Hoffman v. People

• Decision Date: 05 February 1923
• Docket Number: 10401.
• Parties: HOFFMAN et al. v. PEOPLE.
• Court: Colorado Supreme Court

212 P. 848

72 Colo. 552

HOFFMAN et al. v. PEOPLE.

No. 10401.

Supreme Court of Colorado, En Banc.

February 5, 1923

Error to District Court, Prowers County; A. F. Hollenbeck, Judge.

Otis Hoffman and another were convicted of manufacturing for sale and gift intoxicating liquors, and bring error.

Affirmed.

D. B. Kinkaid, of Lamar, for plaintiffs in error.

Victor E. Keyes, Atty. Gen., and Samuel Chutkow, Asst. Atty. Gen (Allyn Cole, of Lamar, of counsel), for the People.

CAMPBELL J.

The defendants were convicted under an information charging them with manufacturing for sale and gift intoxicating liquors. Each of them was sentenced to pay a fine of $300. Of the numerous errors assigned only four are argued, and these only are determined.

1. It is said that the jury which tried the case was, over defendants' objection, unlawfully impaneled. Six days before the time set for trial counsel for defendants, to whom, at his request, the clerk had, as our statute requires furnished the list of the regular jury panel summoned for the term, said to the court that, if, because of its depletion which then was apparent by reason of the failure to serve some jurors, and the order of the court excusing others, it became necessary to issue an open venire to supplement the regular panel, he would object to the service of the same by the sheriff and his deputies on the ground of disqualification, these officers being witnesses for the state and against the defendants. Whereupon the court asked if there were any objections to Mr. Watson, the court bailiff, serving that venire, to which question defendants' counsel said that there would be no objection. In other words, the defendants consented that Watson might serve it. During the time between this colloquy and the trial day several open venires were issued and directed to the sheriff, some of which were served by that officer, and some by Watson. On the trial day, and after the case was called and the jurors, including about six brought in by these open venires, were ordered into the jury box, and before they were sworn, the objection was made by defendants to these open venire jurors on the ground that they were unlawfully summoned by the sheriff and Watson, and not by the coroner, on whom the statute devolves the power when the sheriff is properly disqualified.

It is said in defendants' brief, and it seems to be true, that it was not until the jurors were directed to take their seats in the box that their counsel discovered, from the list which the clerk had previously given him, that about six of them were not on the regular panel, but had been thus summoned by open venire. It was at this juncture, and not before, that a disqualifying affidavit on the ground stated was made by one of the defendants and filed with the clerk. The contention is, in light of the foregoing, that the court grievously erred in overruling defendants' motion to disqualify the sheriff and to substitute the coroner. If the facts were as defendants wrongly assume them to be, the denial might have been error. There is in the record what purports to be an order overruling in its entirety the motion. A supplementary certificate of the clerk, and one by the trial judge incorporated in the record, show that the entry of the order was the result of a mistake by the clerk, he supposing that the court had actually made it. Both supplementary certificates, however, show that the court, in denying the motion, specifically restricted application of the order to the venires previously issued and served, but, as to any further open venires that might be issued, the process would run to the corner, and not to the sheriff. This ruling was upon the ground that jurors already brought in by open venires served by the sheriff, or by a person agreed upon by the parties, were not subject to the disqualifying affidavit, which was not made until after the jurors alleged to have been improperly served were in the box.

For several reasons we think there was no error in this ruling. Section 1299, Rev. Stat. 1908, provides that, when a party makes and files with the clerk an affidavit stating that he believes that the sheriff will not, by reason of partiality, prejudice, consanguinity, or interest, faithfully perform his duties in any suit commenced or about to be commenced, the clerk shall direct all process therein to the coroner, who shall execute the same in like manner as the sheriff might have done. The very words of the statute suggest that the disqualifying affidavit should be made promptly. It may be made even before the suit is commenced. It should be made at the earliest practicable opportunity, certainly before an open venire is issued and served, if, as was the case here, the party then knew of the disqualification. In no event may a sheriff be set aside as disqualified unless and until such an affidavit is made and filed with the clerk. After such an affidavit is filed, and not before, the sheriff is disqualified. The statute is mandatory. Litch v. People, 19 Colo.App. 433, 75 P. 1083; General Film Co. v. McAfee, 58 Colo. 344, 145 P. 707; Kelliher v. People, 71 Colo. 202, 205 P. 274. It is, however, not self-executing. It is not set in motion until the prescribed affidavit is made. The syllabus of the Kelliher Case in the Pacific Reporter supra correctly states the pith of Judge Allen's opinion in this language:

'It was error, in view of the mandatory character of the statute, to permit the sheriff to serve process after accused had filed an affidavit of partiality.'

In Peck v. Farnham, 24 Colo. 141, 49 P. 364, one of the errors assigned was that the court denied the application of the defendants that the special venire issued for jurors be served by the coroner. One of the reasons for holding the order not erroneous was that the affidavit in support of the defendant's application to set aside the sheriff was not made until after the venire was served by him. It is not decisive of this assignment, but it is pertinent further to observe that no complaint is made that any of the jurors summoned upon open venire were objectionable, and the defendants did not exercise all of their peremptory challenges.

Even if the disqualifying application had seasonably been made, it is doubtful if it operated as such. In the motion for a new trial the objection to the sheriff was said to be the fact that he and his deputies were witnesses for the state. It has been decided that this fact does not bring the case within the principle of a disqualifying statute like ours. 24 Cyc. p. 227; People v. Lowhone, 296 Ill. 391, 402, 129 N.E. 781; People v. Ponsford, 181 Mich. 659, 148 N.W. 236; State v. Jeffries, 210 Mo. 302, 323, 109 S.W. 614, 14 Ann.Cas. 524; Jackson v. State, 167 Ala. 44, 55, 52 So. 835.

For another reason this assignment of error is not well taken. When defendants' counsel, in effect, consented to the serving of an open venire by Watson, defendants should not be heard now to say that he was not a proper officer to act in place of the sheriff. True, the coroner is the officer designated by the statute to act in such a contingency. We do not even indirectly insinuate that learned counsel is acting in bad faith in here alleging the incompetency of Watson. His reason for doing so is evidently because he believes that Watson was incompetent. We might concede that he would be, were it not that the trial court was led to believe, and we think rightly dis conclude, that the defendant consented that Watson might serve the process. When the objection of defendants' counsel was made to the jurors brought in by Watson, the trial court did not decide, and had no occasion to decide, the abstract question as to whether or not Watson, as court bailiff, might lawfully serve an open venire. The appears not only from the colloquy between the presiding judge and the defendants' counsel six days before the trial, but also on the day of the trial, when the defendants first specifically objected to the jury. Defendants' counsel then said:

'If Mr. Watson did serve it (the open venire), he is not qualified to serve a special venire, unless he is agreed upon.'

With that implied admission that Watson was competent, if agreed upon, considered in connection with the previous consent to Watson acting in lieu of the sheriff, the trial court was justified in its ruling, since it was rightly led to believe that it was agreeable to the defendants. Even though we are wrong as to this conclusion, the proper practice to raise the question in such cases was not observed. The defendants say that a challenge to the...