30 Colo. 20 | Colo. | 1902
delivered the opinion of the court.
The record, or at least the abstract of it, is so unsystematically put together that it has not been easy to apprehend the pertinency or force of some of the objections urged.
1. To the consolidation of the two informations the objection seems to be that, since the sale under the first is alleged to be for the benefit of defendant and under the second for his gain and that of one Seed, the two offenses are entirely distinct and unconnected, hence may not be properly united for trial under sec. 1452 Mills’ Ann. Stats., Gen. Stats., sec. 945. From the abstract it does not affirmatively appear that the two informations could not be properly joined. If necessary so to hold, the averment in the second that the sale was in part for the benefit
2. Sec. 1460, Mills’ Ann. Stats., Gen. Stats., sec. 953, requires a copy of the indictment and a list of the jurors and witnesses to be furnished, previous to the arraignment, to every person charged with felony and in all other cases a def endant at his own request or that of his counsel shall be furnished therewith. Upon the day of the trial, two days after arraignment and plea, defendant made a request that the copy and list be furnished him. The court denied the request and defendant excepted. Our statute is substantially the same as, and evidently was taken' from, sec. 180 of the Revised Statutes of Illinois, 1845. In Kelly v. People, 132 Ill., 363, 371, it was held that before waiving formal arraignment and pleading to the indictment the defendant should have demanded the copy and list and upon being refused, should have excepted and presented the fact of such demand. Not having done so, but making the request for the first time after arraignment 'and a plea of not guilty had been entered and the cause was on the eve of trial, he cannot be heard to complain. We think this a reasonable construction of the statute. It confers a benefit upon a defendant which he may waive and does so unless he makes the request before arraignment and a plea of not guilty.
Other authorities to the same effect are collated in 1 Bishop’s New Criminal Procedure, § 126; 1 Bishop’s New Criminal Law, % 997 (3). See also United States v. Curtis, 4 Mason, 244; Cook v. State, 26 Ga., 593; Bird v. State, 50 Ga., 585; Johnson v. State, 43 Ark., 391.
3. At five o ’clock on the afternoon of the day of
4. So far as we can ascertain it does not appear that any material error was committed in the admission or rejection of testimony; Indeed the abstract is so unsatisfactory and so little of the record which bears upon the objections reproduced that it has been impossible for us to perceive upon what they rest. Neither can the objections to instructions given by the court be considered. Not all of them are before us, and for this reason alone we cannot pass upon assignments of error as to one or more of the series.
5. We cannot disturb the finding. The evidence was conflicting and the credibility of the witnesses was a matter entirely for the jury. Complaint is made that there was no evidence to sustain the charge under the second information and for that reason the verdict should be set aside. A sufficient reply to this is that the abstract of the testimony is so obviously incomplete that the most careful examination of it will not justify an attempt to decide the point. But it is apparent that if the informations were properly consolidated or if they relate to the same transaction or are closely connected as a part of the same act, there is no force in the objection now urged. Certainly there was testimony sufficient to sustain the charge set forth in the first information and the fine imposed was within the limits prescribed for that offense.
6. An attempt was made to show that defendant had previously been charged with, and tried for, a
7. Whether the court erred in overruling defendant’s motion to retáx. costs we cannot determine. The particulars in which the alleged error was made are not pointed out; neither the abstract nor citations to the transcript furnish any data upon which such an ascertainment can be had. We are not required to search through the transcript for the purpose of discovering or detecting possible error which the party complaining has not seen fit in a proper way to bring to our attention.
8. The most important question discussed is that the court overruled defendant’s challenge to the array of jurors. At the time of the trial there was no regular panel of jurors in attendance, and the court thereupon ordered the issuance of an open venire directed to the sheriff for eighteen jurors who were thereupon summoned and brought into court. Defendant then interposed his challenge to the array on account of the method of drawing the jury; his contention being that no effort was made by the court or its clerk to summon the jury through the clerk of the district court in the presence of- the sheriff as he claims the statute requires. The statute referred to is found in Session Laws of 1891, p. 248, et seq. The
Perceiving no substantial error in the record, the judgment must be affirmed and it is so ordered.
Affirmed.