Heller v. People

• Decision Date: 16 December 1895
• Citation: 43 P. 124,22 Colo. 11
• Parties: HELLER v. PEOPLE.
• Court: Colorado Supreme Court

43 P. 124

22 Colo. 11

HELLER v. PEOPLE.

Supreme Court of Colorado

December 16, 1895

Error to court of appeals.

David Heller was convicted of embezzlement. The judgment of the district court was affirmed by the court of appeals (31 P 773, 2 Colo.App. 459), and defendant brings error. Reversed.

Plaintiff in error was indicted at the January, A. D. 1890, term of the district court of Arapahoe county for the crime of embezzlement. The indictment contains four counts. In the first count--this being the one upon which the defendant was convicted and sentenced--he is charged with being the financial agent of one Caroline Spindler for the purpose among other things, of borrowing and loaning money; and that while such financial agent, and by the virtue of his agency and the confidential relation existing between him and Caroline Spindler, he received from her and took into his charge and possession a certain promissory note of the value of $1,200; and did then and there, contrary to the confidence and trust in him reposed by his said principal, as aforesaid withdraw himself from his principal, and go away with said note, and did then and there unlawfully and feloniously convert the same to his own use, with the felonious intent to steal the same, etc. It is unnecessary to set forth the remaining counts in the indictment. Upon this indictment a trial was first had at the September, A. D. 1890, term of the district court of Arapahoe county. As a result of this trial the jury disagreed. The defendant was again put upon trial at the January, A. D. 1891, term of the court. This second trial resulted in a general verdict of guilty upon the three counts of the indictment. The defendant, however, was sentenced only upon the first count. To reverse the judgment of the district court the case was brought into the court of appeals upon writ of error, where, however, the judgment of the district court was affirmed. See Heller v. People, 2 Colo.App. 459, 31 P. 773. To reverse the judgment of the court of appeals a writ of error was sued out from this court. After an examination of the record, this writ of error was made a supersedeas.

At the trial the defendant offered himself as a witness in his own behalf. On his cross-examination counsel for the state propounded this question to him: 'Now, Mr. Heller, were you not convicted last month before Judge Decker? The Defendant's Attorney: The jury disagreed. Counsel for the State: He was standing in hock here three or four days.' This language of the prosecuting attorney was objected to the objection sustained, and the remarks withdrawn from the consideration of the jury. At another time, while this witness was being examined, counsel for the state said to him: 'I desire now to caution this man Heller to answer the questions, and not interject stuff that is not testimony.' Again, on the cross-examination of defendant the prosecuting attorney addressed him as Mr. Spindler. The defendant answered, 'Heller is my name,' to which the prosecuting attorney responded, 'I beg your pardon for calling you by the name of a gentleman.' At another time this question was propounded to him: 'After you paid the note, you had Mr. Tesch bring attachment proceedings against the Windsor Exchange for the purpose of freezing Mr. Spindler out, didn't you?' And when an objection to this question was sustained the private counsel employed to assist in the prosecution made this statement in the presence of the jury: 'We propose to show borrowed on this $556, $300 from Mr. Tesch, and before the matter had ever been assigned back. We propose to prove by this man that he used Tesch's name without Tesch's consent, and that, taking advantage of the situation of affairs, we propose to prove by this witness that he then had an attachment levied upon the Windsor Exchange, so as to make this Anheuser-Busch Brewing Association mortgage fall due, thereby destroying the $1,700, while he was agent for Spindler, that Spindler had upon that; and we propose to go further, and follow it up by other testimony for the purpose of explaining that item there.'

Isadore Heller, a son of the defendant, was offered as a witness, and gave important evidence for the defendant. When another witness was upon the stand it was attempted to be shown by this witness that the defendant's son had failed in business in Leadville. Objected to by the defendant. 'Q. You were there when he failed, wasn't you? (Objected to, as immaterial and incompetent. Objection overruled, and the defendant excepted.) Q. Now, do you know of his failure? (We object, for the reason last stated, regardling all of this evidence regarding Isadore Heller. Objection overruled, and the defendant excepted.) A. I don't know anything about Mr. Heller's failure. I was not there at the time he failed.'

Misconduct on the part of the bailiffs in charge of the jury, and misconduct of some of the jurors as well, was called to the attention of the trial court by affidavits filed in support of a motion for a new trial. The misconduct alleged in these affidavits consisted in the following acts: First. Allowing the jury to separate, in violation of the instructions of the court, and permitting jurors to enter a saloon, and drink at a public bar. Second. The introduction of bottles of whisky into the jury room for the use of the jurors. Third. Talking with jurors for the purpose of influencing their verdict against the defendant. Fourth. Taking a juror into a side room, and there engaging in a personal quarrel with him, using violent and abusive language to the juror, so that other members of the jury were obliged to interfere to prevent a breach of the peace. Fifth. Calling attention to a supposed natural infirmity of one of defendant's counsel, and saying to the jury that he had no case.

One of the affidavits filed in support of a motion for a new trial is as follows: 'State of Colorado, County of Arapahoe--ss.: Thompson Dougan, being first duly sworn, on oath says: That he was a member of the jury in the above-entitled cause at the present term of this court. That after the jury was sworn and impaneled to try the issues in said cause, and on several occasions, bottles of whisky were brought into the jury room, and drank by the jury; and on one occasion every juror partook of said whisky. That on one occasion a juror remarked to the colored bailiff in charge of said jury, 'How would it do to send down a pitcher or a jug for whisky?' to which the said bailiff replied 'That is your own business. I am supposed to be dead. I am in the background.' That said jury was fed at Mrs. Given's restaurant, near the St. James Hotel, on Curtis street, during their entire service, and frequently, when so at meals, the jurors would separate and go into the bar opening out of the dining room, and drink alcoholic drinks. That on one occasion, when sitting at the table and waiting for dinner, Mr. Stone, the bailiff in charge of the jury, remarked: 'Gentlemen, don't Taylor make you sick? Just wait until he gets started. He will whine and cry around,...