White v. People
| Decision Date | 05 April 1926 |
| Docket Number | 11201. |
| Citation | 245 P. 349,79 Colo. 261 |
| Parties | WHITE et al. v. PEOPLE. |
| Court | Colorado Supreme Court |
Error to District Court, Garfield County; John T. Shumate, Judge.
R. A White and another were convicted of conspiracy and of obtaining money by false pretenses, and they bring error.
Reversed and new trial granted.
William F. Noonan, of Glenwood Springs, and Horace N. Hawkins and William A. Bryans, both of Denver, for plaintiffs in error.
William L. Boatright, Atty. Gen., and Jean S. Breitenstein, Asst Atty. Gen., for the People.
Plaintiffs in error were defendants in the court below, and will be so referred to here. The defendants were convicted on each of four counts in an information charging them with conspiracy and obtaining money by false pretenses, and were sentenced to imprisonment for a term of not less than 18 months, nor more than 2 years on each count; the sentences to run concurrently. Defendants bring the case here for review.
The record discloses that in March, 1924, an information was filed against the defendants containing four counts. The first, second, and fourth counts charged that defendants had entered into a conspiracy to cheat and defraud the city of Glenwood Springs. The third count charged that, by means of certain false and fraudulent pretenses, defendants obtained from the city of Glenwood Springs the sum of at least $4,000. In April, following, defendants were arraigned upon this information and entered a plea of not guilty.
The record contains 158 assignments of error, but we think the following statement substantially includes and covers all of of them: After the arraignment and plea, defendant Miller filed his motion for a separate trial, which was heard and denied in July of that year. The case was finally set for trial for November 19, 1924. On the latter date the district attorney moved the court for leave to amend the information in many particulars, some of which were as to matters of substance, and others as to form. This motion was granted over the objection of defendants. The record shows that the district attorney then presented an information as amended, but without verification. By reason of the amendments, and especially because some of them were amendments as to substance, the court stated that if defendants desired a continuance of the case it would be granted in order to enable them to meet the amendments, and they were given until the following day to determine whether or not they should ask for further time. On that day they appeared in court and announced themselves ready for trial. The defendants were not rearraigned, and no plea was entered by them to the information as amended. At the conclusion of the evidence, defendants moved for a directed verdict, which was overruled. Defendants then presented certain requests for instructions, among them one numbered 21, which were refused. The court, on its own motion, gave 19 instructions, but in none of them did the court tell the jury what the information contained, or what each count in the information contained, or what the issues were, nor were they told what plea was entered by defendants to the information. No instruction was given as to the presumption of innocence. During the trial certain evidence was admitted and rejected which the defendants claim was error; also, that on one occasion during the trial the court rebuked counsel, which they claim was error. Motions for new trial and in arrest of judgment were overruled. The defendants complain of the foregoing matters, occurring after the plea to the original information, and contend that each of the rulings made against them constitutes reversible error.
1. There was no error in denying the motion for a severance. This question has been definitely settled and disposed of adversely to defendants' contention, and we are not disposed to reconsider it. Robinson v. People, 232 P. 672, 76 Colo. 416.
2. It is true that permission was given to amend the information, as to matters of substance, as well as to matters of form; also, it is true that there was no verification to the amended information. Counsel say in their brief that no amended information was presented, and no amendments made to the information, until after the trial, but the record does not seem to bear out this statement. However, whether this be correct or not is immaterial. Their announcement that they were ready for trial, after fully considering the matter of the amendments, amounts to a waiver of whatever rights they may have had in this respect. They made no objection to proceeding with the trial either because of the amendments, or because an amended information was not filed; neither did they object to proceeding upon an unverified amended information. They are therefore not in a position to complain as to those matters.
3. It is settled law in this jurisdiction that a party cannot be tried, convicted, and sentenced for a criminal offense without arraignment and plea. People v. Lawton, 158 P. 1099, 61 Colo. 566. But that has no application to the facts in the present case. Here defendants had been arraigned and entered a plea to the original information. Whether they should have been rearraigned, and required to plead to those counts in the information which had been amended as to matters of substance, we need not determine. The amendment to the fourth count was clearly as to form, and where such amendment is made no rearraignment and plea is required. Collins v. People, 195 P. 525, 69 Colo. 353, 355. A conviction on the fourth count having resulted, and the sentences running concurrently, the question as to whether defendants should have been rearraigned, on the other counts of the information, becomes immaterial. Quinn v. People, 75 P. 396, 32 Colo. 135; Imboden v. People, 90 P. 608, 40 Colo. 142, 161; Shepherd v. People, 225 P. 221, 75 Colo. 251, 254.
4. The language used by the court to one of defendant's counsel, which defendants claim was a severe and unjustified rebuke, does not constitute error. Almond v. People, 135 P. 783, 55 Colo. 425, 430.
5. Complaint is made that the court erred in refusing to give defendants' instruction No. 21, which is as follows:
They argue that the instruction was a statement...
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