Smith v. People

• Decision Date: 07 March 1904
• Citation: 75 P. 914,32 Colo. 251
• Parties: SMITH v. PEOPLE.
• Court: Colorado Supreme Court

75 P. 914

32 Colo. 251

SMITH v. PEOPLE.

Supreme Court of Colorado

March 7, 1904

Error to District Court, San Miguel County; Theron Stevens, Judge.

Charles A. Smith was convicted of perjury, and brings error. Reversed.

Gabbert C.J., dissenting.

John H. Murphy and L. E. Kenworthy, for plaintiff in error.

N. C Miller, Atty. Gen., and I. B. Melville, Asst. Atty. Gen., for the People.

STEELE J.

The information charges Charles A. Smith, the defendant below with the crime of perjury. The offense is alleged to have been committed at a trial held on the 6th day of June, 1902 in the 'district court of San Miguel county, Colorado.' Smith was tried for an alleged violation of chapter 65, p. 159, of the Laws of 1901, and was a witness in his own behalf. The law of 1901 prohibits the sale of liquors without a license from the board of county commissioners, and the information charged Smith with the violation of that statute by the sale of liquor to one Albertini. It is charged that Smith willfully and corruptly testified falsely, in response to interrogatories, that to the best of his knowledge there was not in the building occupied by him, during the months of April and May, 1902, any barrels, casks, or bottles containing malt, spirituous, or vinous liquors for sale, and that he was not aware of ever having kept any malt, vinous, or spirituous liquor in the back room of his store building in San Miguel county; that these matters were material to the issue being tried; and that, in so testifying, Smith committed willful and corrupt perjury.

The information charging perjury was filed June 9, 1902. On December 1st Smith withdrew his plea of not guilty, and pleaded guilty. On December 13th the defendant was sentenced to a term in the penitentiary of not less than three and not more than five years. The record contains the following: 'And witnesses being present for the purpose of giving testimony to the court for the court to thereby determine as to the aggravation and mitigation of the offense to which said defendant has plead guilty, and the court thereupon orally stating that all of the facts upon which the charge of perjury in this case was based were within the knowledge of the judge of this court, and that the testimony upon which said charge was based was given by said defendant, in a case tried in this court, at a time when the present presiding judge thereof presided, and which testimony was given within the hearing of said judge of this court, the court thereupon said that it was not necessary to examine as to the aggravation and mitigation of these offenses, and therefore no testimony was introduced.'

The title of the act under which Smith was first prosecuted is as follows: 'An Act prescribing a penalty for the sale of malt, vinous or spirituous liquors in counties outside of incorporated towns and cities, without having a license therefor, making the same unlawful, and repealing all acts in conflict herewith.' Sess. Laws 1901, p. 159, c. 65. The record is brought here, and we are asked to set aside the judgment and sentence because the court did not take testimony concerning the aggravation and mitigation of the offense; because the subject-matter of the statute which was the basis of the original judicial proceeding was not clearly expressed in the title of said statute; because the information sets forth the crime of perjury as having been committed in the 'district court of San Miguel county, Colorado,' which said described court is a court unknown to the Constitution and statutes of Colorado; because the matters concerning which the plaintiff in error was alleged to have sworn falsely were not material to any issue in the proceedings in said information set forth; and because the information does not set forth the name of the clerk by whom the oath was administered to said Smith.

We shall consider at length only the first objection, for the reason that we are of opinion that the statute under which the defendant was first prosecuted is valid, and that the subject-matter thereof is clearly expressed in its title; that the designation of the court in which the perjury is alleged to have been committed as 'the district court of San Miguel county, Colorado,' charged with sufficient certainty before what court the alleged false oath was taken, that being a common description of the district courts in the statutes; and because we are of opinion that it was not necessary to state the name of the 'duly authorized clerk of said court' by whom the oath is alleged to have been administered, and that the testimony alleged to have been given was clearly material to the issue then being tried.

The first objection, that the court erred in passing sentence upon the plea of guilty without examining witnesses as to the aggravation and mitigation of the offense, is more serious and, in our opinion, requires us to remand the defendant for resentence. The statute (section 1463, Mills' Ann. St.) provides that, in all cases where the defendant has pleaded guilty, and the court possesses any discretion as to the extent of the punishment, 'it shall be the duty of the court to examine witnesses as to the aggravation and mitigation of the offense.' Upon a conviction of perjury, section 1270, Mills' Ann. St., provides that the defendant shall be punished by confinement in the penitentiary for a term not less than 1 year nor more than 14 years. The court possessed discretion as to the extent of the punishment, and should have examined witnesses. The statute requiring the examination of witnesses was passed upon by this court in Arrano v. The People, 24 Colo. 233, 49 P. 271, and the court held the provisions of the statute to be mandatory, and that, unless the fact that the witnesses...