Stone v. People
| Decision Date | 06 February 1922 |
| Docket Number | 10016. |
| Citation | 71 Colo. 162,204 P. 897 |
| Court | Colorado Supreme Court |
| Parties | STONE 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.
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.
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.
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:
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.
Baker was an officer who arrested defendants. Doughty had an experience with them...
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Kolkman v. People
... ... 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 ... ...
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Roll v. People
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Abshier v. People, 12558.
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Carlson v. People, 13034.
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