Brisbin v. SchauerBrisbin v. Schauer
delivered the opinion of the Court.
Robert Lee Brisbin (hereinafter referred to as appellant) was charged with murder in the first degree to which he pleaded not guilty by reason of insanity. Hе was tried to the court and found not guilty by reason of insanity at the time of the alleged commission of the crime. He was committed to the Colorado State Hospital at Pueblo.
Six months later, in December, 1969, appellant filed a Petition for Writ of Habeas Corpus asking the Montezuma County District Court tо determine if he was entitled to discharge or conditional release. The court issued the writ and a return was filed. In January, 1970, appellant filed a Mоtion for Change of Venue, alleging he could not receive a fair jury trial in Montezuma and neighboring counties, and that it would be more to the *552 convenience, of witnesses to hold the trial in .Pueblo County. In addition to appellant’s affidavit supporting his motion, sixteen affidavits from citizens of Montezuma Cоunty were, affixed supporting his claims. The court denied the motion on the grounds that appellant was not entitled to a change of venue in a hearing on a Writ of Habeas Corpus. Following denial of appellant’s Motion for Change of Venue, the appellant chose to' have his case tried to the court.
Pursuant to a hearing on the writ, appellant wаs recommitted to the Colorado State Hospital. Appellant’s Motion for New Trial was denied.
From these proceedings appellant appeals, contending that the trial judge erred in denying the motion. We аgree that the reasoning underlying the ruling on the motion was incorrect. However, we find that appellant was not prejudiced by the error becаuse he later elected to try his case to the court without a jury. Accordingly, we affirm the judgment of the trial court.
The trial court based its denial of appellant’s Motion for Change of Venue on its belief that a changе of venue was not available because the remedy sought arosе pursuant to a Writ of Habeas Corpus. We do not agree with the trial court on this point. Where a jury trial is granted, the right to a fair and impartial jury is a cоnstitutional right which can never be abrogated.
Groppi v. Wisconsin,
In the present case, however, appellant tried *553 his case to the trial court, although the statute expressly provides that if he had so demanded, he could hаve had a trial to a jury. 1965 Perm. Supp., C.R.S. 1963, 39-8-4(14). By electing to try the case to the сourt appellant here was foreclosed'from asserting error in the ..denial of a change'of venue. His contention in presenting his motion fоr a change of .venue was. that he could not obtain trial by a fair and imрartial jury in the district in which he was proceeding. Nowhere did he complain that he could not obtain a fair trial before the trial judge. Under such circumstances,, the issue of whether .the change of venue should have beеn granted became moot. If appellant desired to attack the validity of the ruling on his motion for change of venue because he cоuld hot receive a fair and impartial jury, he should have proceeded to a jury trial and then appealed if the result returned was unfavorable to him.
Appellant raises issues concerning the constitutionality of the statute. These issues, however, have been disposed of adversely to his position in
Schauer v. Smeltzer,
The judgment is affirmed.