Walker v. People
| Decision Date | 20 April 1896 |
| Parties | WALKER v. PEOPLE. |
| Court | Colorado Supreme Court |
Error to Douglas county court.
Joe Walker was convicted of unlawfully keeping open a tippling house on Sunday, and brings error. Reversed.
Plaintiff in error, Joe Walker, was convicted and sentenced upon information filed without leave of court. In this information he is charged with unlawfully keeping open a tippling house on the first day of the week, commonly called Sunday, etc. The information is signed by the district attorney, by his deputy. Attached to the information is the affidavit of the prosecuting officer, stating that the facts therein are true to the best of his knowledge and belief. Aside from this is the affidavit of one John Watson, who makes oath to the facts as of his own knowledge. This latter affidavit was taken before a notary public. The section of the statute relied upon as authority for filing the information is as follows Act 1893, p. 116, § 3.
Thomas Ward, Jr., for plaintiff in error.
B. L Carr, Atty. Gen., and Calvin E. Reed and George H. Thorne Asst. Atty. Gens., for the People.
HAYT C.J. (after stating the facts).
In the court below a motion was made to quash the information--First, because the same was filed without leave of court; second, upon the claim that no affidavit, as required by law, was filed upon which to base the information. The motion to quash having been overruled, a plea in abatement, raising the same questions, was filed and overruled. Thereafter the same objections were interposed at every stage of the proceedings in the lower court. The defendant, having been convicted and sentenced for the crime charged, brings the case here upon error. No preliminary examination having been had of the defendant for the offense charged, authority for filing the information must be found in section 8 of the act of 1891 as amended in 1893. This act provides 'that the district attorney may, upon affidavit of any person who has knowledge of the commission of an offense * * * and upon being furnished with the names of the witnesses for the prosecution by leave of court first had file an information. * * *' The statute requires as conditions precedent to the filing of an information--First an affidavit of some person who has knowledge of the commission of the offense; second, leave of court. Was there a compliance in this case with the first of these requirements? The contention of plaintiff in error is, first, that the affidavit spoken of must be separate and apart from the information; that attaching it to the information is not a compliance with the statute. This point is mentioned, rather than being seriously urged. We think the statute is sufficiently complied with in this respect where the affidavit, as in this case, in proper form is attached to the information. It is claimed, however, that notaries public in this state are without authority to administer the oath required in criminal prosecutions by information. This contention of counsel finds...
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Committee for Better Health Care for All Colorado Citizens by Schrier v. Meyer
..."An affidavit is an oath reduced to writing and attested by him who has authority to administer the same...." Walker v. People, 22 Colo. 415, 418, 45 P. 388, 389 (1896). Thus, any authorized officer, not necessarily a notary public, may authenticate the affidavit under the constitutional pr......
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Falgout v. People
...requirement in 39--5--1 that the district attorney may proceed by direct information Only with prior leave of the court. In Walker v. People, 22 Colo. 415, 45 P. 388, this Court held that failure to obtain prior leave of the court renders the information fatally defective. In Walker it was ......
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Ausmus v. People
... ... information under consideration we find by an actual ... inspection of the record on file in this court are of similar ... form and of the same purport, substance, and effect as was ... the basic affidavit for the information in the case of Walker ... v. People, 22 Colo. 415, 45 P. 388, and the affidavit was ... there held sufficient and the form approved. Nor do we ... consider that Noble v. People, 23 Colo. 9, 45 P. 376, or the ... language used in Tuttle v. People, 33 Colo. 256, 79 P. 1035, ... 70 L.R.A. 33, in any wise militates ... ...
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State v. Ostmann
...thereon." Held, that an affidavit in proper form, attached to the information, sufficiently complied with the statute.—Walker v. People, 22 Colo. 415, 45 Pac. 388. [b] (Colo. 1896) Where the record shows that the affidavit in verification of an information was filed on the same day as the i......