McClain v. People

• Decision Date: 28 June 1943
• Docket Number: 15156.
• Citation: 141 P.2d 685,111 Colo. 271
• Parties: McCLAIN et al. v. PEOPLE.
• Court: Colorado Supreme Court

141 P.2d 685

111 Colo. 271

McCLAIN et al. v. PEOPLE.

No. 15156.

Supreme Court of Colorado, En Banc.

June 28, 1943

Rehearing Denied Sept. 27, 1943.

Error to Jefferson County Court; Christian D. Stoner, Judge.

C. C McClain and others were convicted of selling whisky after hours, and they bring error.

Affirmed.

HILLIARD and GOUDY, JJ., dissenting on petition for rehearing.

McDougal and O'Dell, Robert L. McDougal, and Forrest C. O'Dell, all of Denver, for plaintiffs in error.

Gail L Ireland, Atty. Gen., H. Lawrence Hinkley, Deputy Atty. Gen and James S. Henderson, Asst. Atty. Gen., for defendant in error.

BURKE Justice.

Plaintiffs in error, hereinafter referred to as defendants or by name, were convicted of selling whiskey between midnight and 8:00 a. m. in violation of the statute. McClain was fined $200, O'Brien $100, and Cardwell $15, and committed pending payment. To review that judgment they prosecute this writ. Five rulings of the trial court are assigned as error and argued, i. e.: 1. Holding the statute relied upon constitutional. 2. Overruling a challenge to the panel and a motion to disqualify the sheriff. 3. Admitting evidence of McClain's offer to plead guilty. 4. Admitting statements of one defendant made outside the presence of others. 5. Refusal of a cautionary instruction as to the testimony of a witness.

1. The questioned statute makes it unlawful to sell intoxicating liquor between the hours of 12:00 a. m. and 8:00 a. m. 'provided, that in cities having a population of fifty thousand (50,000) or more' the hours so fixed are 2:00 a. m. and 7:00 a. m. Sec. 17(d), chap. 89, '35 C.S.A. Defendants assert that this classification violates section 25, Article V of our constitution. Said section forbids the passage of local or special laws in various specifically enumerated cases (of which that here in question is not one) and concludes: 'In all other cases, where a general law can be made applicable, no special law shall be enacted.' Whether a general law can be made applicable is a question of legislative discretion. Brown v. Denver, 7 Colo. 305, 309, 3 P. 455; Carpenter v. People, 8 Colo. 116, 122, 5 P. 828. Courts can interfere only when there is a clear abuse of that discretion. Coulter v. Routt County, 9 Colo. 258, 11 P. 199. We find no such abuse here. Added police supervision and control, usually found in larger municipalities, would alone justify the classification. In a somewhat similar situation we have sustained a like distinction on principles here applicable. People v. Earl, 42 Colo. 238, 263, 94 P. 294; Driverless Car Co. v. Armstrong, 91 Colo. 334, 14 P.2d 1098. The statute is constitutional.

2. The cause came on for trial December 8. Thirty jurors had already been summoned by the sheriff on an open venire with full knowledge of defendants. That morning they filed an affidavit of prejudice against the sheriff and a challenge to the array. When the case was called these were presented and overruled. Motion and challenge were not in apt time. Defendants' excuse is that they did not realize the prejudice of the sheriff and the resulting injury until they obtained the jury list. They repeatedly assert that their objection goes primarily to the first fifteen names on that list. If the ruling were prejudicial later developments should disclose it. They should disclose the disqualification of the jurors so summoned or some considerable number of them, at least the first half, and that defendants were compelled to exhaust their peremptory challenges. The record is silent as to developments on voir dire; the number of jurors, if any, excused for cause; the number of peremptory challenges exercised; and the names of the jurors finally sworn. For aught we know no prejudice was disclosed, no juror was excused for cause, no peremptory challenge was exercised, and the twelve finally sworn were all selected from the first fifteen names on the list. Where the record is silent the law presumes regularity and he who claims prejudice must show it. Doyle v. People, 65 Colo. 124, 173 P. 1141; Hoffman v. People, 72 Colo. 552, 212 P. 848. The same rule applies here as in cases where a motion for a change of venue on the ground of prejudice of the inhabitants is overruled. If examination and challenges fail to indicate possible prejudice the presumption is against it. Wilder v. People, 86 Colo. 35, 42, 278 P. 594, 65 A.L.R. 1260.

3. Sheriff Morris testified that McClain admitted selling after hours. Called as a witness McClain denied it. On cross-examination be was asked if he had not so stated to the district attorney in the latter's office. He answered in the negative. Then the question, 'Isn't it a fact, Mr. McClain, you said you would plead guilty if this case was put in the justice court? Ans. There was a conversation about that but I didn't agree to it.' The sheriff was called on rebuttal. 'Q. Mr. Morris, Did defendant say in your presence in my office that he would plead guilty to this charge? A. He did * * *. McClain wanted to make a deal to take this case out of the present place where it was filed and tried in the justice court which he offered to plead guilty if that was done.' Admission of this evidence over objection is here urged as a violation of the rule against the admission of offers of compromise. There is no question of that rule in civil cases. There is a serious question of its applicability in criminal cases because the law encourages the compromise of the former, but frowns upon the latter. However, we pass that question, since this evidence was clearly admissible for another reason. An offer to plead guilty with no strings attached could properly be construed as an admission of guilt and such are always admissible. It will be observed that the original question was whether McClain had admitted guilt. This was entirely proper as a part of the state's main case. A disagreement arose as to what he did say and this involved the correct interpretation of his statement. On rebuttal the question was one of McClain's credibility. The condition attached had no relation to McClain's innocence. It concerned only the court in which he proposed to make the plea, hence the state was entitled to maintain that this was an admission of guilt, the defense the contrary. The implication to be drawn was for the jury. Christian v. United States, 5 Cir., 8 F.2d 732; Carter v. State, 161 Tenn. 698, 34 S.W.2d 208; State v. Benton, 173 La. 600, 138 So. 116. Contrary authorities are cited in the briefs of counsel but we think the rule stated in the foregoing is, as there concluded, the more logical and supported by the greater weight and number of adjudicated cases.

4. Evidence of certain statements made by one defendant out of the presence of the others was admitted over objection and thereon error is assigned. The general character of these is thus illustrated: Byron, an investigator for the district attorney and a witness for the people, at about 12:30 a. m asked for a drink at McClain's place. O'Brien, the bartender, told him the bar was closed, but 'If you want to go back to one of the booths I can take care of you there.' He went and was there served by Cardwell. On the night of the raid, while the sheriff was busy taking exhibits and names, defendant Cardwell said to Byron if they had seen the sheriff come in 'they would have got it (the liquor) off the table.' After the raid McClain stated that 'if liquors were sold after hours the sales were intentional.' If such statements were technically within the rule it...