Robran v. People ex rel. Smith
| Decision Date | 18 January 1971 |
| Docket Number | No. 24464,24464 |
| Citation | 173 Colo. 378,479 P.2d 976 |
| Parties | Forrest W. ROBRAN, Plaintiff in Error, v. The PEOPLE of the State of Colorado, ex rel. John B. SMITH, District AttorneyWithin and For the Twelfth Judicial District of the State of Colorado, In andFor the County of Rio Grande, Defendant in Error. |
| Court | Colorado Supreme Court |
Robert C. Duthie, Durango, for plaintiff in error.
Smith & Smith, John B. Smith, Alamosa, for defendant in error.
This writ of error was sued out by the sheriff of Rio Grande County (referred to as the sheriff) from a judgment finding him in contempt of court. We affirm.
At the time of the district court hearings in this matter counsel for the defendant in error was district attorney. He no longer holds this position and appears here as retained counsel.
Two alleged matters of contempt were involved in this proceeding. First, the sheriff allegedly permitted three prisoners awaiting trial for first degree murder, to whom bail was denied, to be free a substantial amount of time, to live with their wives, and to accept employment. Secondly, he allegedly removed from the office of the clerk of the court keys which had been admitted in evidence in the murder case and delivered them to the widow of the victim in that case, none of which acts of the sheriff were authorized by the court.
Following the trials and conviction of the three prisoners of the crime of first degree murder, the court entered an order directing the district attorney to make an investigation of the truth of information the judge had received from several sources that the sheriff had not kept the prisoners in confinement. The district attorney also was ordered either to file a contempt charge against the sheriff or to make a report to the court as to why there should not be prosecution for contempt. Thereafter, the district attorney filed a petition alleging the failure to confine the three prisoners, and the sheriff was ordered to show cause why he should not be punished for contempt.
In the hearing under the order to show cause it was established by uncontroverted testimony that the three men were denied bail and thereafter were permitted by the sheriff to be at large. The evidence also disclosed without conflict that the sheriff knew that the men were at large and that they were released under his direction.
At the conclusion of that hearing, the court took the matter under advisement. Thereafter and prior to the issuance of any judgment the district attorney moved for the issuance of a supplemental contempt citation predicated upon the alleged removal of the keys by the sheriff. A supplemental citation to show cause was issued and a hearing was held. Thereafter, the court entered its findings of fact, conclusions of law and judgment which embraced the matters considered at both hearings. At the second hearing, the sheriff conceded the truth of the allegations made in the petition for the supplemental citation, and the district attorney also introduced evidence supporting the allegations.
The sheriff contends that the court had no jurisdiction for the following reasons: namely, that a sheriff is a creature of the Colorado constitution; that C.R.S. 1963, 35--5--11 gives the sheriff control over and custody of the prisoners in the county jail; and that as to the matters involved here he was acting under his statutory authority and not as an officer of the court. He cites as authority McMillan v. Hammond, 158 Colo. 40, 404 P.2d 549 (1965); In re Jameson, 139 Colo. 171, 340 P.2d 423 (1959); People ex rel. Dunbar v. County Court, 128 Colo. 374, 262 P.2d 550 (1953); Struble v. Barger, 128 Colo. 188, 261 P.2d 497 (1953); Best v. People, 121 Colo. 100, 212 P.2d 1007 (1949); Richart v. Board of Com'rs of Boulder County, 95 Colo. 153, 33 P.2d 971 (1934); People ex rel. Grenfell v. District Court, 89 Colo. 78, 299 P. 1 (1931); and Roberson v. People, 40 Colo. 119, 90 P. 79 (1907). All of these cases are distinguishable.
An order refusing bail is an order that the accused shall be confined. We hold that when a sheriff knows that his prisoner has been refused bail, it is a contempt of the court refusing the bail for the sheriff wilfully to permit the prisoner to be at large. United States v. Hoffman, 13 F.2d 269 (D.C.1925); and Ex parte Shores, 195 F. 627 (D.C.1912).
The sheriff moved that there be an arraignment as in a criminal case. The court overruled the motion and ordered the sheriff to file an answer. The sheriff complied with this order, but insists that he was entitled to be arraigned. The only authority cited by the sheriff in support of his proposition is Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.E.2d 522 (1968). The entire argument in the sheriff's brief is as follows: The defendant in error has not argued the matter in his brief. Our research discloses the following authorities which hold that an arraignment is not necessary in a criminal contempt proceeding: Coons v. State, 191 Ind. 580, 134 N.E. 194 (1922); State ex rel. Wright v. Barlow, 132 Neb. 166, 271 N.W. 282 (1937); and Nebraska Children's Home Soc. v. State, 57 Neb. 765, 78 N.W. 267 (1899). We hold that no arraignment is required, at least with respect to those criminal contempts which are analogous to petty offenses.
Relying on Bloom v. Illinois, Supra, the sheriff argued to the trial court and here that he was entitled to a jury trial. In Bloom the petitioner was convicted of criminal contempt and sentenced to 24 months' imprisonment. The United States Supreme Court held that the sentence of 24 months made this a serious offense and ruled that the petitioner was entitled to a jury trial. The opinion further states that it does not affect the power to punish petty criminal contempts without a jury. Bloom v. Illinois was decided on May 20, 1968. On December 22, 1969 there was announced Mr. Justice Lee's opinion in Austin v. City and County of Denver, Colo., 462 P.2d 600, in which it was held that there...
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