People v. Zobel

• Decision Date: 03 March 1913
• Citation: 130 P. 837,54 Colo. 284
• Parties: PEOPLE v. ZOBEL.
• Court: Colorado Supreme Court

130 P. 837

54 Colo. 284

PEOPLE v. ZOBEL.

Supreme Court of Colorado, En Banc.

March 3, 1913

Error to District Court, Lake County; Charles Cavender, Judge.

August Zobel was charged with larceny of ores, and judgment was rendered dismissing the prosecution, and the People bring error. Reversed and remanded.

The district attorney of the Fifth judicial district filed an information against the defendant in error, charging him with the larceny of ores. Two others were also charged with the larceny of these ores, whether in the same or other informations is not altogether clear; but that is not material. Subsequently, in the same district court in which these criminal proceedings were instituted, and before the same presiding judge, a civil action against these parties for the recovery of the value of the ore so charged to be stolen was tried, and a judgment rendered against them. Thereafter the criminal proceedings against defendants other than Zobel were dismissed by the district attorney upon their promise to give evidence against Zobel. Later the district attorney made a motion to fix a time for the trial of Zobel when the presiding judge said to the district attorney that he had already heard the evidence in the civil action, and therefrom it appeared that the defendants against whom the charge had been dismissed were the principals in the crime and Zobel only an accessory, and, as the principals had been discharged by the district attorney, Zobel, as accessory could not thereafter be tried. The judge thereupon, over the objection and against the protest of the district attorney and notwithstanding the latter's statement that he had other evidence of Zobel's guilt than that produced at the trial of the civil action, dismissed the criminal charge against Zobel, discharged him, and released his bondsmen. To review this action, the district attorney has brought the case to this court for review on error, under and by virtue of the provisions of section 1997, R. S. 1908, which, so far as material to any question involved, is as follows: '* * * Writs of error shall lie on behalf of the state or the people to review decisions of the trial court in any criminal case upon questions of law arising upon the trial, motions to quash, demurrers, pleas in bar, pleas in abatement, motions in arrest of judgment, or where a statute is declared unconstitutional: * * * Provided, that nothing in this act shall be construed so as to place a defendant in jeopardy a second time for the same offense.'

On behalf of the people the district attorney contends that the dismissal of the action and the discharge of the defendant were erroneous, because that step could not be taken without his consent and over his objection; while on the part of the defendant the contention is that the question presented does not come within the purview of the section of the statute above quoted, for the reason that the dismissal was not...