Young v. People

• Decision Date: 03 March 1913
• Citation: 54 Colo. 293,130 P. 1011
• Parties: YOUNG v. PEOPLE.
• Court: Colorado Supreme Court

130 P. 1011

54 Colo. 293

YOUNG v. PEOPLE.

Supreme Court of Colorado, En Banc.

March 3, 1913

Error to District Court, Montrose County; Sprigg Shackleford Judge.

Henry Young was convicted of murder in the second degree, and he brings error. Affirmed.

T. J. Black, of Montrose, and O. N. Hilton and Caesar A. Roberts, both of Denver, for plaintiff in error.

Benjamin Griffith, Atty. Gen., and Philip W. Mothersill, Asst. Atty Gen., for the People.

BAILEY, J.

This cause has been in this court once before from a judgment on a verdict of conviction of murder in the second degree, which was reversed solely on a question of law, in that it was there held that the trial court failed to properly instruct the jury upon the matter of self-defense, on which reliance was had for acquittal. Young v. People, 47 Colo. 352, 107 P 274. Upon a new trial the defendant was again convicted of murder in the same degree, and brings the case here a second time for review, alleging numerous errors. On this review the defendant raises no question of the sufficiency of the testimony to support the verdict; indeed there is no room for such claim on any reasonable basis, as the testimony is ample to support it, as it would have been had the verdict been one of murder in the first degree. The errors relied upon go mainly to questions of procedure, and relate particularly to change of venue, former jeopardy, and objections to instructions given and refused.

On October 24th, 1910, the day before the trial was to begin according to a previous setting, counsel for the defendant filed a motion to change the venue on the ground of bias and prejudice of the judge. This motion was supported by two affidavits, identical in subject-matter and verified, respectively, by the two record attorneys of the defendant. The motion was based specifically, as shown by the affidavits, on section 4613 of 2 Mills' Annotated Statutes, and, omitting formal parts, is as follows:

'Comes now the defendant Henry Young and presents this his motion and moves the court to change the venue of this cause to some other court of competent jurisdiction in this county or some other county, or notify and request the judge of some other court, having jurisdiction of a like offense to try the said cause, because the said presiding judge the Hon. Sprigg Shackleford is so biased and prejudiced against this defendant that he cannot have a fair and impartial trial of his said cause before said presiding judge and in support of his said motion tenders herewith the affidavit of two credible persons not related to this defendant.'

One of the affidavits was by O. N. Hilton, the other by T. J. Black, precisely alike except the name of the affiant. The Hilton affidavit follows:

'O. N. Hilton being duly sworn says on oath, that he is a citizen of the state of Colorado and has been such citizen for more than 20 years past; that the defendant above named is on trial for a felony, being a criminal cause now pending in the district court of said county, before the Hon. Sprigg Shackleford, the presiding judge thereof; that it is the belief of affiant that the said defendant, Henry Young, cannot have a fair and impartial trial before the said presiding judge, the Hon. Sprigg Shackleford, because of the prejudice and bias of the said judge against the said defendant; that this affiant is not in any manner related to the said defendant Henry Young and makes this affidavit in accordance with section 4613 of Mills' Annotated Statutes of Colorado to show the prejudice of said judge against the said defendant Henry Young.' Duly sworn and subscribed.

These affidavits comprise the entire showing to support the motion, which was signed by the attorneys only. Under the statute this application is insufficient, not only in form, but likewise in substance. The statute provides, among other things, that:

'Every application for a change of venue shall be by petition, verified by the affidavit of the defendant,' etc.

It is at once apparent that the application does not at all comply with the statute. It is not only not signed by the defendant, but it is unverified. Verification by the defendant is a substantial requirement. By this application no sworn complaint whatever against the trial judge was presented. In the absence of a verified charge by the defendant, in substantial conformity with the statute, the application is fatally defective. Furthermore, the section of the statute on which the application is specifically based provides:

'Third. When the judge is in any wise interested or prejudiced, or shall have been of counsel in the cause, such prejudice of the judge must be shown by the affidavit of at least two credible persons not related to the defendant.'

How can it be fairly said that the prejudice of the judge has been shown when the only allegation is the bare statement of a belief that the defendant cannot have a fair and impartial trial, because of the prejudice and bias against him of the presiding judge? There is no showing of fact which discloses that any such prejudice or bias actually exists. The mere expression of a belief that the judge would not give the defendant a fair and impartial trial, without the statement of a single fact upon which such belief is based, is in no sense a compliance with the requirements of the statute, that the prejudice of the judge must be shown. It would be a travesty upon justice, and in direct conflict with sound common sense to permit such a showing to effect a change of venue in a criminal cause under such a statute. It has been the policy of this state from the earliest times to require the disclosure of sworn facts showing the prejudice of the judge, and such facts must be sufficient to require the change. Under early statutes upon this subject there was a specific requirement that the facts showing the prejudice be set forth in the application, and the affidavits filed in support thereof. The requirement under the present statute, that the prejudice of the judge must be shown, is equivalent to that contained in the earlier ones.

In the case of Solander v. People, 2 Colo. 48, this court, passing upon an application for change of venue for prejudice of the judge, said:

'It is plain that the petitioner must now set forth in his petition the ground upon which the venue may be changed, as, that the judge or the inhabitants of the county are prejudiced against him, and also the facts which lead to the belief that such ground exists. Affidavits may be filed to show the truth of these facts, and if the ground upon which the change is asked sufficiently appears, the prayer of the petitioner will be granted; otherwise it should be denied.

'In support of the allegation that the judge was prejudiced against her, petitioner averred that she had heard that the judge had expressed the opinion that she was guilty of the crime charged, and that, at a former term of court, he had tried to prevent her from procuring bail in the cause. The mere statement that she had heard such rumors, there being no averment as to the truth of them, may be dismissed without comment.'

In Mullin v. People, 15 Colo. 437, 24 P. 880, 9 L.R.A. 566, 22 Am.St.Rep. 414, speaking to this proposition, under the present statute, it was said:

'In some jurisdictions, when a change of venue is asked on account of the prejudice of the presiding judge, it is not necessary to set forth in the petition the fact or facts on which the party bases his fears that he will not receive a fair trial in the court wherein the cause is pending. But in this state such facts must be stated, although with not the same particularity as is required in cases in which the application is based upon the alleged prejudice of the inhabitants of the county.'

Our own authorities seem clear upon this point and we need not look elsewhere. The reason for such requirement is obvious, else the mere filing of an application and affidavits simply expressing a belief that, because of the bias and prejudice of the judge, a fair and impartial trial could not be had, would work a change of venue in any criminal cause. The statute is incapable of any such construction; its plain meaning is to the contrary. The hardship, delay and impossibility of bringing offenders to justice in many cases, if the venue might be thus readily and easily changed, is manifest. The motion was properly denied.

The defendant was convicted upon the first trial of murder in the second degree, on an information charging first degree murder. On writ of error from this court, the judgment entered on that verdict was reversed for failure of the trial court to fully instruct upon the subject of self-defense. On a second trial the defendant was again convicted of murder in the second degree, the trial having been conducted as though no previous trial had been had. The claim is that having been once convicted of second degree murder, the defendant was by the verdict acquitted of first degree murder, and on a second trial could not be put in jeopardy of punishment for a crime higher in degree than that of which he was first convicted.

By section 18 of article 2 of the Constitution of the state, it is provided:

'That no person shall be compelled to testify against himself in a criminal case nor shall any person be twice put in jeopardy for the same offense. If the jury disagree, or if the judgment be arrested after the verdict, or if the judgment be reversed for error in law, the accused shall not be deemed to have been in jeopardy.'

This provision of the Constitution needs no construction; it is as plain and clear as language can make it. It means: First, if the jury disagree, that the accused may be tried again upon the charge as if no...