Giano v. People

• Decision Date: 02 June 1902
• Parties: GIANO v. PEOPLE.
• Court: Colorado Supreme Court

69 P. 504

30 Colo. 20

GIANO v. PEOPLE.

Supreme Court of Colorado

June 2, 1902

Error to San Miguel county court.

John B Giano was convicted of selling intoxicating liquor without a license, and he brings error. Affirmed.

Two informations were filed against defendant in the county court of San Miguel county. One charged him with selling liquor to Frank J. Callender on the 25th of August, 1900, for his own gain; the other, with selling liquor on the same day and to the same person for his own gain and for the gain of Antone Seed, and without a legal license in either case. The causes were consolidated for trial over the objections of defendant. There was a general verdict of guilty, upon which a judgment was entered and a fine imposed. Numerous errors are assigned and those argued are disposed of in the opinion.

R. H. Wilson, for plaintiff in error.

Calvin E. Reed, Asst. Atty. Gen., Chas. C. Post, Atty. Gen., and James D. Merwin, Asst. Atty. Gen., for the People.

CAMPBELL C.J.

The record, or at least the abstract of it, is so unsystematically put together that it has not been easy to apprehend the pertinency or force of some of the objections urged.

1. To the consolidation of the two informations the objection seems to be that, since the sale under the first is alleged to be for the benefit of defendant, and under the second for his gain and that of one Seed, the two offenses are entirely distinct and unconnected, hence may not be properly united for trial under section 1452, Mills' Ann. St. (Gen. St. § 945). From the abstract it does not affirmatively appear that the two informations could not be properly joined. If necessary so to hold, the averment in the second that the sale was in part for the benefit of Seed might be disregarded as surplusage, and in that event, as we understand the argument of defendant's counsel, the objection now made would fail. It is sufficient, however, to say that the record before us supports the ruling attacked.

2. Section 1460, Mills' Ann. St. (Gen. St. § 953), requires a copy of the indictment and a list of the jurors and witnesses to be furnished, previous to the arraignment, to every person charged with felony, and in all other cases a defendant, at his own request or that of his counsel, shall be furnished therewith. Upon the day of the trial, two days after arraignment and plea, defendant made a request that the copy and list be furnished him. The court denied the request and defendant excepted. Our statute is substantially the same as, and evidently was taken from, section 180, p. 185, of the Revised Statutes of Illinois of 1845. In Kelly v. People, 132 Ill. 363, 371, 24 N.E. 56, it was held that, before waiving formal arraignment and pleading to the indictment, the defendant should have demanded the copy and list, and, upon being refused, should have excepted and presented the fact of such demand; not having done so, but making the request for the first time after arraignment, and a plea of not guilty had been entered, and the cause was on the eve of trial, he cannot be heard to complain. We think this a reasonable construction of the statute. It confers a benefit upon a defendant which he may waive, and does so unless he makes the request before arraignment and a plea of not guilty. Other authorities to the same effect are collated in 1 Bish. New Cr. Proc. § 126; 1 Bish. New Cr. Law, § 997(3). See, also, U.S. v. Curtis, 4 Mason, 244, Fed. Cas. No. 14,905; Cook v. State, 26 Ga. 593; Bird v. State, 50 Ga. 585; Johnson v. State, 43 Ark. 391.

3. At 5 o'clock on the afternoon of the day of trial, after defendant's evidence was in, the district attorney asked for a continuance until the following morning to produce rebuttal evidence. Over defendant's objection, the continuance was had. He now insists that such evidence might have been heard by 6 o'clock, and the trial concluded before an adjournment was taken. There was no abuse of discretion in the ruling of the court.

4. So far as we can ascertain, it does not appear that any material error was committed in the admission or rejection of testimony. Indeed, the abstract is so unsatisfactory, and so little of the record which bears upon the objections reproduced, that it has been impossible for us to perceive upon what they rest. Neither can the objections to instructions given by the court be considered. Not all of them are before us, and for this reason alone we cannot pass upon assignments of error as to one or more of the series.

5. We cannot disturb the finding. The evidence was conflicting, and the credibility of the witnesses was a matter entirely for the jury. Complaint is made that there was no evidence to sustain the charge under the second information, and for that reason the verdict should be set aside. A sufficient reply to this is that the abstract of the testimony is so obviously incomplete that the most careful examination of it will not justify an attempt to decide the point. But it is apparent that if the informations were properly consolidated, or if they relate to the same transaction, or are closely connected as a part of the same act, there is no force in the objection now urged. Certainly there was testimony sufficient to sustain the charge set forth in the first information, and the fine imposed was within the limits prescribed for that offense.

6. An attempt was made to show that defendant had previously...