Parker v. People

• Decision Date: 26 June 1889
• Citation: 21 P. 1120,13 Colo. 155
• Parties: PARKER et al. v. PEOPLE.
• Court: Colorado Supreme Court

21 P. 1120

13 Colo. 155

PARKER et al. v. PEOPLE.

Supreme Court of Colorado

June 26, 1889

Error to criminal court, Arapahoe county.

Plaintiffs in error were indicted for several criminal offenses at the January, A. D. 1886, term of the district court of Arapahoe county, and the cases thereafter transferred to the criminal court of said county for further proceedings according to law. In the criminal court the cases were consolidated for trial at the request of the defendants, and a trial thereafter had of all the cases to the same jury, which resulted in a verdict of guilty in three of the cases, and a verdict of not guilty in the remainder. A motion for a new trial having been overruled, the court imposed a distinct sentence upon each conviction, the aggregate term of such sentences being seven years' imprisonment in the penitentiary for each defendant; the sentence in each subsequent case after the first to commence immediately upon the expiration of the term of sentence upon the next preceding conviction. To reverse these judgments this writ of error has been sued out.

H. B. O'Reilly, for plaintiffs in error.

Sam Jones, Atty. Gen., and H. Riddell, for the People.

HAYT J.

We will consider the questions raised by the numerous assignments of error in the order in which the same have been presented by counsel. By the first assignment of error the regularity of the selection and impaneling of the grand jury finding the indictments is questioned. The only record which we have before us of the proceedings in the district court is the one made out and filed in the criminal court at the time of the change of venue from the former to the latter. This record, after showing that the district court was regularly in session at the time for the transaction of general business, the proper officers being present, contains the following entries in case No. 3,173, and substantially the same entries in each of the other cases, to-wit: 'The People, etc., versus John R. Parker et al.--3,173. Burglary etc.--Be it remembered that heretofore, and on, to-wit, the 5th day of February, the same being one of the regular juridical days of the January term of said court, the following proceedings were had and entered of record in said cause, to-wit: At this day come the members of the grand jury, heretofore impaneled and sworn, and present to the court here the following true bills of indictment, to-wit 'The People, etc., versus John R. Parker, George Cushman and Charles Wilbur.--3,173. Burglary and Larceny.' Indorsed: 'A true bill.' FREDERICK J. BURTON, Foreman of Grand Jury.' April 13, 1886, there is this entry of record. 'The People, etc., versus John R. Parker, George Cushman, and Charles Wilbur.--3,173. Burglary and Larceny.--At this day comes Ledru R. Rhodes, district attorney, who prosecutes the pleas of the people in this behalf, and the said defendants are brought into court; and, it appearing to the court that the said defendants are in custody, it is ordered by the court that this cause be removed and certified to the criminal court of Arapahoe county, in accordance with the statute in such case made and provided.' This record, while quite inartificially drawn, is in substantial compliance with the act authorizing the transfer of cases from the district court to the criminal court of the same county. By this act the clerk was not required to transmit in each case the proceedings in reference to either the selection or impaneling of the grand jury, or any proceedings in the former court anterior to the finding of the indictment. We have, however, in this record sufficient to show that the grand jury returning this indictment had been previously impaneled and sworn under the supervision of the court, and certainly the presumption is warranted that the grand jury was organized according to law, although the preliminary record is not before us. Wilson v. People, 3 Colo. 328. The plaintiffs in error were defended by able counsel in the court below, who would have been swift to take advantage of any irregularity in the selection or impaneling of the grand jury finding the indictment, if any such existed, knowing the law to be that when such irregularity does not affirmatively appear from the record it must be taken advantage of by plea before trial, and cannot be raised for the first time in the appellate court, (Whart. Crim. Law, § 469; Bish. Crim. Proc. 887, 888;) and it is a significant fact that no such objection was urged in the court below at any stage in the proceedings. It is not necessary that the record of the formation of the grand jury should be repeated in each case. No good purpose would be accomplished by such unnecessary repetition. It is sufficient if such record be made once as a part of the permanent record of the term. Mr. Bishop, in his excellent work upon Criminal Procedure, says: 'Looking at the matter as one of principle, there can be no doubt that, as a question of propriety and good order, there ought to be a record made by the clerk of the appointment of foreman of the grand jury, together with the names of the grand jurors, and this should become a part of the permanent record of the term, but should not be repeated in the special record of each particular case. Yet, suppose such a thing is omitted from the general record, can each particular person who is indicted take advantage of the omission, and have the proceedings against him reversed? There appears to be no good reason why he should, especially if the court is one of general jurisdiction. And that he cannot is probably the better law, as seen in the midst of somewhat conflicting adjudications.' 1 Bish. Crim. Proc. § 1172. If plaintiffs in error in good faith desired a review of the proceedings had upon the formation of the grand jury, they should have brought the whole record up. There is no pretense on their part that the record does not exist. And it is a matter of astonishment that they should now gravely urge a review of the proceedings, without presenting a transcript of the entire record. Upon the record as presented, the first assignment of error must be overruled.

The record does not show that the plaintiffs in error were furnished with a copy of the indictments or a list of the jurors before arraignment, and this is assigned as error. It is provided by statute that 'every person charged with murder or other felonious crime shall be furnished, previous to this arraignment, with a copy of the indictment, and a list of the jurors and witnesses.' Gen. St. § 953. Complaint is made in this case, not on account of a failure to comply with the statute, but for the reason only that the record does not affirmatively show such a compliance. The statute does not designate the officer or person to make the service, and it does not provide that the court record shall show that such service has in fact been made. Many of the trial courts of the state have for convenience adopted the practice of having the record affirmatively show that the service has been had prior to arraignment, but we know of no rule of law requiring this to be done. Again, no objection was made in the court below on account of any failure to comply with the statute, and the presumption not only arises that the trial court proceeded regularly, but it has been expressly held that the defendant will be held to have waived his statutory right to a copy of the indictment and to be furnished with a list of jurors and witnesses previous to arraignment by going to trial without making the objection. Minich v. People, 8 Colo. 443, 9 P. 4, and cases cited.

In some of the indictments upon which the defendants were put upon trial counts for burglary and larceny were joined, and in others counts for burglary and receiving stolen goods. Here again no objection to such joinder was made in the court below, and, if the counts had been improperly joined, in the absence of such objection such misjoinder was thereafter cured by the verdict finding the defendants guilty upon only one count. However, had objection been made earlier, it could not have prevailed, as under the authorities counts for burglary and larceny may be joined in one indictment, and also counts for burglary ad receiving stolen goods. Archb. Crim. Pl. & Pr. (Pom. Notes) p. 295, note 1; Whart. Crim. Law, § 420.

The cases were consolidated for trial, and this is assigned for error. The record entry of the order of consolidation, after entitling the causes, is as follows, to-wit: 'At this day come the parties by their attorneys respectively, and thereupon the motion of the said defendants, cases numbering 1,015, 1,016, 1,017, 1,018, and 1,019 be consolidated for trial, which is accordingly done.' While this order is not very happily expressed, it shows that the cases were consolidated for trial upon motion of the defendants. Why the consolidation was asked, we are not advised. It may have been for the purpose of saving expense to the defendants, or for some expected benefit to arise to them from having...