Herren v. People, 19649
| Decision Date | 14 August 1961 |
| Docket Number | No. 19649,19649 |
| Citation | 363 P.2d 1044,147 Colo. 442 |
| Parties | Loyd HERREN, Plaintiff in Error, v. PEOPLE of the State of Colorado, Defendant in Error. |
| Court | Colorado Supreme Court |
Charles A. Karowsky and William L. West, Greeley, for plaintiff in error.
Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., J. F. Brauer, Asst. Atty. Gen., for defendant in error.
We will refer to the parties as they appeared in the trial court where the plaintiff in error was defendant in a criminal action originally brought in the Justice of the Peace Court for speeding. He was convicted in the Justice Court and appealed to the County Court. Upon trial in the County Court, in a document entitled 'Findings of Fact', the court found the defendant guilty of speeding and imposed a fine of $45, reciting therein that if a motion for new trial was filed it would be denied.
Defendant filed with the Clerk of the County Court a designation of the record on error. When he sought the reporter's transcript to be included in the record, the judge of the County Court filed in that court an affidavit, in paragraph 3 of which it is stated:
The so-called verbatim notes of what was observed consist of a very sketchy summary of the proceedings. There was no contention that the 'observer' attempted to take down the questions and answers and other proceedings verbatim.
Counsel for the defendant filed an affidavit in answer to the statement by the court that no reporter was requested, saying that 'At the time trial commenced, Affiant observed an employee of the Court sitting in the Courtroom, taking notes in a shorthand notebook, and Affiant assumed that said employee was a Court Reporter * * *.' It is the position of the defendant that if it is incumbent upon him to request a shorthand reporter to be present during the trial, his failure to ask for a reporter was based upon the assumption that the person sitting where a reporter usually is to be seen, was in fact a reporter.
Because there is no record in this court upon which review may be had, the only question posed by this writ of error is whether the failure of the defendant to demand a reporter calls for application of the presumption that the trial proceedings were regular and correct and the judgment must therefore be affirmed. The Attorney General contends that this court can do no more than affirm the conviction and in support of his position cites Pettit v. People, 24 Colo. 517, 52 P. 676; LaPlant v. Axelson, 72 Colo. 95, 207 P. 637; Brennan Construction Co. v. Colorado Springs Co., 133 Colo. 301, 295 P.2d 686. In those cases the holding was that there being no record from which the validity of the proceedings in the trial court could be determined, this court could not assume that error had been committed, hence the judgments were affirmed. However, the facts in those cases differ in that there was no failure to have a reporter present in the trial court. The dereliction of duty which was there charged to the plaintiffs in error was the failure to prepare and include in the record before this court a reporter's transcript, which with diligence could have been obtained.
In Clerkin v. Geisendorfer, 137 Colo. 139, 323 P.2d 633, 634, where the County Court was sitting as a Juvenile Court in a contested adoption, we announced that because of the interest of the state in the welfare of the minors, and to insure that justice will be administered in every case, 'that in all contested adoption cases the trial court shall provide a court reporter to the end that a reporter's...
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People v. Rodriguez
...Co. v. People, 39 Colo. 374, 376, 89 P. 778, 779 (1907) (district court is a superior court, a court of record); Herren v. People, 147 Colo. 442, 444, 363 P.2d 1044, 1046 (1961) (county court is a court of record); see also § 37-1-12, 2 C.R.S. (1953) (identifying courts of record). In contr......
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State v. Wright
...267, 392 P.2d 695 (1964); Pacific Finance Corp. of Calif. v. LaMonte, 64 Idaho 438, 133 P.2d 921 (1943). See also Herren v. People, 147 Colo. 442, 363 P.2d 1044 (1961). We take judicial notice that in several jurisdictions local practice permits courts to avoid the mandate of I.C. § 1-1103.......
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State v. Decker
...P.2d 1041. By necessary implication a reporter would have to be present or no such order would be effective. * * * Herren v. People, 147 Colo. 442, 363 P.2d 1044 (1961). If this case involved an offense for which imprisonment for more than six months were authorized, we would be faced with ......
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State v. Collman
...that judicial records are not only necessary but indispensable to the administration of justice * * *.' (Herren v. People, 147 Colo. 442, 363 P.2d 1044, 1046 (1961).)' Ebersole v. State, 91 Idaho 630, 634, 428 P.2d 947, 951 (1967).In relation to the latter the legislature has provided anoth......