen., Benjamin Griffith, Atty. Gen., Philip W. Mothersill, Asst. Atty. Gen., Fred Farrar, Atty. Gen., and Frank C. West, Asst. Atty. Gen., for the People.
November 29, 1909, defendant was placed on trial for forgery, under an information filed June 4, 1939, convicted and sentenced to the penitentiary. He brings the case here on error.
The first count charges him with making, and the second count with uttering, the following check: Indorsed: 'C. O. Erbaugh, 1275 Josephine.' A third count, charging him with making and passing a fictitious check, was withdrawn from the jury. The statute provides, in substance: Every person who shall forge any check for the payment of money with intent to damage or defraud any person, or who shall utter, as true and genuine, any forged check, knowing the same to be forged, with intent to prejudice, damage, or defraud any person, or shall pass, with intent to defraud any person, any fictitious check purporting to be the check of any individual for the payment of money when in fact there is no such individual, knowing the check to be fictitious, shall be deemed guilty of the crime of forgery. Sections 1704, 1711 R. S. 1908.
2. Defendant filed a petition, verified by his affidavit, asking for a change of venue upon the ground that he feared and believed he could not obtain and impartial trial before the presiding judge, on account of prejudice against him entertained by such judge, because, he says, in May, 1905, the judge, then acting in the capacity of deputy district attorney, prosecuted him upon the charge of embezzlement, in which, while addressing the jury in that case, he expressed his belief in defendant's guilt, and said that he (defendant) deserved to receive the severest punishment, and that the same belief as still entertained by him as presiding judge, for which reason he fears he cannot have a fair and impartial trial before him. Three separate affidavits were filed in support of the petition, in which each affiant states, among other things, that 'he has read the petition for change of venue, in support of which this affidavit is made, and knows the contents thereof, and that he believes the matter and things therein stated to be true, and that the said defendant could not have a fair and impartial trial before said court.'
The petition also asked for a change of venue from the county on account, of the prejudice of the inhabitants thereof, but this will not be further considered because that was a question of fact, triable to the court, and resting clearly within its discretion, will not be disturbed unless abused. Power v. People, 17 Colo. 178, 28 P. 1121; Michael v. Mills, 22 Colo. 439, 45 P. 429; Doll v. Stewart, 30 Colo. 320, 70 P. 326; Andrews v. People, 33 Colo. 193, 79 P. 1031, 108 Am.St.Rep. 76; Kerr v. Burns, 42 Colo. 285, 93 P. 1120.
3. The chapter allowing and regulating changes of venue in criminal cases provides: R. S. 1908, § 6963. The statute further provides, in substance, in case the judge shall be incompetent to sit for any of the causes mentioned, he may change the venue to some other court of competent jurisdiction in the same county, or in some other county, or he may set the case down for trial and request the judge of some other court of competent jurisdiction to try it. The application must be made at the earliest possible moment after the cause for the change becomes known to the defendant. Under the statute he is entitled to but one change.
4. Two questions arise in considering a petition and affidavits for a change of venue in a criminal case based upon the ground of the prejudice of the presiding judge: Questions of law and questions of fact. The first go to the sufficiency of the complaint against the judge and affidavits in support thereof in form and substance. Young v. People, 54 Colo. 293, 130 P 1011. The second is a question of whether the judge is in fact prejudiced against the defendant. The first, under the prior decisions of this...
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... ... Hopkins, 2 N. J. Law, 195; State v ... Bohan, 19 Kan. 28; C., B. & Q. R. R. Co. v ... Kellogg, 54 Neb. 138, 74 N.W. 403; Erbaugh v ... People, 57 Colo. 48, 140 P. 188; State v. Boyd, ... 26 N.D. 224, 144 N.W. 232; 33 C.J. 1001. And in the case of ... Hirsch Co. v ... ...
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...teaches that, usually, he who is prejudiced against another is unconscious of it, or unwilling to admit it.” See, also, Erbaugh v. People, 57 Colo. 48, 140 P. 188; State v. Grinstead, 10 Kan. App. 78, 61 P. State v. Kent, 4 N. D. 577, 62 N.W. 631, 27 L. R. A. 686; Carrow v. People, 113 Ill.......
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People v. District Court In and For Third Judicial Dist.
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