People v. Fontuccio

• Decision Date: 07 May 1923
• Docket Number: 10291.
• Citation: 215 P. 145,73 Colo. 288
• Parties: PEOPLE v. FONTUCCIO
• Court: Colorado Supreme Court

215 P. 145

73 Colo. 288

PEOPLE v. FONTUCCIO

No. 10291.

Supreme Court of Colorado

May 7, 1923

Error to District Court, El Paso County; Arthur Cornforth, Judge.

Nicholas Fontuccio was charged with inciting a strike. A motion to quash the information was granted, and defendant discharged and the People bring error.

Reversed.

Victor E. Keyes, Atty. Gen., Samuel Chutkow, Asst. Atty. Gen., and John A. Carruthers, T. C. Turner, and Willis L. Strachen, all of Colorado Springs, for the People.

Orr &amp Little, of Colorado Springs, for defendant in error.

TELLER C.J.

Defendant in error was charged by information with inciting certain employees of a corporation to strike, prior to an investigation of the dispute by the Industrial Commission of Colorado. Four similar cases were consolidated with this case for trial. When a jury had been impaneled and sworn defendants moved the court to quash the information. The motion was sustained, the jury dismissed, and the defendants discharged.

The Attorney General brings the case here on error under section 1997, R. S. 1908 (section 7113, C. L. 1921). He contends that the court erred in sustaining the motion to quash after the jury was sworn, and that he erred also in holding that the information did not charge an offense. The record is very unsatisfactory, the bill of exceptions having been stricken because not signed in time, as a consequence of which action we are without record information as to the grounds upon which a motion to quash was made and sustained.

The prosecution was under chapter 180, Laws of 1915, which provides for the submission of labor disputes to the Industrial Commission for investigation and appropriate action. Section 30 of the act is as follows:

'It shall be unlawful for any employer to declare or cause a lockout, or for any employee to go on strike, on account of any dispute prior to or during an investigation hearing, or arbitration of such dispute by the commission, or the board, under the provisions of this act.'

Section 33 provides that:

'Any person who incites, encourages, or aids in any manner any employer to declare or continue a lockout, or any employee to go or continue on strike, contrary to the provisions of this act, shall be guilty of a misdemeanor,' etc.

The first-named section makes it unlawful to go on strike prior to such action as the Commission is required to take in any dispute; the other section makes it an offense to incite one to go on strike contrary to the provisions of the act--i. e before the Commission has made its investigation, etc. The information charged that----

'The defendant did then and there willfully and unlawfully incite, encourage, and aid certain employees of the Pikes Peak Fuel Company [naming them] to go on strike prior to an

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