Hopkins v. People

Decision Date29 June 1931
Docket Number12863.
Citation1 P.2d 937,89 Colo. 296
PartiesHOPKINS v. PEOPLE.
CourtColorado Supreme Court

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

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

Affirmed.

George H. Lerg, of Denver, for plaintiff in error.

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

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 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, 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 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 had lost money by reason of the bank failure, but the prospective juror stated that he fully realized that defendant was not on trial for his part, if any, in the bank failure, and that he could and would, if chosen, give the defendant a fair and impartial trial upon the charge upon which he was to be tried.

Counsel cite Fitzgerald v. People, 1 Colo. 56, 58, et seq., as authority for his contention that the motion for a mistrial should have been granted, but the most casual reading of the Fitzgerald Case, supra, clearly distinguishes it from the case under consideration. No doubt as to prejudice could exist when one considers the language used by the juror in the Fitzgerald Case, supra, and no one can question the fact that the juror in that case had a preconceived definite opinion, while that does not appear as a fact here. It is also noteworthy that the Fitzgerald Case, supra, has never been cited in this jurisdiction upon the point under discussion here. If the ground for the motion for a mistrial was good, it was equally available to defendant as a ground for a new trial. There was no error in denying the motion for a mistrial, because the showing made in support thereof was insufficient. Counsel, however, is to be commended for the prompt manner in which he brought this matter to the court's attention. For recent cases in point, see Baker v. People, 72 Colo. 68, 77, 209 P. 791; McGonigal v. People, 74 Colo. 270, 272, 220 P. 1003; Fleagle v. People, 87 Colo. 532, 537, 289 P. 1078.

3. Complaint is made to the admission and refusal to admit certain evidence. One Lindsay, a certified public accountant, was called by the people to testify to certain facts learned by him in the examination of the record in the Miers Fisher estate in the county court. The county court record was long and very much involved, and the evidence of Lindsay assisted the jury materially in determining certain facts which the district attorney considered important and which the trial court held to be proper evidence. It affirmatively appears from this record that Lindsay was employed by the county or county court, and that he had no business or professional connection with defendant. The testimony of Lindsay was objected to by defendant because of the provisions of section 1, par. 6, page 644, chapter 185, Session Laws of Colorado 1929, which provides that a certified public accountant shall not, under certain circumstances without the consent of his client, be examined as a witness. The employment of Lindsay was not by defendant, and, in the absence of proof that defendant was Lindsay's client, the statute has no application whatever to the facts in this case.

Complaint is also made as to some remarks of the district attorney, and this is argued as error. The record shows that the district attorney as well as counsel for defe...

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12 cases
  • Sergent v. People
    • United States
    • Supreme Court of Colorado
    • 28 février 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 denial of a fair trial. See Be......
  • People v. Beeman, 75--351
    • United States
    • Court of Appeals of Colorado
    • 11 mars 1976
    ...for 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. Peop......
  • Small v. People, 23345
    • United States
    • Supreme Court of Colorado
    • 21 décembre 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......
  • People v. Collie, 82CA0338
    • United States
    • Court of Appeals of Colorado
    • 17 novembre 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......
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2 books & journal articles
  • Attorney-client Privilege-the Colorado Law
    • United States
    • Colorado Bar Association Colorado Lawyer No. 12-5, May 1983
    • Invalid date
    ...Hanlon v. Woodhouse, supra, note 10 (doctor took a blood-alcohol sample at request of police. Held: no privilege). 18. Hopkins v. People, 89 Colo. 296, 1 P.2d 937 (1931) (CPA was called by the state as a witness after examining records in the court files); People v. Zimbelman, 194 Colo. 384......
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    • United States
    • Colorado Bar Association Colorado Lawyer No. 24-2, February 1995
    • Invalid date
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