Hopkins v. People, 12863.

Docket Nº12863.
Citation1 P.2d 937, 89 Colo. 296
Case DateJune 29, 1931
CourtSupreme Court of Colorado

1 P.2d 937

89 Colo. 296

HOPKINS
v.
PEOPLE.

No. 12863.

Supreme Court of Colorado, En Banc.

June 29, 1931


Error to District Court, Adams County; George F. Dunklee, Judge.

W. M. Hopkins was convicted for embezzlement, and he brings error.

Affirmed. [1 P.2d 938]

[89 Colo. 297] George H. Lerg, of Denver, for plaintiff in error.

Clarence L. Ireland, Atty. Gen., and Edward J. Plunkett, Asst. Atty. Gen., for the People.

[89 Colo. 298] ALTER, J.

W. M. Hopkins, plaintiff in error, hereinafter referred to as defendant, was convicted of embezzlement, and prosecutes this writ, assigning as error: (1) Denial of motion for change of venue, (2) denial of motion for mistrial, (3) admission of improper evidence, (4) remarks and comments of trial judge during the course of the trial and in the presence of the jury, (5) refusal to give tendered instructions, and also the giving of an instruction, and (6) denial of motion for directed verdict.

The information charges that defendant was the regularly appointed, duly qualified, and acting administrator of the estate of Miers Fisher, deceased, and, as such administrator, had in his possession the sum of $29,000, which said sum, on June 27, 1930, he feloniously embezzled and fraudulently converted. Defendant pleaded not guilty.

1. The trial began on February 26, 1931. On February 7, 1931, defendant's motion for a change of venue based on the prejudice of the inhabitants of the county was heard and denied. Defendant supported his motion with the affidavits of ten persons presumably residents of Adams county. These affidavits state that in affiant's opinion defendant cannot secure a fair and impartial trial in Adams county because the inhabitants thereof are prejudiced against him by reason of an alleged connection with a bank failure in which many of the inhabitants were depositors and stockholders; which bank failure and defendant's connection therewith were given undue publicity through the newspapers. In addition to the above, these affiants also state that defendant's alleged defalcations in the estate matter have been the subject of widespread and unfavorable gossip. Counter affidavits were filed by eight residents of Adams county, who state that the defendant can secure a fair [89 Colo. 299] and impartial trial in Adams county, and that no considerable prejudice against him exists. The district judge who heard and denied this motion was a resident of this judicial district, and well qualified to pass upon the question presented. The law vests him with a discretion in these matters which he is presumed to have exercised wisely. This presumption is supported by the record for it discloses that twenty-seven jurors were examined; that the people exercised three pre-emptory challenges while the defendant exercised ten, and yet neither party challenged a juror for cause. This remarkable circumstance, in itself, would clearly indicate that defendant's fears of prejudice were unfounded.

Defendant relies upon our decision in Jabich v. People, 58 Colo. 175, 178, 143 P. 1092, in support of his contention that error was committed in denying his motion. The opinion in the Jabich Case, supra, contains a statement of facts which themselves clearly distinguish that case from the one now under consideration, and the law as announced in the Jabich Case certainly has no application to the facts here. The latest expression of this court on motions for a change of venue is found in Abshier v. People, 87 Colo. 507, 520, 289 P. 1081, 1087, [1 P.2d 939] where it is said: 'The granting or refusal of a motion for change of place of trial is one of the many matters wisely lodged in the discretion of the trial court, and, in the absence of abuse, the order will not be disturbed. [Citing cases.] No abuse of discretion appears here.' See, also, Giacomozzi v. People, 72 Colo. 13, 15, 209 P. 798; Patton v. People, 74 Colo. 322, 325, 221 P. 1086; Wilder v. People, 86 Colo. 35, 42, 278 P. 594.

Under the authority of all of our decisions, there was no error committed in denying the motion for a change of venue.

2. Defendant's counsel had exercised his tenth and last challenge when juror Tiedeman was called into the jury box, and was examined by counsel, who, after an exhaustive and searching examination, found no ground [89 Colo. 300] upon which to challenge for cause, and accepted the juror. On the second day of the trial, in the absence of the jury, defendant's counsel stated to the trial judge that he had just learned of an alleged statement of the juror Tiedeman, which, if true, disqualified him as a juror, and he wished to present this statement as a basis of a motion for a mistrial. Counsel then stated that juror Tiedeman, in the presence of four witnesses, Before being called as a juror, but while in attendance upon court, had stated 'That defendant, W. M. Hopkins, ought to have been sick a long time ago and should have been in the penitentiary a long time ago.' Defendant's counsel say that 'he was not only biased and prejudiced against the defendant, but had already made up his mind upon the question of the guilt of defendant.' In the voir dire examination of the juror Tiedeman, it developed that he had been a depositor in the bank in which defendant had once held a responsible position; that he...

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12 practice notes
  • Sergent v. People, No. 23542
    • United States
    • Colorado Supreme Court of Colorado
    • February 28, 1972
    ...thereof. See Oaks v. People, 161 Colo. 561, 424 P.2d 115 (1967); Martz v. People, 114 Colo. 278, 162 P.2d 408 (1945); Hopkins v. People, 89 Colo. 296, 1 P.2d 937 (1931); Abshier v. People, 87 Colo. 507, 289 P. 1081 (1930). No such showing has been made in this It is also noteworthy that def......
  • People v. Beeman, No. 75--351
    • United States
    • Colorado Court of Appeals of Colorado
    • March 11, 1976
    ...cause, apply where, as here, the grounds for disqualification are first discovered after commencement of the trial. Cf. Hopkins v. People,89 Colo. 296, 1 P.2d 937; and See United States v. Rowell, 512 F.2d 766 (8th The determination of juror bias is a question of fact, See Leick v. People, ......
  • People v. Collie, No. 82CA0338
    • United States
    • Colorado Court of Appeals of Colorado
    • November 17, 1983
    ...to return property does not negate the theft element of intent. Kelley v. People, 166 Colo. 322, 443 P.2d 734 (1968); Hopkins v. People, 89 Colo. 296, 1 P.2d 937 (1931). Indeed, even an actual return of property is not a negation, since the issue of intent involves not whether there was a p......
  • Small v. People, No. 23345
    • United States
    • Colorado Supreme Court of Colorado
    • December 21, 1970
    ...as was the case in Sheppard and Walker. The law as announced in Martz v. People, 114 Colo. 278, 162 P.2d 408 (1954); Hopkins v. People, 89 Colo. 296, 1 P.2d 937 (1931); and Abshier v. People, 87 Colo. 507, 289 P. 1081 (1950) is still the law in this state where the publicity is not so exten......
  • Request a trial to view additional results
12 cases
  • Sergent v. People, No. 23542
    • United States
    • Colorado Supreme Court of Colorado
    • February 28, 1972
    ...thereof. See Oaks v. People, 161 Colo. 561, 424 P.2d 115 (1967); Martz v. People, 114 Colo. 278, 162 P.2d 408 (1945); Hopkins v. People, 89 Colo. 296, 1 P.2d 937 (1931); Abshier v. People, 87 Colo. 507, 289 P. 1081 (1930). No such showing has been made in this It is also noteworthy that def......
  • People v. Beeman, No. 75--351
    • United States
    • Colorado Court of Appeals of Colorado
    • March 11, 1976
    ...cause, apply where, as here, the grounds for disqualification are first discovered after commencement of the trial. Cf. Hopkins v. People,89 Colo. 296, 1 P.2d 937; and See United States v. Rowell, 512 F.2d 766 (8th The determination of juror bias is a question of fact, See Leick v. People, ......
  • People v. Collie, No. 82CA0338
    • United States
    • Colorado Court of Appeals of Colorado
    • November 17, 1983
    ...to return property does not negate the theft element of intent. Kelley v. People, 166 Colo. 322, 443 P.2d 734 (1968); Hopkins v. People, 89 Colo. 296, 1 P.2d 937 (1931). Indeed, even an actual return of property is not a negation, since the issue of intent involves not whether there was a p......
  • Small v. People, No. 23345
    • United States
    • Colorado Supreme Court of Colorado
    • December 21, 1970
    ...as was the case in Sheppard and Walker. The law as announced in Martz v. People, 114 Colo. 278, 162 P.2d 408 (1954); Hopkins v. People, 89 Colo. 296, 1 P.2d 937 (1931); and Abshier v. People, 87 Colo. 507, 289 P. 1081 (1950) is still the law in this state where the publicity is not so exten......
  • Request a trial to view additional results

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