Fries v. People

Citation252 P. 341,80 Colo. 430
Decision Date10 January 1927
Docket Number11748.
CourtSupreme Court of Colorado

In Banc.

Error to District Court, Jefferson County; Samuel W. Johnson Judge.

Joseph Fries was convicted of possessing a still, and he brings error and applies for a supersedeas.

Supersedeas denied, and judgment affirmed.

Philip Hornbein and Theodore Epstein,

William L. Boatright, Atty. Gen., and Otto Friedrichs, Asst. Atty Gen., for the People.


Fries was convicted of possessing a still, brings error, and moves for a supersedeas. We think the judgment was right.

It is claimed that the evidence against him was solely that of an accomplice, but that is not correct. In addition to the testimony of the accomplice, there was undisputed evidence of defendant's presence, parking his car, night after night at or near the still, with no purpose disclosed other than to use it.

Misconduct of the district attorney is charged. Keirstein, the accomplice, on whose testimony the case chiefly depended, had testified under cross-examination that there was no agreement or understanding concerning his immunity, and the counsel for the defense had stated, in the presence of the jury, in argument upon an objection to evidence, 'I never heard of a case in which the state's witness or accomplice was tried.' Thereafter, in his closing argument, the district attorney said, 'I say that Keirstein is not going out of this courtroom without some punishment.' Defendant's counsel objected, '* * * He is stating a fact of what he is going to do.' The district attorney: 'I am stating it because counsel has told the jury that Keirstein will not be prosecuted for this offense.' Mr. Hornbein: 'I have not. You have no right to make a personal statement. * * * I have a right to argue the inference from the situation, and you have the same right, but you cannot put your personal word in there. * * *'

Counsel for the defendant takes the position that he merely argued from the evidence and common knowledge that Keirstein would receive immunity, while the district attorney informed the jury what would be done with him; but the defendant's advocate went a step farther than he claims he did, he asserted a fact--i. e., his own experience--to bolster up his claim that the witness would receive immunity. When the prisoner's counsel states facts on a certain point he cannot complain that the counsel for the prosecution does likewise on the same point.

In addition to the above, if guilt is plain, misconduct of the district attorney will be overlooked (Miller v. People, 70 Colo. 316, 201 P. 41), and, under the evidence before us, all of which we have read, no twelve men outside a jury box could doubt defendant's guilt.

The defense offered no evidence and it is claimed that the insistence by the district attorney on the fact that the evidence was undisputed was therefore comment on the fact that defendant did not himself testify. There are cases that so hold, but we do not agree with them. The fact that a man accused of wrong does not deny or explain it is regarded, universally and rightly, in and out of court, as evidence of guilt. This is plain common sense. To forbid a juror to follow this reasoning is to...

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9 cases
  • Koontz v. People
    • United States
    • Supreme Court of Colorado
    • December 5, 1927
    ...... is clearly proven, he cannot successfully rely for a. reversal on technical errors occurring during the. trial.'. . . . See,. also, Gizewski v. People, 78 Colo. 123, 239 P. 1026; Henry v. People, 72 Colo. 5, 209 P. 511; Fries v. People, 80 Colo. 430, 252 P. 341; Wechter v. People, 53 Colo. 89, 124 P. 183;. Hillen v. People, 59 Colo. 280, 149 P. 250. . . In the. present case, substantial justice has been done. Whether our. decision is based upon the failure of defendant to comply. with our rule 7, or ......
  • Kurtz v. People, 23904
    • United States
    • Supreme Court of Colorado
    • February 22, 1972
    ...Colo, 492 P.2d 847, Supreme Court No. 23791, announced January 10, 1972; Kelly v. People, 121 Colo. 243, 215 P.2d 336; Fries v. People, 80 Colo. 430, 252 P. 341; Goodfellow v. People, 75 Colo. 243, 224 P. On December 4, 1968, while defendants' appeal was pending in this court, defendants fi......
  • Kelly v. People, 16227
    • United States
    • Supreme Court of Colorado
    • February 6, 1950
    ...19 Colo. 417, 36 P. 218; Manzoli v. People, 69 Colo. 131, 169 P. 144; Goodfellow v. People, 75 Colo. 243, 224 P. 1051; Fries v. People, 80 Colo. 430, 252 P. 341; Grandbouche v. People, 104 Colo. 175, 89 P.2d 577; Harris v. People, 113 Colo. 511, 160 P.2d 372; Gallegos v. People, 116 Colo. 1......
  • Montoya v. People, 23116
    • United States
    • Supreme Court of Colorado
    • July 28, 1969
    ...It cuts down on the privilege by making its assertion costly. * * *' This problem has been considered by this court in Fries v. People, 80 Colo. 430, 252 P. 341; Cahill v. People, 111 Colo. 173, 138 P.2d 936; Edwards v. People, 151 Colo. 262, 377 P.2d 399; and most recently in Martinez v. P......
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