White v. People

• Decision Date: 22 June 1896
• Parties: WHITE v. PEOPLE.
• Court: Colorado Court of Appeals

45 P. 539

8 Colo.App. 289

WHITE v. PEOPLE.

Court of Appeals of Colorado

June 22, 1896

Error to district court, Pueblo county.

James L. White was convicted of larceny, and brings error. Reversed.

Mitchell & Kriger and Patrick & Essex, for plaintiff in error.

Byron L. Carr, Atty. Gen., and E.P. Secor (Calvin E. Reed, of counsel), for defendant in error.

THOMSON, J.

The transcript filed in this case consists of detached portions of the record, to which is appended the following certificate: "State of Colorado, County of Pueblo--ss I, George Seavor, clerk of the district court of the Tenth judicial district of the state of Colorado, in and for Pueblo county, do hereby certify that the above and foregoing are true, perfect, and complete copies of the original information, part of the instructions, the verdict of the jury, and the sentence of the court in a certain cause recently decided in the said district court, in which the people of the state of Colorado was plaintiff, and James L White was defendant, as appears from the files and records of my office. Witness my hand and the seal of our said district court at Pueblo, in said county, this ______ day of November A.D.1894. Geo. Seavor, Clerk, By H.F. Sloane, Deputy. [ Seal.]" The information consists of three counts. The first charges the defendant with the larceny, on the 1st day of March, 1893, of two head of neat cattle, the property of Emanuel C. Tolle; the second charges the larceny by the defendant, on the 20th day of May, 1893, of eight head of neat cattle, the property of Emanuel C. Tolle; and the third charges the larceny by the defendant, on the 3d day of July 1893, of eight head of neat cattle, the property of Emanuel C. Tolle. The information was verified by the district attorney upon information and belief.

The information is objected to because it was verified by the district attorney upon information and belief, and because, as counsel allege, it was not based upon the affidavit of some credible person having knowledge of the commission of the offense. The law in force when this information was filed, and by the provisions of which it was governed in matters pertaining to its form, was the act of April 3, 1893. Sess.Laws 1893, p. 116. The first section provides that the name of the district attorney shall be subscribed to all informations, by himself or his deputy. This section is amendatory of section 2 of the act of April 14, 1891, which contained the following words: "All informations shall be verified by the oath of the district attorney, or his deputy, or by the oath of some person competent to testify as a witness in the case; the verification by the district attorney or his deputy may be upon information and belief." These words are omitted from the amendatory section, so that the information which it provides for is complete when the name of the district attorney is subscribed to it, by himself or his deputy.

Verification of this information, in any form, by the district attorney or his deputy, was therefore unnecessary. Section 1 of the act of 1893, however, concludes as follows: "In all cases in which the defendant has not had or waived a preliminary examination there shall be filed with the information the affidavit of some credible person verifying the information upon the personal knowledge of affiant that the offense was committed." The foregoing provision must be considered in connection with the third section of the same act, which is amendatory of section 8 of the act of 1891, and which reads as follows: "An information may be filed against any person for any offense when such person has had a preliminary examination as provided by law before a justice of the peace, or other examining magistrate or officer, and has been bound over to appear at the court having jurisdiction, or shall have waived his right to such examination; such information shall set forth the crime committed according to the facts. But if a preliminary examination has not been had, or when upon such examination the accused has been discharged, or when the affidavit or complaint upon which the examination has been held has not been delivered to the clerk of the proper court, the district attorney may, upon affidavit of any person who has knowledge of the commission of an offense, and who is a competent witness to testify in the case, setting forth the offense and the name of the person or persons charged with the commission thereof, upon being furnished with the names of the witnesses for the prosecution, by leave of court first had, file an information, and process shall forthwith issue thereon." It seems plain, from the statute we are considering, that no verification of any kind need be attached to the information. Where a verification is necessary at all, it must be contained in the independent affidavit of some credible person having knowledge of the commission of the offense, and who is a competent witness to testify in the case. This affidavit must be filed with the information. If a preliminary examination has not been had or waived, or if, upon the examination, the accused has been discharged, or if the affidavit or complaint on which it has been held has not been delivered to the clerk of the proper court, then the affidavit is necessary; and upon it, by leave of the court first had, the information may be filed. This information was verified by the district attorney in the form allowed by the act of 1891; but as, by the law under which it was filed, no verification was necessary, its verification did neither good nor harm, and had no effect upon the information itself. However, although the verification was superfluous to give the information validity, the existence of some one of the statutory precedent conditions was indispensable. Now, the full record is not here. The transcript does not contain it, or purport to contain it, and what is here shows nothing inconsistent with a supposition that the information was filed in full compliance with the requirements and provisions of the statute. The presumptions are always in favor of the regularity of the proceedings of courts in matters of which they have jurisdiction, and, without any showing to the contrary, we must presume that the statute was complied with, and that the information was lawfully filed.

The principal objection made to the information, however, is that it sets forth three separate and distinct offenses. It is not claimed, nor can it be, that any one of the counts is bad, or does not charge with sufficient fullness the commission of a felony; but it is insisted that independent offenses, involving transactions entirely distinct and unconnected, cannot be joined in the same indictment or information. It does not appear, from the partial record which the defendant has seen fit to lay before us, that any objection of any nature was made to the information, or to the proceedings in the trial court; and it must therefore be presumed that none was made, and that the defendant voluntarily submitted to trial upon the information as it was framed. It is therefore to be determined whether notwithstanding the failure to object, the conviction which was had upon the combined counts was legal. The authorities are practically unanimous that it is improper to include distinct offenses in the same indictment, and that, either in the case of duplicity or of misjoinder of counts, if objection is made in apt time, the court will in the one case quash the indictment, and in the other compel the prosecutor to elect on which count he will proceed; but that neither duplicity nor misjoinder is a ground for arrest of judgment. Whart.Cr.Pl. §§ 285, 290, 760; Archb.Cr.Pl. 59; Young v. Rex, 3 Term R. 106; State v. Hutchings, 24 S.C. 142; Com. v. Gillespie, 7 Serg. & R. 469; People v. McKinney, 10 Mich. 54. It may not appear upon the face of the indictment whether the offenses charged are or are not distinct. The same crime may be charged as having been committed at different times, or the language of the indictment may be such that it appears to charge separate offenses; but the several counts may nevertheless relate to the same transaction, and it may therefore be impossible to determine, before the evidence is in, whether the prisoner is being prosecuted for one offense, or for several unconnected offenses, so that a motion before trial might properly be disallowed. But, whenever it does appear that different transactions are combined, the objection is in order. The motion is said to be addressed to the discretion of the court, but the duty of the court is to so exercise its discretion that the prisoner shall not be prejudiced in his defense, and that his compulsory attitude before the jury shall not be such as to give the prosecution an undue advantage over him. The prisoner relies, and has a right to rely, upon the court, to see that he has a fair trial. A man who is called upon to meet a criminal accusation, and whose liberty or life is at stake, occupies a position very different from that of a party to a civil suit; and a case is easily conceivable where it would be the duty of the court to interfere in his behalf of its own motion,...