People v. Gibson

• Decision Date: 03 June 1912
• Parties: PEOPLE v. GIBSON et al.
• Court: Colorado Supreme Court

125 P. 531

53 Colo. 231

PEOPLE v. GIBSON et al.

Supreme Court of Colorado, En Banc

June 3, 1912

Rehearing Denied July 1, 1912.

Error to District Court, Fremont County; Charles A. Wilkin, Judge.

Information by the People, at the instance of the Attorney General against D. E. Gibson and others. A motion to quash was sustained by the trial court, and petitioner brings error. Reversed and remanded.

The statutes of the territory of Colorado establishing the grand jury system and authorizing prosecutions by indictment, that establishing the office of county attorney, and that establishing the office of district attorney (Rev.St.1868, c 24), and prescribing their respective duties and authority that providing for the appointment by the court of a district attorney pro tem., in certain cases (G.L.1877, §§ 1897-1899 Rev.St.108, §§ 2109-2111); the provisions of the constitution creating the office of attorney general, and the statute prescribing his duties (G.L.1877, § 1103 et seq., Rev.St.1908, § 6168 et seq.); the act providing for the prosecution of offenders by information (Laws 1891, p. 240, Rev.St.1908, §§ 1957-1968), and the amendatory act of 1893 (Laws 1893, c. 66); and the act providing that a grand jury shall not be summoned unless specially ordered by the court (Laws 1891, p. 253, Rev.St. § 3695), are to be taken together as in pari materia, and construed, if possible, so as to be consistent and harmonious one with the other, and in their several parts.

Benjamin Griffith, Atty. Gen., and Archibald A. Lee, Deputy Atty. Gen., for plaintiff in error.

Hayt, Dawson & Wright, of Denver, and McLain & Pease, Waldo & Stump, and H. R. Waldo, all of Cañon City, for defendants in error.

WHITE J.

The Attorney General of the state, in the name of the people thereof, filed in the court below, by its leave first had and obtained, two informations purporting to charge D. E. Gibson, W. M. Gibson, Herman Loehr, John Cleghorn, and A. R. Frisbie with the commission of certain felonious offenses. In one information they are charged with having unlawfully conspired to obtain from the state of Colorado the sum of $25,000 by falsely and fraudulently representing to the Board of Commissioners of the Colorado State Penitentiary that goods, wares, and merchandise of such value were sold and delivered to the state of Colorado for use in the state penitentiary. In the other, they are charged with having obtained such sum of money from the state of Colorado by false pretenses. The informations are substantially in the form prescribed by the statute, except the name of the Attorney General appears therein instead of that of the district attorney, and the recitals that the Governor of the state requested the Attorney General to prosecute the actions. Capiases were issued, defendants arrested, and subsequently admitted to bail. Thereafter motions were filed questioning the validity of the informations and proceedings thereunder, upon the ground that the Attorney General had no power to commence and prosecute the actions by informations. The court sustained the motions, discharged the defendants, and dismissed the proceedings. The people bring the cases here for review.

The sole question for determination is whether the Attorney General had authority to charge by information, in the name of the people, the commission of a felony, and to otherwise prosecute the actions in the district court.

Defendants contend that there is no analogy between the office of Attorney General of this state and the officer known as the Attorney General under the common law of England, and that therefore no inherent common-law right exists in the Attorney General of this state to prosecute criminal actions of any kind, and that such officer has not, by constitutional or statutory enactment, been invested with the power to prosecute felonies by information.

While neither conceding nor denying the correctness of the contention as to the nonexistence of common-law powers in the Attorney General, the plaintiff maintains that the written law vests the power in, and makes it the duty of, such official to prosecute by information those guilty of the commission of felonies and other crimes, when requested so to do by the Governor or General Assembly.

In arriving at a correct conclusion as to the powers of the Attorney General, we deem it helpful to refer briefly to some of the territorial and state legislation pertaining to the prosecution of crimes.

In 1861 the Council and House of Representatives of the territory established the grand jury system (Laws 1861, p. 334), and authorized the institution of prosecutions by indictment. It also established the office of county attorney in each county (Laws 1861, p. 213), and provided for the election of an incumbent thereof for a designated term. He was required to appear in the district court in his county and prosecute and defend, on behalf of the territory or county, all suits, indictments, applications, or motions, civil or criminal, to which the territory or county was a party, and, inter alia, to draw and sign all indictments or other pleadings connected with his office, and, whenever required by the grand jury, to appear before that body and examine witnesses, etc.

By chapter 24, R. S. 1868, the office of county attorney was abolished, and the office of district attorney for each judicial district established. The district attorney was, inter alia, required to appear in behalf of the territory and the several counties of his district in all indictments, suits, and proceedings pending in the district court in any county within his district wherein the territory or the people thereof, or any county of his district was a party. He was also required to appear in the Supreme Court on writs of habeas corpus sued out by persons charged with, or convicted of, public offenses before the judge of his district. Furthermore, he was commanded to discharge all duties theretofore imposed by law upon the county attorney and not enumerated in the act of 1868. A clause in section 4 of the act, defining his duties, reads: 'Nothing contained in this section shall be so construed as to prevent the county commissioners of any county from employing one or more attorneys to appear and prosecute or defend in behalf of the people of the territory or such county, in any such indictment, action or proceeding.' The act became effective in one judicial district immediately upon its approval, while in other districts it did not become effective until a subsequent date; the county attorneys in the meantime necessarily performing the duties of prosecuting officials therein as before.

By an act of the territorial Legislature of 1876 (Laws 1876, p. 65) it was provided that: 'If the district attorney be interested or shall have been employed as counsel in any case which it shall be his duty to prosecute or defend, the court having criminal jurisdiction may appoint some other person to prosecute or defend the cause,' or 'if he be sick or absent, such court shall appoint some person to discharge the duties of the office until the proper officer resume the discharge of his duties,' and 'the person thus appointed shall possess the same power * * * as the proper officer would if he were present.' Sections 897, 898, 899, G. L. 1877; sections 2109, 2110, 2111, R. S. 1908.

Thereafter the Constitution was adopted, and the office of district attorney became an office thereunder, the duties of which were to be as provided by law. Article 6, § 21, Const. And by section 1 of the Schedule to the Constitution, R. S. 1908, p. 60, the duties pertaining to the territorial office of district attorney became the duties pertaining to such office under the Constitution; the word 'state' having been inserted in the territorial act in place of 'territory,' in accordance with an act approved March 22, 1877, under which the General Laws were compiled and published.

The Constitution also created the office of Attorney General, made the incumbent thereof an executive officer of the state, and required him to perform such duties as may be prescribed by the Constitution or by law. Article 6, § 1. No specific duties pertaining to the matters here under consideration are prescribed by the Constitution to be performed by the Attorney General. However, article 3 of an act of the General Assembly, approved February 27, 1877 (section 1103 et seq., G. L.; section 6168 et seq., R. S. 1908) prescribes some of the duties to be performed by that official. Among others therein prescribed, he is required to 'appear for the state, prosecute and defend all actions and proceedings, civil and criminal, in which the state shall be a party or interested, when required to do so by the Governor or General Assembly.'

The above and foregoing constitutional and statutory enactments constituted the only written law pertaining to the matter here under consideration, until the enactment of 1891 (Laws 1891, p. 240) authorizing prosecutions by information. That act is entitled 'An act providing for the prosecution and punishment of crimes, misdemeanors and offenses by information.' The first section thereof invests the courts of the state with the same power and jurisdiction to hear, try, and determine prosecutions upon information and to do all acts in connection therewith as in cases of prosecution under indictment. The second section, as far as it has any bearing upon the matter before us, provides that 'all informations shall be filed in term time, in the court having jurisdiction of the offense specified therein by the district attorney of the proper county as informant, and his name shall be subscribed thereto either by himself, or by his deputy.' The third section insures to the defendant...