Chase v. People

2 Colo. 509 | Colo. | 1875

Beleobd, J.

In the view which we take of these cases, it is immaterial to inquire whether the warrant for the arrest of the defendant was issued on a proper showing or not. He submitted himself to the jurisdiction of the court, without interposing any objection, and having done so, he cannot now be heard to say that the warrant was void or irregular. The objection to the constitutionality of the act which authorizes the prosecution of this class of offenses by information, is not well taken. By the common law all offenses below the degree of felony are denominated misdemeanors, and might be prosecuted by information, filed ex officio by the attorney-general. A felony at common law embraced only such crimes as were punished capitally. United States v. Sheppard, Chicago Legal News, vol. 2, p. 317.

The constitution of the United States to which the territorial legislature must conform does not inhibit prosecution by information when the offense falls below the degree of capital or infamous.

It cannot be said that keeping a gambling-house, in the eye of the law, is infamous. It is neither a felony at common law, nor is it made so by statute. The great weight of authority sustains this mode of procedure. State v. Dover, 9 N. H. 469; Commonwealth v. Waterborough, 5 Mass. 259; State v. Keys, 8 Vt. 62; Rowan v. The State, 30 Wis. 130; Ex parte Bergin, 31 id. 383.

Nor do we apprehend that it is necessary for the information to specify the names of the persons engaged in play at the house complained of. State v. Prescott, 33 N. H. 212, and cases therein cited.

When a person is charged with keeping a house to be used or occupied for gambling, it is not necessary to show that gambling actually took place. The intention is a matter of proof, and if that can be established, it is immaterial whether the prohibited establishment shall find customers or not. The State v. Miller, 5 Blackf. 502.

We are further of the opmion that the affidavit filed by the defendant for a continuance was insufficient and should have been overruled in the first instance. It merely sets up a conclusion of law and not a fact, or a series of facts, which it was expected could or would be proven by the absent witness. It was tantamount to saying that defendant expected to prove by the witness that defendant was not guilty. Applications of this character should specify the precise matters which the applicant expects to establish by the witness, so that the court may judge of the materiality of the proposed evidence. When the order granting the continuance was vacated, the defendant was present in court, and of the power of the court to so vacate it there can be no question. We think it worked no hardship or inconvenience to the defendant, especially when it appears that the continuance was granted on an insufficient showing. Continuances should never be granted except in furtheranee of justice, and we cannot think that that end would have been reached by delaying the trial. The witnesses on behalf of the prosecution were about leaving the territory ; they were unable to furnish sureties, and their attendance at another term could only have been secured by placing them in confinement. The prosecution must have been abandoned or the witnesses imprisoned. Such a course would have smacked rather of injustice than of justice.

The information charges the offense to have been committed on the 28th of October, and evidence was introduced, over defendant’s objection, to show that gambling had been carried on in this building prior to that time. We think this evidence was admissible to explain the character of the house, and the purpose and intent with which it was kept. People v. Jenners, 5 Mich. 327, 328; Armstrong v. The State, 4 Blackf. 247; People v. Hopson, 1 Den. 574.

The instructions are unobjectionable. Chase certainly could not defend himself on the ground that he was agent for another. Wharton’s Crim. Law, § 2365; State v. Bell, 5 Porter, 366.

The judgment must be

Affirmed.