Thornell v. People
| Decision Date | 27 April 1888 |
| Citation | 17 P. 904,11 Colo. 305 |
| Parties | THORNELL v. PEOPLE. |
| Court | Colorado Supreme Court |
Commissioners' decision. Error to district court, El Paso county.
William R. Thornell was indicted for embezzling the funds of the Colorado Springs Athletic Association, of which he was treasurer. There was a conviction, and defendant brings error.
E. O. Wolcott, for plaintiff in error.
Alvin Marsh, Atty. Gen., C. A. Wilkin Dist. Atty., and F. H. Thomas, for defendant in error.
DE FRANCE, C.
The plaintiff in error, Thornell, was tried in the district court of El Paso county, at the April term, 1885, of said court, on a charge of embezzlement, and was convicted and sentenced to imprisonment in the state penitentiary for the period of one year. At the close of the testimony for the people, the plaintiff in error moved the court to direct the jury to return a verdict of acquittal, on the ground that no case had been made against him; but the court refused so to do. He afterwards moved for a new trial; and, this motion being denied, then moved in arrest of judgment, which motion was also denied. The record in this case is very imperfect. A certified copy of a bill of indictment against William R Thornell is annexed to the record. It may, perhaps, be presumed to be the same upon which conviction was had, but it should have been embodied in the record. The indorsements thereon, if any, are not shown, and we have no knowledge as to whether the indictment was indorsed, 'A true-bill,' and signed by the foreman of the grand jury which found the same or not. What effect should be given to such defects we need not say, as there are other errors upon which the case must be reversed.
The record fails to show that the indictment was returned into court while in session. 'It is error to put a defendant on trial on an indictment, unless it is returned into open court, and the only evidence of that fact must be found in the record of the case.' Gardner v. People, 20 Ill. 430, and cases there cited; Sattler v. People, 59 Ill 68; Bish. Crim. Proc. (3d Ed.) § 1355, and authorities cited in note 1.
We find, in examining the evidence, that no testimony was given as to where or in what county the offense was committed. For aught that appears in the record, the offense may have been committed in another state, if committed at all. This error is fatal.
While the first count of the indictment, upon which the conviction was had,...
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McFetridge v. State
...529, 26 F. 425, 39 Mont. 506, 104 P. 513. The Court will reverse if the evidence is insufficient; People v. Orin, 188 P. 1114; Thornell v. People, 11 Colo. 305; v. State, 41 So. 176. In larceny, the Corpus Delicti has two elements, 1st, that the property was lost by the owner and, 2nd, that......
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