Stone v. People

Decision Date06 February 1922
Docket Number10016.
Citation71 Colo. 162,204 P. 897
CourtColorado Supreme Court
PartiesSTONE et al. v. PEOPLE.

Rehearing Denied March 6, 1922.

Error to District Court, Jefferson County; S.W. Johnson, Judge.

Frank Stone and Walter Woeber were convicted of highway robbery and they bring error.

Affirmed.

George B. Campbell and William A. Bryans, both of Denver, for plaintiffs in error.

Victor E. Keyes, Atty. Gen., and Charles R. Conlee, Asst. Atty Gen., for the People.

BURKE J.

Plaintiffs in error (hereinafter referred to as defendants) were convicted of highway robbery and sentenced to a term of five to six years in the penitentiary. To review that judgment they sue out this writ.

Of the 19 errors alleged the following propositions are presented in the briefs: (1) The denial of Woeber's motion for a continuance. (2) That the crime, if any, was not committed in Jefferson county. (3) The appointment by the court of A. D. Quaintance to represent the people in the trial. (4) The overruling of Stone's motion for a severance. (5) The indorsement on the information of the names of two witnesses at the beginning of the trial. (6) That the verdict is not supported by the evidence.

1. When the case was called for trial defendant Stone was represented by Attorney Bryans. Defendant Woeber was asked by the court if he had counsel. He said he had, one Waldron, who could not be present because he was trying cases in the city of Denver. The judge replied that Waldron had said that he was not attorney for the defendant. Woeber informed the court that he had seen Waldron that morning, but that he (Woeber) could handle the case himself, saying, 'I think I could go to trial without an attorney.' Thereupon the court appointed Mr. George B. Campbell to represent this defendant. Woeber first objected to going to trial under the circumstances. The court reminded him that when the cause was set and he and Attorney Waldron present they were informed that the cause must be tried; that a jury could not be kept longer; that Waldron had been notified; and that he had not asked a continuance.

'Mr. Woeber: Wouldn't you reconsider and appoint Mr. Bryans as my attorney?
'The Court: Sure if Mr. Bryans will serve.
'Mr. Woeber: Is that all right with you Mr. Bryans to represent me?
'Mr. Bryans: I have no objection to Mr. Campbell assisting in this case; I would be delighted to have him. I have known this young man a long time * * * I would try to protect his interests. * * *
'The Court: If Mr. Bryans' client Mr. Stone should in any way be interested opposite to you [Woeber] I would not want him to represent but one of you. I appointed Mr. Campbell so as to look after you especially.'

The record discloses nothing contrary to the foregoing. No further objections appeared, and no additional showing was made. No exceptions were saved. That this matter rested in the sound discretion of the court, and that that discretion was not abused, seems clear. Roberts v. People, 9 Colo. 458, 465, 13 P. 630; Byers v. McPhee et al., 4 Colo. 204, 207.

2. The transaction in question occurred on the fenced public highway dividing the counties of Jefferson and Arapahoe. It is contended that the center of this highway is the county line, and that the acts here under investigation were performed on the Arapahoe side thereof; hence the cause should have been tried in Arapahoe county. Section 1974, R. S. 1908, provides:

'When an offense shall be committed on a county line, the trial may be in either county divided by such line.'

If the word 'line' here used is to be given its geometrical definition, if it is merely the shortest distance between two points and has neithe breadth nor thickness, defendants' argument has merit. Our Constitution merely provides that the accused shall be entitled to trial 'by an impartial jury of the county or district in which the offense is alleged to have been committed.' Article 2, § 16, Colo. Const. It is inconceivable that the Legislature, in the enactment of section 1974, supra, had in mind a geometrical 'line,' or were indulging in any such hairsplitting in the passage of the statute. It merely took cognizance of the fact that in most cases these county lines are highways, and that numerous offenses similar to the one charged here are committed thereon in every jurisdiction. That interpretation is a reasonable one, is consistent with the constitutional provision above cited, and involves no prejudice to the defendants. We therefore unhesitatingly adopt it.

3. When this cause came on for trial the district attorney, who had filed the information, was not present, and the court appointed Mr. Quaintance to prosecute. Mr. Bryans objected orally because no showing had been made justifying the appointment. The court made an oral finding that----

'The district attorney is not performing the duties of his office, and he is absent from the court, and that there is no one, no official of his office, who is here and able to perform the duties of the office of the district attorney.'
'In case the district attorney shall fail to attend upon the criminal court at any term thereof, or part of any term, such court shall appoint some competent attorney at law as special district attorney, who shall in the meantime perform the services of the district attorney.' Section 1577, R. S. 1908.

The statutory condition precedent to such an appointment appears to have existed and been found by the court, and the record discloses nothing to rebut the presumption of the correctness of that finding; hence the legality of the appointment. Roberts v. People, 11 Colo. 213, 17 P. 637.

Section 1981, R. S. 1908, reads:

'When two or more defendants are jointly indicted for any felony, any defendant against whom there is evidence, which does not relate to the reputation of such defendant, and which would be material and admissible as to such defendant, if tried separately, but which would be inadmissible as to any other of said joint defendants if tried alone such defendant against whom evidence as aforesaid, is material and admissible, shall be tried separately. In all other cases, defendants jointly indicted or prosecuted, shall be tried separately or jointly in the discretion of the court.'

Defendant Stone filed a motion for severance. His affidavit recited:

'That there is evidence material to the defense of this defendant which does not relate to the reputation of this defendant, which is admissible as to the defendant, if he be tried separately, but which is inadmissible as to any other defendant if tried alone.'

Thus far the affidavit in no respect supports the motion. Moore v. People, 31 Colo. 336, 344, 73 P. 30.

The affidavit further recites:

'That there is material evidence not relating to the reputation of any other defendant which is admissible as against such defendant, if tried alone, but if admitted in a joint trial will be prejudicial to this defendant because such evidence would be inadmissible as against this defendant if tried alone.'

If this portion of the affidavit is good under the statute (a question which we do not decide) the record discloses no further showing as to what this evidence was. No such evidence developed in the trial. No objection was made on behalf of either defendant to any evidence which could by any possibility be considered as admissible against one defendant and inadmissible against the other.

5. Before the jury was sworn to try the case the people asked leave to inforse upon the information the names of the witnesses Ulysses H. Baker and W. P. Doughty, the special prosecutor saying:

'I did not know anything about these.'

Defendants objected to this indorsement.

'Mr. Bryans: We are taken by surprise, and if the court enters an order indorsing either or both of these names on the information we shall insist upon and respectfully request a continuance of the trial of this case.
'Mr. Quaintance: If it is anything that would seek to take them by surprise, we won't indorse them.
'The Court: You may have leave to indorse them.
'Mr. Bryans: To the ruling of the court we reserve an exception.'

Baker was an officer who arrested defendants. Doughty had an experience with them...

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13 cases
  • Kolkman v. People
    • United States
    • Colorado Supreme Court
    • May 11, 1931
    ... ... the land and the statutes of the State of Colorado will be ... We have ... held that, unless the bill of exceptions discloses the ... admission of prejudicial evidence, no error is committed in ... denying a motion for a severance. Stone v. People, 71 Colo ... 162, 167, 204 P. 897; Sarno v. People, 74 Colo. 528, 531, 223 ... We have ... also held that the motion for a severance, or the affidavit ... supporting the same, must set forth the incompetent and ... prejudicial evidence so as to advise the trial court in ... ...
  • Roll v. People
    • United States
    • Colorado Supreme Court
    • June 6, 1955
    ...to be endorsed and to testify. If authority is deemed essential, we refer to Baker v. People, 72 Colo. 207, 210 P. 323; Stone v. People, 71 Colo. 162, 204 P. 897; Kloberdanz v. People, 95 Colo. 30, 31 P.2d 1111; Grandbouche v. People, 104 Colo. 175, 89 P.2d 577, 580. The Statute governing s......
  • Abshier v. People, 12558.
    • United States
    • Colorado Supreme Court
    • June 9, 1930
    ... ... the court, and its action will not be set aside, unless the ... action was plainly erroneous and unjust. Davis v. People, 77 ... Colo. 546, 238 P. 25; Griffin v. People, 77 Colo. 422, 231 P ... 1113; Daugherty v. People, 78 Colo. 43, 45, 239 P. 14; Stone ... v. People, 71 Colo. 162, 204 P. 897; Epley v. People, 51 ... Colo. 501, 503, 119 P. 153; Byers v. McPhee, 4 Colo. 204 ... [289 P. 1086] ... 3. It ... is stated in the Epley Case, supra, that the gravity of the ... offense charged may be an element of determination in ... ...
  • Carlson v. People, 13034.
    • United States
    • Colorado Supreme Court
    • October 3, 1932
    ... ... I think ... the court's opinion answers itself. The general rule is ... that the disposition of a motion for a continuance rests ... [15 P.2d 630] ... in the discretion of the trial court and reversal follows ... only a clear abuse thereof. Stone v. People, 71 ... Colo. 162, 204 P. 897; Davis v. People, 77 Colo ... 546, 238 P. 25; Doll v. Stewart, 30 Colo. 320, 328, ... 70 P. 326. Continuances on the ground of absent witnesses are ... often applied for, and sometimes granted, when the witnesses ... thereafter either fail to ... ...
  • Request a trial to view additional results
1 books & journal articles
  • Section 16 CRIMINAL PROSECUTIONS - RIGHTS OF DEFENDANT.
    • United States
    • Colorado Bar Association Colorado Rules and C.R.S. of Evidence Annotated (CBA)
    • Invalid date
    ...hearing, a remand back for the hearing is the appropriate remedy. People v. Clark, 2015 COA 44, 370 P.3d 197. Applied in Stone v. People, 71 Colo. 162, 204 P. 897 (1922); Dikeou v. Food Distribs. Ass'n, 107 Colo. 38, 108 P.2d 529 (1940); People v. Benney, 757 P.2d 1078 (Colo. App. 1987).B. ......

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