Schraeder v. People

• Decision Date: 07 May 1923
• Docket Number: 10605.
• Citation: Schraeder v. People, 73 Colo. 400, 215 P. 869 (Colo. 1923)
• Parties: SCHRAEDER v. PEOPLE.
• Court: Colorado Supreme Court

215 P. 869

73 Colo. 400

SCHRAEDER v. PEOPLE.

No. 10605.

Supreme Court of Colorado, En Banc.

May 7, 1923

Rehearing Denied June 4, 1923.

Error to District Court, Lake County; Francis E. Bouck, Judge.

Harry Schraeder was convicted of charging and receiving money for omitting and delaying to execute and serve a warrant, and he brings error.

Reversed and remanded, with instructions to discharge accused and quash the information.

Denison J., dissenting.

Ewing Arnold & Freeman, of Denver, and Paul W Crawford and Quentin D. Bonner, both of Leadville, for plaintiff in error.

Russell W. Fleming, Atty. Gen., and Oliver Dean, Asst. Atty. Gen for the People.

CAMPBELL J.

April 12, 1923, the district attorney of Lake county filed an information in the district court of that county, against Harry Schraeder, the duly elected and qualified sheriff of the county, in which it is alleged that on July 12, 1921, at and in Lake countythe defendant'extorsively' charged and received of and from one Chris Uponovitch the sum of $200 in money for omitting and delaying to serve and execute a warrant issued by a justice of the peace.The jury found the defendant guilty as charged, and the court, after overruling his motions for a new trial and in arrest of judgment, sentenced him to pay a fine of $100, and further adjudged that he had forfeited his office of sheriff, and declared the same vacant, and disqualified him from holding a like office of responsibility and trust in this state for a period of two years from the date of his conviction.The defendant has brought the judgment here for review by a writ of error.

The grounds relied upon for reversal are: (1) The information does not state a crime.(2) No crime or criminal intent proved.(3) The crime, if any, was committed not in Lake county, but in Chaffee county, Colo.(4) The sentence declaring the office vacant was improper in this criminal action.

The last three grounds will not be discussed or considered, for it is entirely clear that the information is fatally defective.

1.The information, in substance, states that the defendant, as sheriff, charged and received of and from Chris Uponovitch $200 in money for omitting to serve a warrant upon him, which warrant is set out in extenso, such service and execution 'being one of the duties appertaining to the office of said Harry Schraeder as sheriff.'

This court has held in a number of cases that where the statute specifies the act or acts constituting the offense, it is sufficient generally, as to such act or acts, to follows the language of the statute.It is equally well settled that where the acts constituting the offense are not described by the statute, or where the proper construction restricts a statute to a narrower application than its general words indicate, an indictment merely in these statutory words is insufficient.In this information there is no averment, indeed there is not even a recital, that the warrant in question was ever given to the defendant by the justice of the peace who issued it, or by any one else, for service, or that it ever came into his possession.It is true that it...