Gizewski v. People, 11337.

Citation78 Colo. 123, 239 P. 1026
Case DateOctober 05, 1925
CourtSupreme Court of Colorado

Department 3.

Error to District Court, City and County of Denver; Henry Bray Judge.

Leonora Gizewski was convicted of keeping and having in her possession intoxicating liquor, and she brings error and prays for supersedeas.

Supersedeas denied, and judgment affirmed.

T. J. Morrissey and F. E. Dickerson, both of Denver, for plaintiff in error.

Wm. L Boatright, Atty. Gen., and Jean S. Breitenstein, Asst. Atty Gen., for the People.

SHEAFOR J.

The defendant was convicted upon the first count of an information charging her with a second offense of unlawfully and feloniously keeping and having in her possession a quantity of intoxicating liquor, and sentenced to the penitentiary for a term of not less than one year or more than two years. She brings the case here for review, and asks that a supersedeas be granted.

The defendant complains that the court abused its discretion in allowing witness Redzisz to testify for the people, on rebuttal, after an order had been made excluding all witnesses from the courtroom, and the witness having notwithstanding the order, remained in court during the entire taking of the testimony.

The record does not clearly disclose that the witness was one of the witnesses sworn; but, assuming that he was, and that he was in the courtroom at the time the order of exclusion was made, and further assuming that he was present during the taking of the testimony, and that he had heard, previous to the giving of his own testimony, the evidence given by other witnesses upon the trial, we do not think there was error in the court's ruling. When Redzisz was called to the stand, the defendant's attorney made this objection:

'We object to Mr. Redzisz taking the witness stand, as the court ruled at the commencement of this trial that the witnesses should be excluded from the courtroom. We object to a man who has listened to all the testimony going on and taking the stand.'

The court ruled that it was not applicable to rebuttal, and overruled the objection. No further mention was made of the matter until the filing of the motion for new trial. As one of the grounds for new trial, the defendant set forth:

'That the court erred in permitting one Andrew Redzisz to testify after the court had ruled that all witnesses should be excluded from the courtroom.'

From the foregoing it would be difficult to discover anything except the intimation in counsel's objection that the witness had been sworn in the case; that he was present when the order of exclusion was made; that he was in the courtroom during the taking of testimony; that he knew what any of the other witnesses had testified to; or that he had violated the order of exclusion. There is nothing to indicate that the defendant was in any wise prejudiced, and error must affirmatively appear. There is nothing to indicate that, even if the witness had remained in the courtroom, there was any connivance between the witness and the district attorney. We do not think that the court was required of its own motion, in the circumstances, to interrogate the witness, but that it was the duty of the defendant to show to the court that the witness had connived with the district attorney to violate the court's order. We do not find it necessary to say what the rule should be, had it been shown that there was connivance between the district attorney and the witness which resulted in a violation of the court's order. In the present situation it is only necessary to say that the people were entitled to the testimony of this witness, and there was no error in permitting him to testify.

The defendant contends that the court erred in admitting in evidence a tag attached to three bottles alleged to have contained moonshine whisky, which were offered in evidence as Exhibits A,...

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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 People, 72 Colo. 5, 209 P. 511; Fries v. People, 80 Colo. 430, 252 P. 341; Wechter v. People, 53 Colo. 89, 124 P. 18......
  • Jordan v. People, 20159
    • United States
    • Supreme Court of Colorado
    • December 3, 1962
    ...examination in chief, notwithstanding an order excluding all witnesses had been entered at the commencement of the trial. Gizewski v. People, 78 Colo. 123, 239 P. 1026. Much of the testimony in the case related to the arrest of Jordan almost twenty-four hours after the alleged commission of......
  • Cliff v. People
    • United States
    • Supreme Court of Colorado
    • July 2, 1928
    ...... the substantial [84 Colo. 259] rights of the defendant on the. merits are not encouraged. C. L. § 7103; Balfe v. People, 66. Colo. 94, 179 P. 137; Henry v. People, 72 Colo. 5, 209 P. 511; May v. People, 77 Colo. 432, 435, 236 P. 1022; Gizewski. v. People, 78 Colo. 123, 239 P. 1026; Fries v. People, 80. Colo. 430, 252 P. 341; Koontz v. People, 82 Colo. 489, 263 P. 19. . . 3. Error is said to have occurred in the admission and rejection. of evidence. . . (a). Certain bank books and memoranda were admitted in ......
  • Silcott v. People, 24472
    • United States
    • Supreme Court of Colorado
    • December 6, 1971
    ...upon a collateral matter. King v. People, Supra; O'Chiato v. People, 73 Colo. 192, 214 P. 404 (1923); and Gizewski v. People, 78 Colo. 123, 239 P. 1026 (1925). It appears that upon the close of the People's case, the defendant moved for a directed verdict on the grounds that the People fail......
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