Ratcliff v. People

• Decision Date: 15 January 1896
• Citation: 43 P. 553,22 Colo. 75
• Parties: RATCLIFF v. PEOPLE.
• Court: Colorado Supreme Court

43 P. 553

22 Colo. 75

RATCLIFF v. PEOPLE.

Supreme Court of Colorado

January 15, 1896

Error to district court, Chaffee county.

Benjamin Ratcliff was convicted of murder in the first degree, and appeals. Affirmed.

Vinton G. Holliday, for plaintiff in error.

Byron L. Carr, Atty. Gen., and F. P. Secor, Asst. Atty. Gen., for the People.

GODDARD J.

The plaintiff in error was convicted of the crime of murder of the first degree, and sentenced to suffer the death penalty. He was tried upon three separate informations, which respectively charged him with the deliberate and premediated killing of George Douglas Wyatt, Samuel Taylor, and L. F McCurdy. On motion of his counsel these informations were consolidated for trial, upon the ground that the offenses charged were of the same character, and grew out of one and the same transaction. Separate verdicts were rendered. The record before us presents the proceedings in the Wyatt case, which are identical with those in the other cases. From this record it appears that, upon a complaint duly sworn to before a justice of the peace, plaintiff in error was arrested, and brought before said justice for a preliminary examination; that he waived examination, and was bound over to appear at the next ensuing term of the district court. A transcript of the proceedings before the justice of the peace was duly certified to the clerk of the district court, and filed in his office before the first day of the next term. At that term, by leave of the court, an information charging the plaintiff in error with the crime of murder, signed by the district attorney, was filed upon this transcript. The information was not verified. The fact that the information was unverified is the principal ground relied on for reversal. It is insisted that the act of 1893 amending section 2 of the act of 1891, ^[1] in that it provides for no verification of an information, in case a preliminary examination has been had, is in derogation of section 7 of our bill of rights, which provides that 'no warrant to search any place or seize any person or thing shall issue without describing the place to be searched, or the person or thing to be seized, as near as may be, nor without probable cause, supported by oath or affirmation reduced to writing.' The case of Lustig v. People, 18 Colo. 217, 32 P. 275, is cited in support of this claim. In that case the court had under consideration the act conferring jurisdiction upon county courts in misdemeanor cases, and the validity of a conviction thereunder upon an unverified information; and it was held that a prosecution and conviction under an information not supported by an oath or affirmation were in violation of said section, and could not be upheld. But it will be observed that the act under consideration in that case provided for the initiation of a prosecution upon the filing of an information in the county court and the issuance of a warrant of arrest thereupon, without any preliminary affidavit or examination,--a proceeding clearly in violation of the requirements of section 7 of the bill of rights. But the information act of 1891, as amended in 1893, is not amenable to this objection, since it expressly provides that, unless a preliminary examination has been had or waived, the information must be supported by a proper and sufficient affidavit before a warrant of arrest can issue. The objection, therefore, to the information under consideration, is not supported by the reasons that controlled the decision in that case. The information act under which this prosecution was had has been before this court for consideration in several cases, and in each the constitutionality and validity of its various provisions has been upheld. See In re Dolph, 17 Colo. 35, 28 P. 470; Jordan v. People, 19 Colo 417, 36 P. 218; Nesbit v. People, 19 Colo. 441, 36 P. 221; Brown v. People, 20 Colo. 161, 36 P. 1040. In the first three cases, convictions upon informations based upon preliminary examinations were sustained. It does not appear from the records in those cases whether the informations were verified or not; but in the latter case the objection to the verification of the information relied on for a reversal was, in its force and effect, the same as the objection now urged, the information being verified only by the district attorney, on information and belief. The record failed to disclose whether a preliminary examination was had, and a motion to quash the capias issued upon the information, for the reason that the same was not supported by oath or affirmation, was overruled. It was held that, in the absence of evidence to the contrary, it would be presumed that a preliminary examination was had, and in that event the verification was sufficient. In discussing the provisions of the act of 1891 touching the manner in which informations should be verified, we said: 'By these provisions, two conditions are provided upon which an information may be filed: First, where there has been a preliminary examination, or the same has been waived; and, second, where the prosecution has its inception in the district court, and the information furnishes the foundation for the issuance of a capias. In the latter case it is provided that the information shall be supported by the affidavit of some person who has knowledge of the facts, and verifies them upon his own knowledge. Section 2 contemplates the verification by the district attorney in cases where a preliminary examination has been had. In the latter instance his verification upon information and belief is sufficient, since the arrest of the party charged must have been made upon warrant issued upon the requisite affidavit before the justice or examining officer, which affidavit, warrant, etc., are required to be delivered by the examining magistrate to the clerk of the court having jurisdiction of the offense.' Brown v. People, supra. Since the decision in that case the legislature, by the act of 1893, has amended section 2 of the act of 1891, and dispensed with the unnecessary and useless formality of a verification by the district attorney on information and belief, and provided that, in case a preliminary examination has not been had or waived, the information shall be verified by the affidavit of some person who has knowledge of the commission of the offense. This amendment, however, in no way affects the application of our views, as therein expressed, to the case at bar, since a preliminary examination was had, and the arrest of plaintiff in error was made upon a warrant issued upon a sufficient affidavit before the justice of the peace. We deem it unnecessary to notice at length the argument of counsel for plaintiff in error to the effect that the act of 1893 does not repeal section 2 of the act of 1891, but leaves in force the...