Imboden v. People

• Citation: 40 Colo. 142,90 P. 608
• Parties: IMBODEN et al. v. PEOPLE.
• Decision Date: 03 June 1907
• Court: Colorado Supreme Court

90 P. 608

40 Colo. 142

IMBODEN et al. v. PEOPLE.

Supreme Court of Colorado, En Banc

June 3, 1907

Error to District Court. City and County of Denver; P. L. Palmer Judge.

Leonard Imboden and James A. Hill were convicted of conspiracy to embezzle funds and property of the Denver Savings Bank, and they bring error. Affirmed.

H. J. Hersey and L. S. Smith, for plaintiffs in error.

Geo Stidger, Dist. Atty., John H. Chiles, H. S. Silverstein, N.C Miller, Atty. Gen., and Wm. H. Dickson, Atty. Gen., for defendants in error.

BAILEY J.

An indictment was returned against plaintiffs in error, together with seven others, by a grand jury sitting in and for the city and county of Denver; the indictment containing six counts, upon the first two of which the defendants were found not guilty. Upon the last four they were found guilty. The third and fourth counts charge the defendants with conspiracy to embezzle the property of the Denver Savings Bank. The fifth and Sixth counts charge them with a conspiracy to obtain money and property of the Denver Savings Bank by means of false pretenses.

Plaintiffs in error assign several reasons as to why this conviction and judgment should be declared to be erroneous and set aside. These we will determine in the order in which they are presented in the briefs. It is first contended that the verdict is not supported by the evidence. Because of the flagrant violations of rule 14, we are unable to determine this question. Rule 14 provides: 'Plaintiffs in error in all cases shall * * * file with the clerk * * * a printed abstract of the record in which they shall set forth * * * fully the points relied upon for the reversal of the judgment or decree.' 80 P. viii. We give the following excerpts from the printed abstracts for the purpose of showing how utterly impossible it is to determine what the testimony was: 'Q. Was there any discussion as to whether or not Mr. Imboden should go with you or stay with you? (Defendants object to the question as leading. The court allowed the witness to answer the question. The defendants except.)' The answer to the question was omitted. The next question appearing in the abstract is: 'What did he reply to this?' This was also objected to as leading, the objection was overruled, and defendants excepted; but the answer is again omitted. The next question is: 'What occurred then, Mr. Wilfley, with reference to the election of officers?' This question was objected to, objection overruled, and the answer omitted. Exhibits U-27 to U-33 were then offered in evidence. They were objected to, the objection was overruled, and the exhibits admitted, but they do not appear in the abstract. Exhibits W-1 to W-19 were offered. They were objected to, the objection overruled, and they were introduced in the testimony, but are omitted from the abstract. Exhibits Y-1 to Y-16 and Y-17 to Y-49 were offered, objected to, objection overruled, and the exhibits admitted in evidence, but are absent from the abstract. It is apparent from the abstract that there must have been more than 200 exhibits, consisting of letters, checks, drafts, telegrams, corporation records, and other similar matters that were exhibited and read to the jury; but the abstract of the record is absolutely silent as to what they contain. A witness was asked the following question: 'Do you know of anybody receiving the money from the proceeds of these notes?' Objection was made and overruled, but the answer is omitted. It appears to have been the rule adopted by the compiler of the abstract to omit therefrom the answers to the questions propounded to witnesses, and which were objected to by the attorneys for defendants. In one of the briefs filed on behalf of plaintiffs in error it is asserted: 'The testimony of Wilfley is that he agreed to extend credit and furnish money only in legitimate business transactions (folio 2596), and that he did not become a party to any agreement to misappropriate or squander the funds of the bank, and that no such suggestion was made to him (folios 3431-3434).' Neither of the folios mentioned are contained in the abstract. So that, without referring to and examining the bill of exceptions, it is impossible for us to determine what tesimony was presented to the jury, and it is consequently impossible for us to determine whether or not it was sufficient to warrant the verdict rendered. Under the repeated rulings of this court, the errors assigned, which are not sufficiently presented by the record as abstracted, will not be passed upon. Venner v. Denver Union Water Co., 32 Colo. 205, 7 P. 412; Zipperian v. People, 33 Colo. 134, 79 P. 1018; Means v. Gotthelf, 31 Colo. 168, 71 P. 1117.

The next contention of plaintiffs in error is that the grand jury which returned the indictment against them was improperly selected by the sheriff upon an open venire, instead of having been drawn from the box, as provided by the statute. The Session Laws of 1891 make provision for the selection by the board of county commissioners of competent persons to serve as jurors. The clerk of the district court shall write the names of those so chosen by the board of county commissioners on ballots and place them in a box, and, at least 30 days prior to the term of court, with the assistance of the sheriff, and in the presence of the sheriff, the clerk shall draw by chance from the box in which the names have been placed a sufficient number of grand and petit jurors for the next term of court. Grand jurors shall not be drawn, summoned, or required to attend the sitting of any court in the state unless specially ordered by the court having jurisdiction to make such order. In drawing the list of jurors for the first panel of court, the first 12 names drawn from the box shall constitute the list of jurors for the grand jury, in case a grand jury is required. If the board of county commissioners fails to return a list of competent persons, or if jurors shall not be drawn and summoned as in the act provided, and a jury be required in either the district or county court, the court may nevertheless have power to cause a jury to be summoned by open venire as heretofore practiced. Sess. Laws 1891, pp. 248-253, inclusive. The clerk and the sheriff, pursuant to this statute, upon the 16th day of August, 1905, drew from the box 150 names of persons to serve as petit jurors at the September term of court. Upon the 19th of September the district court made an order, wherein it was recited that: 'No grand jury has been heretofore especially ordered by the court, and that no grand jury has been summoned for service at this term of court, and, it appearing to the court that one should be called, therefore it is ordered by the court that an open venire as heretofore practiced issue herein to the sheriff of the city and county of Denver for twelve men to serve as such grand jurors.'

The contention of plaintiffs in error is that, inasmuch as the statute provides for the manner of selecting a grand jury the manner therein prescribed is exclusive, and that a grand jury may not be obtained in any other way. There are many authorities which warrant the plaintiffs in error in making this contention, among which are: Gladden v. State, 13 Fla. 623; State v. Brooks, 9 Ala. 9; Keitler v. State, 4 Greene (Iowa) 291; Brown v. State, 9 Neb. 157, 2 N.W. 378; Stokes v. State, 24 Miss. 621. Upon the other hand, however, there is very respectable authority for the rule that the statute is simply directory, and is not exclusive of the common-law method of securing juries. At common law grand jurors were selected as well as summoned and returned by the sheriff. In 20 Cyc. at page 1305, it is announced that, instead of permitting a grand jury to be thus selected and constituted as well as summoned at the discretion of the sheriff from the citizens of the county generally, provision is made by statute in many jurisdictions for the procuring of names and the preparation of jury lists from a specified source, as, for instance, from poll books or tax rolls, and for drawing from the box or wheel or otherwise selecting the persons obtained to be summoned and to be served as grand jurors by the judge or other officer or board of officers designated by law for this purpose. The statutes regulating the manner of making jury lists are frequently held to be directory merely, and not mandatory. The author cites cases in support of the text from Alabama, Mississippi, Missouri, North Carolina, Ohio, Pennsylvania, Rhode Island, and Washington. The article in Cyc. then states that it may be laid down as a general rule that courts do not look with indulgence upon objections to irregularities in selecting or drawing grand juries, committed without fraud or design, and which have not resulted in placing upon the panel disqualified jurors. In Giano v. People, 30 Colo. 20, 69 P. 504, we said: 'It has been pretty generally held that statutes for the summoning or drawing of jurors, unless otherwise therein expressly provided, are directory in their nature, and do not furnish an exclusive method. Our statute does not make exclusive the method therein prescribed under which defendant contends his jury should have been summoned.' In Board of County Commissioners v. Brown, 2 Colo.App. 473, 31 P. 525, a case in which there was an open venire issued, the county commissioners interposed a challenge to the array, for the reason that the jury was not obtained in the manner required by the statute. The Court of Appeals held: 'Courts shall have power to procure juries by an open venire, according to the ancient practice, whenever it may happen that one is not in attendance for the trial of causes under the procedure prescribed by the act.' See, also, Babcock v. People, 13 Colo. 515,...