Walt v. People

• Decision Date: 06 July 1909
• Citation: 46 Colo. 136,104 P. 89
• Parties: WALT et al. v. PEOPLE.
• Court: Colorado Supreme Court

104 P. 89

46 Colo. 136

WALT et al. v. PEOPLE.

Supreme Court of Colorado

July 6, 1909

Rehearing Denied Oct. 4, 1909.

Error to Larimer County Court; C. V. Benson, Judge.

Homer Walt and others were convicted of keeping a disorderly house and they bring error. Affirmed.

O. N. Hilton, Lyman Porter, and Caesar A. Roberts for plaintiffs in error.

William H. Dickson, Atty. Gen., George D. Talbot, Asst. Atty. Gen J. T. Barnett, Atty. Gen., and James G. Rogers, Asst. Atty Gen., for the People.

WHITE J.

Under section 1323, Mills' Ann. St., the district attorney filed an information against the defendants in the county court of Larimer county charging that they on or about the 4th day of April, 1907, 'did then and there unlawfully keep and maintain a common, ill-governed, and disorderly house, to the encouragement of idleness and drinking and other misbehavior, unlawfully selling therein malt, vinous, and spirituous liquors to divers persons, unlawfully causing and procuring certain and divers persons to come together therein for the purpose of drinking, tippling, and other misbehavior, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the same people of the state of Colorado.' The information was verified by the district attorney upon information and belief, and was supported by the positive affidavit of H. G. McMillin to the effect that the facts stated therein were true, and that the offense charged was committed of his own personal knowledge.

The McCreery-Walt Drug Company, a corporation, occupied a certain building under a lease in the city of Loveland, in which it conducted a general drug store. The plaintiffs in error were the officers of said corporation and had personal charge and supervision of the drug store. The building was divided into three compartments; the front or first occupied by the drug store proper; back of the main room was a storage room, and back of this was another room, with chairs, tables, and a bar, supplied with the usual equipments of such. Over this bar there was habitually sold to the public generally, whisky, beer, and other spirituous, vinous, and intoxicating liquors under the name of 'Chicago,' 'Short and Long,' 'No. 19,' 'No. 20,' and various obscene names. Such liquors were sold by the glass, the pint, and the bottle, and some carried away in large quantities, etc. Usually customers were served by a bartender, but at other times they were served by one or other of the defendants. Numbers of people were assembled there at times, buying and drinking liquors, and all, more or less, under its influence.

Before the trial began a challenge was presented to the array of the panel, because, as alleged, the jurors were not selected in accordance with section 2603 et seq., Mills' Ann. St. A motion to quash the information, on the ground that it stated no offense known to the law, was interposed and overruled. A trial was had to a jury, resulting in a verdict of guilty as charged. Motion for new trial was interposed and overruled, and the defendants were each sentenced to serve 60 days in the county jail. It is to reverse that judgment that this suit is prosecuted here.

The contention that the jury was not selected according to law is not meritorious. The matter involved has often been considered and passed upon by this court. It is held that the statutes relative to the selection of jurors do not make the method there provided exclusive. Mackey v. People, 2 Colo. 16; Giano v. People, 30 Colo. 20, 69 P. 504. Section 2606, Mills' Ann. St., points out how a regular panel of jurors may be secured for the county court, and section 2611, Mills' Ann. St., provides that if jurors shall not be drawn and summoned for the county court as provided in the act, and a jury is required, the court shall, nevertheless, have the power to summon a jury by open venire. It, therefore, appears that the selection of the panel of jurors in the case at bar falls clearly within the provisions of the statutes and the decisions of this court. Section 2611, Mills' Ann. St., supra; Section 1458, Mills' Ann. St.; Bd. Co. Com. v. Brown, 2 Colo.App. 473, 31 P. 525; Imboden v. People, 40 Colo. 142, 153, 156, 90 P. 608.

It is argued that the information is not verified nor supported by the affidavit of some creditable person showing probable cause. Under section 1432b, Mills' Ann. St. Rev. Supp., it is required that an information be subscribed by the district attorney or his deputy as informant, and, where the defendant has not had or waived a preliminary examination, there shall be filed with the information an affidavit of some creditable person verifying the information upon the personal knowledge of affiant that the offense was committed. The basic affidavit verifying the information in question is in the same form and of the same substance and effect as was the affidavit verifying and supporting the information in the case of Walker v. People, 22 Colo. 415, 45 P. 388, and it was there held sufficient. It is unnecessary for the affidavit to recite that affiant is 'a competent witness to testify in the case.' His competency will be presumed until the contrary appears. Besides, the entire matter is fully considered and passed upon in Ausmus and Moon v. People (decided at this term) 105 P. ----. The procedure under consideration constituted a compliance with the requirements of the act authorizing prosecutions by information.

It is next argued that though the information charges, in the language of the statute, the keeping of a disorderly house, it further sets forth the specific acts constituting the disorder, and, having so pleaded, the people are bound thereby, and that such acts do not constitute said offense within the meaning of the law. That a plea which attempts to allege the specific facts constituting the crime must allege sufficient to establish the complete offense, admits of no argument. The rule, however, in no wise affects the information in question. Having charged the offense in the language of the statute, and set forth the specific acts constituting the disorder, the effect thereof was to limit the proof. Under the pleading the people would not be permitted to show that the house was kept and maintained 'to the encouragement of gaming,' nor 'to the encouragement of fornication.' These are not specified in the information. Other elements constituting the offense are, and the proof must be and was, limited to them. The information sufficiently charges the defendants with keeping a common, ill-governed, and disorderly house within the terms of the statute.

It is further urged that the information is duplicitous. We do not consider it vulnerable to this objection. Several specifications of different ways in which the particular law may be violated do not constitute duplicity. Section 1450, Wharton's Criminal Law.

In State v. Williams, 30 N. J. Law, 103 107, it is said: 'The fighting, cursing, gambling, tippling, etc., said to be necessary to make a house a nuisance, are all or most of them crimes and punishable as such. ...