O'Grady v. People

• Citation: 42 Colo. 312,95 P. 346
• Parties: O'GRADY v. PEOPLE.
• Decision Date: 02 March 1908
• Court: Colorado Supreme Court

95 P. 346

42 Colo. 312

O'GRADY v. PEOPLE.

Supreme Court of Colorado

March 2, 1908

Rehearing Denied April 6, 1908.

Error to Weld County Court; Charles E. Southard, Judge.

Jack O'Grady was convicted of keeping open his saloon and selling intoxicating liquors on Sunday, and he brings error. Affirmed.

H. E. Churchill, for plaintiff in error.

William H. Dickson, Atty. Gen., and S. H. Thompson, Jr., Asst. Atty Gen., for the People.

CAMPBELL J.

In an information containing two counts, the defendant was charged with keeping open his saloon and selling intoxicating liquors on Sunday, contrary to the statute. He was found guilty upon both counts, and the court sentenced him to pay a fine under the first, and to be imprisoned in the county jail under the second. The evidence introduced by the prosecution consisted in the main, of the testimony of two witnesses who were private detectives employed to procure evidence to convict defendant. The defendant asked for an instruction, which the court refused, by which the jury were told that if defendant kept open his saloon and sold intoxicating liquors at any time prior to midnight of the day immediately preceding the Sunday in question, that they should find him not guilty. The refusal to give this instruction was not error. The court, in the fifth instruction given to the jury, expressly confined the charge upon which defendant was being tried, and restricted the evidence to the time between the hours of 12 o'clock midnight of Saturday and 6 o'clock in the morning of the following Monday, and told the jury that unless the alleged offense was committed during that time there could be no conviction. Then, too, the instruction as tendered, was misleading, and would tend to confuse the jury since, in effect, it tells them, even though defendant kept open his saloon and sold liquors between the hours of midnight on Saturday and 6 o'clock of the following lowing Monday morning, he should be acquitted if at any time prior to midnight of Saturday he also kept open his saloon and sold liquors.

The other objection argued is that the court refused defendant's tendered instruction, by which the jury were told that they should consider the testimony of the detectives with 'great caution and distrust.' Authority for this instruction is said to be a statement in section 440, Wharton's Criminal Evidence (8th Ed.). The learned author says that 'an informer, it has been held, is not technically an accomplice'; but, the author says, 'the jury should be instructed to receive his evidence with the greatest caution and distrust'--citing Commonwealth v. Downing, 4 Gray (Mass.) 29; Dunn v. People, 29 N.Y. 523, 86 Am.Dec. 319; Williams v. State, 55 Ga. 391. In Commonwealth v. Downing no such decision was made, but the court said that while that jury might well have been instructed that the testimony of a detective should be received with the greatest caution and distrust, it also said that such a witness was not an accomplice, and the court held that the refusal of the presiding judge so to instruct was not ground of legal exception. In Dunn v. People the witness in question was not an accomplice in the strict sense of the term. The court remarked that it was not generally discreet for a jury to convict upon the testimony of an accomplice, but that it is not the law that a conviction upon such testimony can in no case be had. We find nothing in Williams v. State that tends to support the statement of the text. This court held in Wisdom v. People, 11 Colo. 170, 17 P. 519, that there may be a conviction upon the testimony of an accomplice alone, although the court said that it was proper to admonish the jury that such testimony should be received with great caution.

We do not find any authority which sustains the position of defendant that the refusal of a trial court to instruct the jury that the testimony of private detectives, who are employed to procure evidence, should be received 'with great caution and distrust,' necessarily constitutes prejudicial error. The instruction which it is...