Farnum v. U.S.

Citation1 Colo. 309
Case DateFebruary 01, 1871
CourtSupreme Court of Colorado

1 Colo. 309

FARNUM
v.
UNITED STATES.

Supreme Court of Colorado

February, 1871


[1 Colo. 310]

Error to District Court, First Judicial District.

THE indictment was entitled, 'The district court of the United States of America, within and for the first judicial district of Colorado territory, of the term of June, in the year of our Lord one thousand eight hundred and seventy. At a regular term of the district court of the United States of America, within and for the first judicial district of Colorado territory, begun and held at Denver City, on the fourteenth day of June,' etc., etc.

The defendant below moved to quash the indictment, upon the ground that it was entitled of a court not known to the law. He also objected, that there was no offense charged. The district attorney filed a cross-motion to amend the caption of the indictment by striking out the words 'of the United States of America,' so as to make the same read 'the district court within and for the first judicial district.'

Defendant's motion was overruled, and the cross-motion allowed. The evidence and the indictment are sufficiently set forth in the opinion. The jury found the defendant guilty.

Messrs. BROWN, HARRISON & PUTNAM, for plaintiff in error.

Mr. L. C. ROCKWELL, U.S. District Attorney, for defendant in error.

BELFORD, J.

The defendant was indicted at the July term, 1869, of the Arapahoe district court, for secreting and embezzling one package of letters and two sacks of gold dust, with which he had been intrusted, as mail carrier, and which were intended to be conveyed by post. There are seven counts in the indictment, all charging the same offense, but in the first, sixth and seventh counts, the defendant is charged as a carrier of the mail on the route from Fairplay to Helena, and as being then and there a person employed in a department of the post-office establishment [1 Colo. 311] of the United States. The defendant moved to quash the indictment for error in the caption, whereupon the attorney-general filed a cross motion and asked leave to amend the caption, which leave was granted, and the motion to quash overruled. The defendant then entered a plea of not guilty, and was put upon his trial. The jury found him guilty on the first, third, sixth and seventh counts, and not guilty on the second, fourth and fifth counts. Motions for new trial and in arrest of judgment were overruled.

The first error assigned is the overruling of the motion to quash and permitting the attorney-general to amend the caption of the indictment. It is claimed by the plaintiff in error, that the caption is a part of the indictment, and cannot be amended. In this view we are unable to concur. Bishop in his work on Criminal Procedure, vol. 1, sec. 151, says: 'In matter of legal principle, this extended commencement or caption is no part of the indictment, as sworn to by the grand jury; it is a mere formal statement, which, though placed at the head of the indictment, is still of no higher nature than is an entry on the docket, made in court by the clerk-a thing, which, if erroneous, is subject like a docket entry to be corrected by an order of the judge, or, when it becomes transferred into the permanent records, to be amended to the same extent as any other part of those records. And it is believed, that though the decided cases may not be very distinct to this effect, and though some of them may even seem to come short, this doctrine is, on the whole, sustained by adjudged law.'

In Archibald's Criminal Practice, vol. 1, page 260, it is said: 'But, though the caption, like the indictment itself, may, if defective, be either quashed by the court or demurred to on the part of the defendant, it differs materially from it in its capacity of amendment, for the return to the court is merely a ministerial act and ministerial acts may be amended at any time according to the common law.'

In the case of the United States v. Thompson, 6 McLean, 57, the same objection urged to this indictment, namely, 'that the court is not properly entitled,' was passed upon, [1 Colo. 312] and Judge WILKINS says: 'We consider that this objection has been long settled, both in England and in this country.' The caption forms no part of the indictment or presentment of the grand jury, and he adds: 'It is only matter of astonishment, that such a technical exception should now be gravely urged in court.' Moody v. The State, 7 Blackf. 424; The State v. Gilbert, 13 Vt. 647.

Before proceeding to examine the action of the court in overruling the motion for new trial, and in arrest of judgment, it may be proper to allude to some objections made to the form of the indictment. It is claimed by the plaintiff in error, that the indictment is bad, because it fails to describe the letters which it is alleged the defendant secreted and embezzled. In the case of the United States v. Lancaster, 2 McLean, 433, the court say: 'Is it essential that the letter charged to have been embezzled should be described...

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3 practice notes
  • Robinson v. State, 609
    • United States
    • United States State Supreme Court of Wyoming
    • January 10, 1910
    ...Prejudice to the defendant is to be presumed from error in the instructions given. (People v. Marshall, 112 Cal. 422; Farnham v. U.S. 1 Colo. 309; State v. Gannon, 75 Conn. 206; Lane v. State, 32 So. 896; Wood v. State, 31 Fla. 221; State v. Johnson, 69 Ia. 623; Barnett v. Comm., 84 Ky. 449......
  • Brown v. Hudspeth, No. 1823.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • May 8, 1939
    ...Gordon v. United States, 8 Cir., 18 F. 2d 531, 532; United States v. Thompson, 28 Fed. Cas. page 98, No. 16490; Farnum v. United States, 1 Colo. 309, Stansbury v. State, 128 Tex.Cr.R. 570, 82 S.W.2d 962, 964; Joyce on Indictments, 2d Ed., §§ 171, 173, 180, 184. 2 George v. People, 167 Ill. ......
  • Deitsch v. Wiggins
    • United States
    • Colorado Supreme Court of Colorado
    • February 1, 1871
    ...such a rule, the first inquiry should be the amount of injury actually sustained, which, together with interest, is a good general [1 Colo. 309.] measure of damages in the absence of circumstances of aggravation. But to limit the investigation to the pecuniary loss of a plaintiff would freq......
3 cases
  • Robinson v. State, 609
    • United States
    • United States State Supreme Court of Wyoming
    • January 10, 1910
    ...Prejudice to the defendant is to be presumed from error in the instructions given. (People v. Marshall, 112 Cal. 422; Farnham v. U.S. 1 Colo. 309; State v. Gannon, 75 Conn. 206; Lane v. State, 32 So. 896; Wood v. State, 31 Fla. 221; State v. Johnson, 69 Ia. 623; Barnett v. Comm., 84 Ky. 449......
  • Brown v. Hudspeth, No. 1823.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • May 8, 1939
    ...Gordon v. United States, 8 Cir., 18 F. 2d 531, 532; United States v. Thompson, 28 Fed. Cas. page 98, No. 16490; Farnum v. United States, 1 Colo. 309, Stansbury v. State, 128 Tex.Cr.R. 570, 82 S.W.2d 962, 964; Joyce on Indictments, 2d Ed., §§ 171, 173, 180, 184. 2 George v. People, 167 Ill. ......
  • Deitsch v. Wiggins
    • United States
    • Colorado Supreme Court of Colorado
    • February 1, 1871
    ...such a rule, the first inquiry should be the amount of injury actually sustained, which, together with interest, is a good general [1 Colo. 309.] measure of damages in the absence of circumstances of aggravation. But to limit the investigation to the pecuniary loss of a plaintiff would freq......

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