Wilder v. People

• Decision Date: 29 April 1929
• Docket Number: 12113.
• Citation: 86 Colo. 35,278 P. 594
• Parties: WILDER v. PEOPLE.
• Court: Colorado Supreme Court

278 P. 594

86 Colo. 35

WILDER v. PEOPLE.

No. 12113.

Supreme Court of Colorado, En Banc.

April 29, 1929

Rehearing Denied June 10, 1929.

Error to District Court, Arapahoe County; S.W. Johnson, Judge.

Clifton H. Wilder was convicted of possessing, operating, and owning a still for the manufacture of intoxicating liquor, and he brings error.

Affirmed.

C. F. Clay and Horace N. Hawkins, both of Denver for plaintiff in error.

William L. Boatraight, Atty. Gen., and William W. Gaunt, Asst. Atty Gen., for the People.

BURKE J.

A joint information of three counts was filed against plaintiff in error (hereinafter referred to as defendant), and his stepson John S. Eckman, charging them with violating the liquor law. The first count charged possession, the second operation, and the third ownership, of a still for the manufacture of intoxicating liquor. By agreement defendant was separately tried. On a verdict of guilty on each count he was sentenced on each to a term of four to five years in the penitentiary the sentences to run concurrently. To review that judgment he brings error.

We are advised by the assignment that the 304 pages of this abstract disclose 131 errors. Anent this situation we again refer to the comments of Judge Adams and Justice Miller, repeated by us with emphasis in Goodrich et al. v. Union Oil Co. et al. (Colo.) 274 P. 935 (No. 11996, decided here December 31, 1928).

In the instant case, however, we have been spared much futile toil by an application for supersedeas and a stipulation of counsel. The application was presented on printed briefs and was allowed. Later a printed abstract was filed, and it was stipulated that the case should thus stand finally submitted. We shall therefore not look beyond the alleged errors argued in defendant's supersedeas brief, and these we will take up in chronological order rather than in the order of their argument. They relate to (1) change of venue; (2) rulings on evidence; (3) statements made by the district attorney; (4) statements made by the trial judge; (5) instructions; and (6) the fairness of the trial as a whole.

On the forenoon of December 17, 1927, the sheriff and others raided defendant's ranch in Arapahoe county. On a five-acre tract originally a part of the quarter section now owned by defendant, they found an underground stillhouse and therein two stills bearing unmistakable evidence of recent operation. The ranchhouse itself (where defendant and his stepson lived) was distant from this tract about one-quarter of a mile, and near it was a cattle yard. From the stillhouse to the cattle yard some one had recently walked in the new fallen snow. Mash covered article of clothing were found in Eckman's room and empty whisky kegs, pressure tanks, charcoal, and sacks of sugar in the granary and outhouses. One of these outhouses bore evidences of recent occupancy, and scribbled on its walls was the record of the operation of a still. The stillhouse obtained its water supply through a pipe line running to defendant's cattle yard. Defendant testified in his own behalf and admitted that he had long been cognizant of the illegal manufacture of intoxicating liquor on the premises above mentioned and of the source of the water supply therefor. He protested his innocence of any voluntary connection with, or acquiescence in, that crime, and in explanation of this anomalous situation told the jury a story which may be thus briefly summarized:

In 1923 the quarter section involved belonged to Mrs. Ethel Glenn Eckman, who had received her deed under the name 'Glenn Eckman.' There was a deed of trust outstanding against this property to secure an indebtedness then due. Mrs. Eckman borrowed of defendant the money to discharge this debt and as security therefor, and under the name of 'Glenn Eckman,' executed and delivered to defendant a warranty deed for the entire tract, which was not to be recorded unless necessary. The next year Mrs. Eckman borrowed more money of defendant, giving a new note for the full amount under the same security. A year later defendant began to farm the place on shares and live at the ranchhouse. This arrangement continued until about the first of September, 1927. The preceding fall a stranger, giving the name of Lester Z. Johnston, appeared at the ranchhouse and bought of Mrs. Eckman the five-acre tract, on which the stillhouse was later found, for $100 an acre, plus $250 for the use of water to be drawn through the pipe line above mentioned, defendant orally waiving his mortgage thereon. Johnston paid $100 in cash and a written contract was entered into, by the terms of which he was to receive his deed when he paid the balance. He said he was buying this land upon which to operate a muskrat farm. Thereupon Johnston departed. He returned about April 1, 1927, completed his contract, and obtained his deed. Early in May following, defendant, after some weeks absence, returned to the ranch and visited the Johnston tract. Hearing the roar of gasoline burners, and having been for four years chief of the state constabulary charged with the duty of detecting and bringing to justice violators of the liquor law, defendant knew he was in the vicinity of a still. He soon found the trapdoor vicinity of a still. He soon found the trapdoor suddenly appeared, armed, and with many oaths and repeated threats exacted from defendant a promise of silence, and, following him to the house, in the same manner exacted a like promise from Mrs. Eckman and her son. In the latter part of that month defendant and Mrs. Eckman were married, and September 3, following, the wife was taken to a Denver hospital. Before going they together inspected her deed to defendant. The description therein read: 'The Northwest quarter (N W 4) of Section thirty-two (32) Township five (5) South, Range sixty-seven (67) West.' In her presence and with her consent Wilder added thereto the following: 'Excepting and reserving from the grant five acres more or less, being 272 1/4 feet easterly and westerly by 800 feet northerly and southerly along the creek on said land'--the 'exception' being a brief description of the property conveyed to Johnston. Thereupon the deed was redelivered to defendant as an absolute conveyance. The next day the wife died. October 13th of that year defendant's deed (now approximately four years old) was recorded. December 13th and 14th defendant thrashed and prior thereto had cleaned his granary for the storage of wheat. (It was under the wheat here stored at this thrashing that some of the illicit paraphernalia hereinbefore described was found.) December 15th two of his employés left and he hired one 'Tony.' When the raiders arrived on the 17th, Tony, was there, but shortly disappeared, and has not since been heard of. In addition to the foregoing, defendant offered to testify that, between the time of his first discovery of this Johnston still and the time of the raid, he had thrice conferred with an old friend, Judge George W. Allen (an aged lawyer and jurist of this state, then retired from active practice, and who died prior to the trial of this cause), by whom he was advised that no legal obligation rested upon him to violate the command which Johnston had enforced with a threat against his life, and with whom it was finally arranged that Judge Allen, without involving either himself or defendant, should take steps to cause the federal authorities to be informed of Johnston's illegal operations. This offer was excluded.

Of the exhibits referred to the original deed of the premises in question from one Richard W. Epley to Glenn Eckman and the original deed from Glenn Eckman to defendant are in evidence. The latter, save the printed portion, is entirely in the handwriting of defendant. A certified copy of the deed from Mrs. Eckman to Johnston is in evidence. It is signed 'E. G. Eckman,' is dated January 4, 1927, and filed for record April 2d of that year. The alleged contract between Mrs. Eckman and Johnston rests entirely upon defendant's testimony. John S. Eckman was not called.

1. The motion for a change of venue was signed by counsel for defendant and verified by defendant himself. It charged prejudice of the citizens and undue influence of the prosecution, and set forth in detail the alleged facts upon which those charges were based. It was supported by three affidavits which briefly recited the prejudice, but said nothing about undue influence and omitted all reference to the specific facts. Three counter affidavits were filed, which simply denied the prejudice and asserted that defendant could have a fair trial. This was the entire showing. The motion was overruled. The granting or refusing of such a change rests generally in the sound discretion of the trial court. Power v. People, 17 Colo. 178, 28 P. 1121.

The particular objection here made is that the state did not deny the specific facts. Such denial was not indispensable. Those 'facts' related principally to newspaper articles and interviews. They were material only as an evidence of prejudice. Assuming their existence, we are here concerned only with their effect. Though not denied, their alleged effect, i. e., resulting prejudice, was. The court found 'no prejudice.' That finding is presumed correct unless the record discloses the contrary. Andrews v. People, 33 Colo. 193, 79 P. 1031, 108 Am.St.Rep. 76.

If the alleged prejudice existed, it should appear from the examination of jurors. Giacomozzi v. People, 72 Colo. 13, 209 P. 798. If many jurors had disclosed a bias against defendant, and hence been excused for cause, if that bias had in numerous instances been traced to adverse newspaper reports, or to the acquaintance, activity, and influence of those interested in the prosecution, and if ...