4 Colo. App. 71 | Colo. Ct. App. | 1893
delivered the opinion of the court.
This verdict, sentence and judgment cannot be upheld, even though they are abundantly sustained by the testimony, and the punishment would be evidently righteous.
In June, 1891, John Cummins, the plaintiff in error, was proceeded against before a justice of the peace in Las Animas county, on divers charges of obtaining money by false pretenses. The justice committed him to jail iu default of giving a bond of two thousand dollars. Subsequently habeas corpus proceedings were instituted by Cummins to secure his release, based principally on the contention that, since the crime with which he was charged was committed in the carrying out of an unlawful agreement between him and the prosecuting witness, the acts could not legally be counted criminal, and he was therefore entitled to his discharge. He was unsuccessful in these proceedings and remained in jail. The district court met in Las Animas county in-September at its regular term, and, presumably because these habeas corpus proceedings were pending, no action was taken at that term
As will be remembered, nothing was done concerning the indictment or trial of the defendant during two whole terms, to wit: the September and January terms of the district court of Las Animas county, to which he was recognized by the justice before whom the preliminary examination was had. At the beginning of the March term, Cummins filed a petition for his discharge under the habeas corpus act, on the ground that two terms of the district court had been held, and no proceedings had been taken with reference to his trial.
The court is clothed with ample power to consolidate criminal causes wherever, under the law, the crimes are of the sort that they may be properly joined in one indictment and the defendant put to trial thereon. General Statutes, § 945; (Mills’ Ann. Stat. § 1452). This statute is in reality but an embodiment of a well established principle of the common law, and is no broader than was that rule unless it be in the consolidation of causes, and confers no greater power than that enjoyed and exercised prior to the enactment of the statute. This is clear from the very terms of the statute for the words of limitation, “ which may be properly joined,” must evidently have been inserted as a restriction upon the general right to consolidate or join different offenses in one indictment which otherwise the section would confer. To give the statute full force and to give effect to all its terms necessitates this conclusion, and it is only necessary to ascertain by a consideration of well settled rules what crimes may be property joined in one indictment. This determination will also settle what cases may be consolidated in case different indictments are found by the grand jury. It has always been holden with reference to felonies that only one transaction can be embraced in a single indictment. The acts done may result in the commission of several different statutory or common law crimes, but wherever the felonies are separate and distinct, and not provable by the same evidence, and have been committed at different times, so that they can in no sense be deemed to result from the same series of acts, they may not be joined in one indictment; and consequently, if several indictments be found, the court is powerless to order the cases consolidated. Bishop on Criminal Procedure (2 ed.) vol. 1, §§ 448-9 et seq.; Goodhue v. The People, 94 Ill. 37; People v. Aikin, 66 Mich. 460; People etc. v. Fisher, 37 Kas. 404; Kelly v. The People etc., 17 Colo. 130.
Manifestly, the felonies charged in these two indictments could not be consolidated without an infraction of this rule.
The other proposition is equally conclusive and more unfortunate, since it must result in the discharge of the prisoner, and release him from punishment. We have in this state (General Statutes, § 1609) in the habeas corpus act, a provision that “ If any person shall be committed for a criminal or supposed criminal matter and not admitted to bail, and shall not be tried on or before the second term of the court having jurisdiction of the offense, the prisoner shall be set at liberty by the court unless the delay shall happen on the application of the prisoner.” . . . This is undoubtedly a statutory definition of the constitutional provision which exists in all our state constitutions, as well as in the federal organic law, to wit: — that the defendant in a criminal case shall be entitled to a speedy trial. This speedy trial was undoubtedly analogous to the right which obtained to the defendant at the common law, and which was recognized by the judges who held court under the commission of both oyer and terminer and gaol delivery. Under these commissions, it was the custom of the judges to proceed against the prisoners who were in confinement, and except upon occasion shown to clear the jail of all offenders two or three times a year. Blackstone’s Co., Book 4, chap. 19; Hale’s Pleas of the Crown, chap. 5; United States v. Fox, 3 Mon. 512; Harrington v. The State, 36 Ala. 236; Bouvier’s Law Dict., title Gen. G. D.
Our statute seems to contemplate the same procedure, but gives the right to the defendant to insist upon his discharge by proper proceedings, if he be not tried within the designated time. With reference to the case of criminals under
For these - errors the judgment of conviction must be reversed. The judgment will be reversed, the case remanded to the district court, with directions to that court to set aside the judgment of conviction and its order denjdng the prisoner’s petition for a discharge, and to enter an order discharging him from custody.
The case will be reversed for further proceedings in conformity with this opinion.
Reversed.