Fitzgerald v. People
| Citation | 1 Colo. 56 |
| Parties | FITZGERALD v. THE PEOPLE. |
| Decision Date | 01 July 1867 |
| Court | Supreme Court of Colorado |
Error to District Court, Arapahoe County.
INDICTMENT for murder upon which the prisoner was found guilty. The counties of Weld and Douglas were attached to the county of Arapahoe for judicial purposes. Previous to the trial in the court below, the prisoner moved for a change of venue, upon a petition setting up that the inhabitants of Arapahoe county were prejudiced against him, but no mention of the counties of Douglas and Weld was made in this petition. The motion was denied, and the prisoner then filed an amended petition, in which he alleged that the inhabitants of all the counties above named were prejudiced against him.
The motion for new trial was supported by the affidavit of Geo Shallcross, of which the material part is given in the opinion of the court.
Messrs PURKINS & COOK, for plaintiff in error.
Mr. V D. MARKHAM, for defendants in error.
EYSTER J. (after stating the facts).
On his first assignment of error the plaintiff avers that there was error in the refusal of the court below to allow him a change of venue on his first petition and affidavit. Upon an examination of his petition, we find, that he sets out only that there is such a prejudice in the minds of the people of Arapahoe County against him, that he cannot there expect a fair and impartial trial. If there had been then no other counties attached to Arapahoe county for judicial purposes, this petition and affidavit would have been sufficient, and it would have been error in the court below to have refused to grant it. But at that time the counties of Weld and Douglas were attached to the county of Arapahoe for judicial purposes and, in pursuance of law, jurors were drawn from those counties as well as from Arapahoe county to make up the panel of jurors, and although his petition complied with the letter of the law, we do not think it complied with its spirit, and we can see no error in the action of the court below in that behalf. The next assignment of error is, we think, equally groundless. After the refusal of the court below to allow a change of venue, on the first petition presented, for the grounds above stated, the plaintiff in error filed a second and amended petition for a change of venue, in which he supplied the omission of his former petition, by adding thereto the counties of Douglas and Weld, and alleged the existence of the prejudice complained of in his first petition. This was only an amendment of his first petition. A change of venue under our statute, when properly applied for, is a matter of right, and is of course. The second application was addressed to the discretion of the court, and, we think, was properly so addressed, and we can see no error in its refusal in this instance to grant the motion.
The third and last error is of a more important character. That the court below erred in denying the motion for a new trial when it was shown that one of the jurors who sat upon the trial was biased and prejudiced against the plaintiff in error, and had formed and expressed an opinion of his guilt before ...
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