Klink v. People

• Decision Date: 06 November 1891
• Citation: 16 Colo. 467,27 P. 1062
• Parties: KLINK et al. v. PEOPLE.
• Court: Colorado Supreme Court

27 P. 1062

16 Colo. 467

KLINK et al. v. PEOPLE.

Supreme Court of Colorado

November 6, 1891

Error to criminal court, Pueblo county; THOMAS T. PLAYER, Judge.

Indictment against Oscar Klink and others for assault with intent to rob. From a judgment of conviction defendants bring error. Affirmed.

Syllabus by the Court

1. When the charge to the jury is not embodied in the record, the supreme court will presume that it correctly stated the law of the case.

2. As a general rule, the failure of opposing counsel to interpose objection, when improper language or argument is being used in addressing the jury, will be treated by the supreme court as a waiver of the objection.

3. After the final disposition of a criminal cause and lapse of the term, the trial court has no jurisdiction to entertain an application to reconsider its ruling upon motion for a new trial.

4. The provision of the Civil Code authorizing the vacation of judgments, under certain circumstances, within five months after the rendition thereof, is confined to civil actions; it has no application to criminal cases.

5. In a criminal case, if after the lapse of the term the principal witness for the prosecution admits that he committed perjury such admission may, under proper circumstances, be ground for the exercise of executive clemency.

6. The testimony of an accomplice is received with caution and regarded with suspicion. The great importance of corroborating testimony or circumstances is always urged upon juries, and verdicts of conviction are seldom sustained in the total absence thereof.

7. Testimony of the accused concerning his whereabouts on the day of the forming of a conspiracy to commit crime is not newly-discovered evidence. Besides, proofs of his whereabouts, mentioning no particular hour, and which, if true, nevertheless leave ample opportunity for his being present and participating in the conspiracy, are not so material as to render the court's ruling denying a new trial reversible error.

McFeely & McAliney, for plaintiffs in error.

Joseph H. Maupin, Atty. Gen., for the People.

HELM C.J.

Plaintiffs in error were indicted, tried, convicted, and sentenced upon the charge of assault with intent to rob. The instructions not being embodied in the record before us, we must presume they correctly stated the law of the case. The verdict is not entirely unsupported by evidence. On the contrary, if the jury believed the testimony of Miller, the record amply warrants their finding. It does not appear that any objection was at the time interposed to the language employed by the prosecuting attorney in making his closing argument before the jury. The conduct imputed to him was not grossly improper; but assuming that he should have refrained therefrom, since defendants failed to interpose timely objection, we must decline, under the circumstances here presented, to consider the merits of this assignment of error. Cook v. Doud, 14 Colo. 483, 23 P. 906, and cases; Weeks, Attys., § 112. Undoubtedly, courts as well as attorneys are charged with the obligation of protecting parties from this kind of unfair treatment; and we do not say that an abuse of the attorney's privilege in this regard may not be so flagrant as to warrant reversal, even though court and counsel neglect to discharge their duty. But, as a general rule, the failure to interpose timely objection will be treated in this court as a waiver thereof. The application for a reconsideration of the ruling upon the motion for a new trial was not presented until a term of court subsequent to the term at which the trial, conviction, and sentence took place. The object of this proceeding was not to correct some clerical misprision of the clerk, or to amend the judgment in some merely formal particular, or to procure the entry of some ruling actually pronounced, but inadvertently omitted its purpose was to reopen the judgment and obtain a retrial of the entire issues. There must be an end to criminal as well as civil proceedings. After the final disposition of the case and the lapse of the term, the court had no jurisdiction to entertain the application in question. If this motion could be heard, there would be nothing to prevent a repetition of similar...