Lustig v. People

• Decision Date: 30 January 1893
• Citation: 18 Colo. 217,32 P. 275
• Court: Colorado Supreme Court
• Parties: LUSTIG et al. v. PEOPLE.

32 P. 275

18 Colo. 217

LUSTIG et al. v. PEOPLE.

Supreme Court of Colorado

January 30, 1893

Error to El Paso county court.

Joseph Lustig and another were convicted of keeping open a tippling house on the Sabbath day, and appealed. Reversed.

The other facts fully appear in the following statement by HAYT C.J.:

This prosecution was commenced in the county court, by the filing of an information by the district attorney, charging the plaintiffs in error with keeping open a tippling house on the Sabbath day, contrary to law. The information was not sworn to by the district attorney; neither was it founded upon any preliminary examination previously held, nor upon the oath of any individual. Upon this information a warrant was issued upon which plaintiffs in error were arrested, and brought into court. A motion to quash the indictment was afterwards interposed, for the following reason, inter alia: Because such information was not verified or presented upon the oath of any party. The motion to quash having been overruled, a trial, conviction, and sentence followed.

J. K. Vanatta and W. Harrison, for plaintiffs in error.

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

HAYT C.J., (after stating the facts.)

Authority to institute the prosecution by information is claimed under section 1 of an act entitled 'An act to confer original jurisdiction upon county courts in misdemeanor cases.' Section 1: 'Original jurisdiction is hereby conferred upon the county courts in each of the several counties of this state in cases of misdemeanor, and such courts shall hereafter be empowered to try such cases upon information by the district attorney of the district in which such counties are situated.' Sess. Laws, 1889, p. 101. It is claimed that under this provision the information need not necessarily be based upon the oath or affirmation of any person, reduced to writing; that it is sufficient in this respect if signed by the proper prosecuting officer. In support of the position taken by counsel, reference is made to the common law. It is undoubtedly true that, under the ancient common law, the attorney general might inform against any party for a criminal offense, either upon sufficient evidence, or without any evidence at all. But this rule of the common law has been essentially changed in this respect by the seventh section of our bill of rights, which provides that no warrant 'to search any place, or seize any person or thing, shall issue without describing the place to be searched, or the person or thing to be seized, as near as may be, nor without probable cause, supported by oath or affirmation, reduced to writing.' The language of this section is too plain to admit of misconstruction. An information can serve no practical purpose in the administration of the criminal law unless a legal warrant can be issued thereon; and, to justify a warrant, there must be a charge under oath, reduced to writing. The public prosecutor is no longer authorized to institute a criminal prosecution...