Glover v. People

• Decision Date: 02 July 1917
• Docket Number: 4840.
• Citation: 63 Colo. 392,167 P. 960
• Parties: GLOVER v. PEOPLE.
• Court: Colorado Supreme Court

167 P. 960

63 Colo. 392

GLOVER v. PEOPLE.

No. 4840.

Supreme Court of Colorado, En Banc.

July 2, 1917

Rehearing Denied Oct. 8, 1917.

Error to District Court, Teller County; Robert E. Lewis, Judge.

John M Glover was convicted of simple assault and he brings error. Affirmed.

John M Glover, of Denver, pro se.

William H. Dickson, Atty. Gen., George D. Talbot, Asst. Atty. Gen and Leslie E. Hubbard, Atty. Gen., for the People.

PER CURIAM.

Plaintiff in error, defendant below, and so hereinafter designated, was found guilty of simple assault, under an information charging assault with intent to commit murder. He brings the cause here for review.

An inspection of the record discloses that defendant is in a novel position before this court. In the record he has assigned fourteen errors. Only six of these are noticed in his printed brief. Just prior to oral argument he filed a written release of all assignments except four. None of the four thus excepted are argued in his brief. In oral argument he confined himself to a consideration of these four assignments.

It is well settled that if an assignment of error does not appear in the abstract, or if it is not urged in the printed argument, it must be presumed to have been abandoned. This rule was recognized and enforced in Lowell v. Hessey, 46 Colo. 522, 105 P. 870, where the court refused to consider questions not discussed in the briefs. In Falke v. Brule, 17 Colo.App. 499, at page 503, 68 P. 1054, at page 1055, the court said:

'Defendants assigned a number of errors, based upon the admission of incompetent, and the rejection of competent, evidence. Counsel has not seen fit, however, to argue these assignments, not even presenting them in the briefs, and for this reason they will be treated as having been abandoned, and requiring no notice.'

The rule was upheld, also, in the following cases: Townsend v. Fulton Co., 17 Colo. 142, 20 P. 453; Perkins v. Peterson, 2 Colo.App. 243, 29 P. 1135; Zimmerman v. T. T. Co., 18 Colo.App. 480, 72 P. 607; Colo. Fuel & Iron Co. v. Gardner, 21 Colo.App. 273, 121 P. 680; Bloomer v. Jones, 22 Colo.App. 404, 125 P. 541; Muntzing v. Harwood, 25 Colo.App. 292, 137 P. 71.

From these authorities it is clear that defendant, having waived all the assignments of error argued in his brief, should not be permitted in oral argument to introduce others not theretofore urged or relied upon. Literally, defendant, who is...