Holt v. People
| Decision Date | 01 June 1896 |
| Citation | 45 P. 374,23 Colo. 1 |
| Parties | HOLT et al. v. PEOPLE. |
| Court | Colorado Supreme Court |
Error to district court, Las Animas county.
William Holt and Deonicio Romero were convicted of murder in the first degree, and bring error. Affirmed.
William Holt and Deonicio Romero were tried and convicted in the district court of Las Animas county of murder of the first degree, and sentenced to suffer the death penalty. The prosecution was by information filed by leave of court, and based upon the affidavit of Fred J. Radford, without any preliminary examination having been had or waived. Upon this information, capiases were duly issued, and the defendants arrested. Afterwards, by leave of court, the district attorney filed an amended information, verified by affidavit. Motions were made by defendants to quash the informations and capiases upon various grounds, which were overruled. Before trial, each of the defendants filed a motion for severance and for a separate trial, which were denied. Motions for a new trial and in arrest of judgment were also interposed and denied.
J. P. Keeney, for plaintiff in error Romero.
Joseph S. Jaffa, for plaintiff in error Holt. B. L. Carr, Atty Gen., Calvin E. Reed, Asst. Atty. Gen., and George H. Thorne Asst. Atty. Gen., for the People.
The specifications of error principally relied on for reversal are: First, that the court erred in denying the defendants' motion to quash both the original and amended informations, on the ground that the defendants did not have or waive a preliminary examination; second, that the affidavit upon which the information was based was not made by a person competent to testify as a witness to the alleged homicide, or by one who could testify to the facts therein stated from personal knowledge; third, in overruling defendants' motions for separate trials fourth, in overruling the motion in arrest of judgment.
In support of the first proposition, it is urged that the provision of the information act under which this prosecution was had is in derogation of section 7, art. 2, of our bill of rights, which provides: 'No warrant to search any place or seize any person * * * shall issue without describing the * * * person * * * to be seized, * * * nor without probable cause, supported by oath or affirmation, reduced to writing.' While it is conceded in argument by counsel for plaintiffs in error that the constitutionality of prosecutions by information has been settled by the prior decisions of this court, yet it is urged that the provision under which this prosecution was had is in derogation of said section, in that it permits the filing of an information without a preliminary examination, and that the affidavit therein prescribed does not constitute probable cause. We are not referred to any adjudged case that it is claimed directly upholds this contention, but our attention has been directed to some cases wherein courts have seemed to place stress upon the fact that a preliminary examination had been had in the case then under consideration, and which would seem to indicate a doubt as to whether informations filed without a commitment on such examination should be regarded as due process of law. We have been unable to find any case holding a preliminary examination a necessary prerequisite to the filing of the information, except in those states in which by constitution or statute, the right to file an information is limited to cases where there has been such an examination. On the other hand, in the states wherein no such limitation exists, it is uniformly held that a preliminary examination is not essential, and that the acts which permit the district attorney to file an information upon leave of court do not contravene any constitutional requirement. State v. Anderson 30 La. Ann. 557; State v. Brett (Mont.) 40 P. 873; State v. Sureties of Krohne (Wyo.) 34 P. 3; 1 Bish. Cr. Proc. 239a. As was said in State v. Anderson, supra: 'It has never been supposed that a preliminary examination by a committing magistrate was an indispensable precursor to a prosecution either by indictment or information.' Mr. Bishop says: 'Except by force of some statutory provision not found generally in our states, a preliminary examination is not necessary; being a mere expedient to prevent the suspected person from escaping, or for preserving the evidence, or keeping the witnesses within control.' In State v. Brett, supra, it was urged that the prosecution, being by information filed by leave of court, where there had been no preliminary examination, was illegal, and a violation of the constitutional right of defendant. Hunt, J., speaking for the court, said: The statute of Wyoming provided that informations might be filed after a preliminary examination, or whenever the county and prosecuting attorney was satisfied that a crime had been committed in his county. The constitutionality of this act was challenged in the case of State v. Sureties of Krohne, supra. Chief Justice Groesbeck, after discussing the cases bearing upon the question, said: 'After a careful examination of the case, on the authorities presented, and on many we have found ourselves, we come to the conclusion that the information, under the law as it then was, could be filed by the prosecuting attorney without a previous preliminary examination or judicial inquiry of the accused on a similar accusation, and that the law authorizing such action was not unconstitutional and void.' If, as held in these decisions and others that might be cited, the prosecution by information filed by leave of court, or, as in the latter case, by the county attorney, without leave, is due process of law, and violates no constitutional requirement, a fortiori, it can be said that none are denied when, as under out act, in addition to the leave of court, an affidavit showing probable cause is essential before a prosecution by information can be inaugurated, and when the requirements of section 7, art. 2, of our bill of rights, are as fully complied with by the filing of an affidavit in the district court, showing probable cause as the foundation for issuing the capias, as when filed before an examining magistrate. The evils suggested by counsel for plaintiff in error that might...
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