Marrs v. People

• Decision Date: 10 June 1957
• Docket Number: No. 18125,18125
• Parties: M. G. MARRS, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 505

312 P.2d 505

135 Colo. 458

M. G. MARRS, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.

No. 18125.

Supreme Court of Colorado, En Banc.

June 10, 1957.

Wm. Atha Mason, Rifle, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., John W. Patterson, Asst. Atty. Gen., for defendant in error.

KNAUSS, Justice.

Plaintiff in error, herein referred to as defendant, seeks by writ of error to reverse a judgment and sentence imposed pursuant to trial and verdict finding him guilty of perjury.

It appears that in July 1955 an action was brought in the district court of Moffat County wherein defendant and others interested in a privately owned water pipeline in Blue Mountain City were named as defendants. The suit involved the operation and management of this private water line and in October 1955 the district court appointed a receiver to operate and manage the pipeline and enjoined all persons, including defendant, from interfering with the receiver or any of his operations as such. As a result of certain acts allegedly occurring on November 26, 1955, a petition was filed in the district court charging defendant with violation of the injunctive order, and a citation was issued requiring defendant to appear before the court to show cause why he should not be adjudged guilty of contempt. In January 1956 hearings were had in connection with said citation and as a defense defendant interposed an alibi, i. e. that he had not interfered with the pipeline because he was not in the vicinity thereof and in fact had gone to and was in Vernal, Utah at the time the receiver claimed defendant tampered with the pipeline on which the receiver's agents were working. Defendant so testified at the contempt hearing and it is admitted that he was duly sworn and that the trial court had jurisdiction of the matter. In that proceeding defendant was adjudged in contempt and a fine of one hundred dollars was imposed.

Thereafter and on May 12, 1956 the district attorney filed an information charging that defendant testified falsely on points material to the issue in the contempt proceeding, when he swore that between 8:00 A.M. and 4:00 P.M. on November 26, 1955 he did not interfere with or open or close a valve on the pipeline; that he did not interfere with the receiver's workmen then engaged in repairing said pipeline; that he did not see one Ward (an employee of the receiver) on said date; that he was not in or around Blue Mountain or said pipeline on said date; that he was in Vernal, Utah at said time and was accompanied on that trip by one McCormick, and that while in Vernal, Utah at said time he made certain purchases and received sales slips, particularly Exhibit 'B' from one Elva Timothy, and that he had not altered or changed the date on said slip. To this charge defendant entered a plea of not guilty. Trial was to a jury and, as stated, resulted in a verdict of guilty.

For reversal it is urged (1) that the jury was entitled to a full transcript of the contempt hearing to determine the materiality of the alleged false testimony; (2) that the defendant had already been fined $100 and that the instant proceeding was barred thereby; (3) that the falsity of the defendant's testimony was not established by two or more witnesses; and (4) that certain tendered instructions were not given to the jury.

The entire defense in the contempt matter was that defendant was not in or near Blue Mountain City on the 26th of November, 1955, and in an attempt to establish this he made the statements upon which the perjury charge was predicated.

In a prosecution for perjury the question of the materiality of the testimony alleged to be false is one of law for the court and not the jury. Thompson v. People, 26 Colo. 496, 59 P. 51; Wheeler v. People, 63 Colo. 209, 165 P. 257; Papas v. People, 98 Colo. 306, 55 [135 Colo. 461] P.2d 1330. Under the rule set forth in the Wheeler case, supra, it was held not error to refuse to submit the record in the contempt proceeding to the jury for its determination of the materiality of the evidence given by defendant in support of his alibi in the contempt hearing. In the case before us the transcript in the contempt proceeding was submitted to the trial judge and he properly determined that the testimony alleged to be false, was material to the issue in the contempt case.

In sum, the defendant in the contempt case testified that he was not in the vicinity of the work on the pipeline between 8:00 A.M. and 4:00 P.M. on November 26, 1955. The record discloses that the testimony of Elmer Earl Ward, one of the men employed on the repair job, J. S. Warner, Roy Blevins and Rose Warner, if believed by the jury, proved this sworn statement of defendant false. 'To show that the defendants were at the place where the alleged offense was committed at the time it was committed was one of the material facts to be established. No other single fact in the chain of facts could well be more material.' Wheeler v. People, supra.

It is here claimed that the present prosecution is barred by Rule 107(e), Colo. Rules of Civil Procedure, which reads: 'Nothing herein contained shall prevent the criminal prosecution of a person charged with contempt or proceeding in criminal contempt, provided, however, that if punishment is inflicted to vindicate the dignity of the court, as provided in subdivision (d), no further proceedings in criminal contempt shall be had upon the facts stated in the motion.'

The citation to show cause in the contempt matter was based on the motion and affidavit of Mr....