In re Lowrie
| Decision Date | 08 January 1886 |
| Citation | 9 P. 489,8 Colo. 499 |
| Parties | In re LOWRIE. |
| Court | Colorado Supreme Court |
Petition for a writ of habeas corpus.
Geo. H. Kohn and S.E. Browne, for petitioner.
T H. Thomas, Atty. Gen., for the People.
The petitioner charges in his petition for the writ of habeas corpus that he is illegally deprived and restrained of his liberty by confinement at hard labor in the state penitentiary, under a judgment of the criminal court of Arapahoe county, rendered against him upon a conviction for grand larceny. The illegality charged is that he was not proceeded against criminally for said offense upon the presentment or indictment of the grand jury, but upon an information filed by the district attorney of the Second judicial district. He alleges that the matter complained of renders his trial and conviction void.
The petition questions the constitutionality of section 23 of the act of the legislature approved February 7, 1883, entitled 'An act to provide for the organization and maintenance of criminal courts; to prescribe the jurisdiction, powers proceedings, and practice of said courts; and to define the duties and qualifications of the judges and other officers connected therewith; and to repeal * * * all other acts and parts of acts inconsistent with this act.' This act provides that criminal courts shall be courts of record, and shall have concurrent jurisdiction with the district courts of the same counties in all criminal cases not capital, and such appellate jurisdiction as may be provided by law. It is further provided that they shall be governed by the practice and proceedings which are now or may hereafter be prescribed by law for district courts in criminal cases, so far as the same can be made applicable and are not inconsistent with the provisions of this act. The district attorney of the judicial district in which any criminal court is established is made prosecuting attorney of the criminal court, and power is conferred upon the judge of said court to appoint a special district attorney, when necessary, to perform the services of the district attorney. The portion of the act complained of as obnoxious to the state and federal constitutions is section 23, which dispenses with the grand jury, and provides for the prosecution of offenses in said court upon informations filed by the district or prosecuting attorney. Section 23 is as follows:
The balance of the section prescribes the manner in which information shall be verified, and that the verification shall not be taken on the trial as evidence of the truth of the information; also that the verification shall not be read by or submitted to the jury trying the case.
The statutory punishment for the offense of which petitioner was convicted, grand larceny, is confinement in the penitentiary for a term not less than one, nor more than ten, years. The petitioner was therefore convicted of a 'felony,' as the term is defined by section 4 of article 18 of the constitution, which is:
'The term 'felony,' wherever it may occur in this constitution, or by the laws of this state, shall be construed to mean any criminal offense punishable by death or imprisonment in the penitentiary, and none other.' The offense for which he was convicted came also within the list of infamous crimes, as defined by statute. Gen. St. § 944. After the filing of the information against the petitioner in the criminal court, he moved said court to quash the same upon the grounds that it charged an infamous crime, which could only be prosecuted upon a presentment or indictment of a grand jury; that the statute providing for the filing of informations by the district attorney was unconstitutional and void; that the law for the punishment of crime is general in its nature, and must have a uniform application to the entire state; and because the prosecution upon information for such crimes is contrary to the constitution of the United States. This motion was denied, to which ruling of the court the petitioner duly excepted.
Counsel for the petitioner cite several sections of the state constitution, which they claim have been violated by the enactment of the statutory provisions complained of, among which are the following:
The attorney general, who appears for the state, is of opinion that the proceedings had in the criminal court are valid, and that the statute authorizing prosecutions upon information of a district attorney is constitutional. He contends that the entire grand-jury system is nothing else than a rule of practice or a mode of proceeding, and quotes section 28 of article 6 of the constitution to show that rules of practice are only required to be uniform in courts of the same class or grade. The section quoted is as follows:
'All laws relating to courts shall be general and of uniform operation throughout the state, and the organization, jurisdiction, powers, proceedings, and practice of all courts of the same class or grade, so far as regulated by law and the force and effect of the proceedings, judgments, and decrees of such courts severally, shall be uniform.'
He calls attention to the fact that the act of the general assembly in question provides for the organization of criminal courts, prescribes a uniform system of proceeding and practice for such courts throughout the state, and generally conforms to the constitutional requirements above mentioned. Relying upon the soundness of the foregoing propositions, the attorney general concludes that no conflict exists between the criminal court act of February 7, 1883, and said sections 2 and 23 of article 2 of the constitution. As to said section 2, 'that, until otherwise provided by law, no person shall, for a felony, be proceeded against criminally otherwise than by indictment,' he points to the above-mentioned act of the general assembly, and says it has been 'otherwise provided by law,' as required by the above sections. It is also strongly urged in the argument that section 23 of article 2, and section 28 of article 6, of the constitution, afford ample authority for abolishing the grand-jury system as to the criminal courts, leaving it in force as to the district courts.
We are of opinion that counsel for the state has fallen into two grave errors: First, in assuming that all constitutional requirements are satisfied when the procedure or practice is made uniform in courts of the same class or grade, in accordance with the provisions of section 28 of article 6; second, that this system may be abolished as to one class of courts having jurisdiction of felonies not capital, to-wit, criminal courts, and that it may remain in force in another class of courts having general jurisdiction of all felonies throughout the state, viz., district courts. The above-mentioned propositions do not seem to reach the merits of the objections raised by the petition and record as to the unconstitutionality of that part of the act of 1883 which provides that 'no grand jury shall be summoned or impaneled in any criminal court,' etc.
It is true that section 28 of article 6 of the constitution requires the practice and proceedings of all courts of the same class or grade to be uniform. It is also true that the three criminal courts now existing in the state for the respective counties of Arapahoe, Pueblo, and Lake are the only courts now existing of that class or grade. But it does not follow that an act of the general assembly assuming in its title to provide for the organization of these courts, and to prescribe the jurisdiction, powers, proceedings, and practice thereof, can abolish, as to this class of courts alone, and as to the citizens in the particular sections of the state over whom they may exercise jurisdiction, the grand-jury system. This institution has come down to us from magna charta, and has ever been regarded by the masses as a protection against arbitrary and malicious prosecutions. When the legislature undertakes to abolish as to a portion of the state rights and privileges guarantied by both the state and federal constitutions to the whole people of the state, until stricken out of the fundamental law, it should look beyond a particular provision of the constitution intended only to regulate the practice and proceedings of the different classes of courts, so that the same should be uniform in those of the same class or grade. Such uniformity was never intended to be attained by ignoring or abolishing the fundamental rights of any portion of the people. The legislature may prescribe the...
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