Gray v. District Court of Ninth Judicial Dist.

• Decision Date: 03 February 1908
• Citation: 42 Colo. 298,94 P. 287
• Parties: GRAY v. DISTRICT COURT OF NINTH JUDICIAL DIST. et al.
• Court: Colorado Supreme Court

94 P. 287

42 Colo. 298

GRAY v. DISTRICT COURT OF NINTH JUDICIAL DIST. et al.

Supreme Court of Colorado, En Banc

February 3, 1908

Certiorari by John L. Gray against the district court of the Ninth judicial district and the Honorable John T. Shumate, judge thereof, F. W. Adams, sheriff, and Charles W. Taylor, praying for a writ of prohibition against the appointment of the special prosecutor to act as district attorney in place of petitioner who was alleged to be prejudiced. Writ granted.

J. W. Dollison and John L. Noonan, for petitioner.

W. J Kerr and D. M. Campbell, for respondents.

PER CURIAM.

By the petition and supplemental petition it appears that the petitioner was at the time the acts complained of were committed the duly elected, qualified, and acting district attorney within and for the Ninth judicial district; that on the 19th day of November, 1904, the grand jury returned three certain indictments; that the defendants named in the indictments were arraigned and entered pleas of not guilty that on the 9th day of December the petitioner caused to be entered a plea of nolle prosequi in each of said causes; that thereafter the respondent, the judge of the district court of said judicial district, upon affidavits presented entered an order containing the recital that the court had reason to believe that certain crimes had been committed which should be investigated, and 'that it appearing from the affidavits of the district attorney that he is not impartial in the premises, that he is unwilling to proceed further, and that he declines to further prosecute the said charges, and it appearing from all the affidavits on file herein that a fair and impartial examination of this case cannot be had through the district attorney, therefore it is ordered by the court that Charles W. Taylor, Esq., an attorney of this bar, be and he hereby is appointed a special prosecutor herein with all the power of the district attorney in the premises;' that said special prosecutor prepared and filed, by leave of court, informations against the defendants mentioned, based upon the same facts and charging the same offenses as in the indictments mentioned; and that warrants had been issued thereon. The petitioner prays for a writ of prohibition, and on December 17, 1904, orders requiring the defendants to show cause on or before January 10, 1905, why the writ prayed for should not be granted, and staying proceedings under the informations filed by the special district attorney until the further order of the court, were entered here. On January 4, 1905, the respondent filed a return to the order to show cause, and had certified the entire record, as well as all affidavits filed, together with the opinion of the court in appointing the special district attorney. From which it appears, in addition to the averments of the petition, that, by agreement with the district attorney, special counsel to assist the district attorney entered appearance for the people; that on December 5th the cause against one Coryell was set for trial for December 6th, and that on the 8th of December the two other cases were set for trial for December 9th that about 6 o'clock on the evening of December 8th the district attorney entered a nolle pros. in each of said causes; that counsel for the defense had witnesses for the defense subpoenaed and were ready for trial, and that the district attorney entered a nolle pros. in each of said causes without consultation with counsel who were to assist him. The affidavits of the prosecuting witnesses disclose that murderous assaults had been committed by two of the three persons charged, and that the district attorney was present at the sitting of the grand jury where the testimony concerning these crimes was taken. In the affidavit of the district attorney he disclaims having any interest, direct or remote, in the causes of the defendants, and says that he is not personally acquainted with them, and that, after a careful investigation, he became convinced that the defendants were not guilty of the offenses charged, and that he entered the nolle pros. in each of the cases because he was convinced that to prosecute the said causes would be an act of injustice and a violation of his oath of office, and because he became convinced that no conviction could or ought to be obtained; that as to one of the defendants he has what he regards as conclusive proof of innocence, but that he cannot disclose such proof without disclosing evidence submitted to the grand jury. In the findings and opinion of the court it is stated: 'I do not impute to the district...