45 Colo. 327 | Colo. | 1909
delivered the opinion of the court:
On January 20, 1908, in the Pueblo' county district court, the plaintiff in error, defendant in the lower court, was convicted of the crime of arson, and sentenced to serve a term of years in the state penitentiary. The information upon which conviction was had is in three counts, the only difference between them being as to the ownership and description of property. The three buildings destroyed
Counsel for defendant directs special attention to three grounds of alleged error: • First, the refusal of the court to grant defendant’s application for a continuance of the cause, interposed on January 13th, the day for which the trial had been formerly, and on December 2nd, set down; second, in the admission of certain testimony by the fire chief of Pueblo, Patrick D. McCartin; and, third, in refusing to give instruction numbered 5 requested by the defendant, and in giving paragraph 11 of the court’s general charge to the jury.
In reference to the supposed error in refusing to grant the continuance asked by the defendant, it will be observed that it is settled law in this jurisdiction that “the granting or refusing of applications for a continuance rests largely in the discretion of the trial court, and the doctrine established
A' critical examination of the record fails to disclose anything suggestive of an abuse of discretion by the trial court in denying the continuance prayed. The information was filed early in October, that being the September term of the court. The next term of the court opened in November, when the defendant was arraigned and entered plea.. At that time postponement of the time of setting the cause for trial was had, at the request of the defendant, until December 2nd, at which latter date the case, by consent, was set down to be tried on January 13th following. Statement was made in open court, in the presence of defendant, by his then record attorney, that this would give ample time in which to prepare the case. The trial judge, in overruling the motion for a continuance, among other things, said: “The court must take judicial cognizance of what has appeared to the court from time to time. It is not fair to state that Mr- Saunders remained unqualifiedly in your case until the other day. When this case was called for setting on the 21st day of November, Mr. Saunders expressly limited his appearance for the purpose of having the case set down as far off as possible. He did not appear unconditionally, as stated. ” It is clearly apparent from the record that, if the defendant was not prepared to go forward with the case, at the time it was set for trial, it is wholly his own fault, and comes from his want of diligence in that behalf. The defendant was in court when the case was set, and understood fully when the trial would occur, and it was incumbent on him to make the necessary arrangements to that end. At that time, he well knew that probably Mr. Saunders would not continue as attorney, and it was his duty
As to the second ground of alleged error, that of permitting Fire Chief McCartin to1 testify and give his opinion that the fire was probably caused by fumes from gasoline and gas turned on in the building, the record shows on this point as follow's: The district attorney asked this question: “You may state to the jury what, in your opinion, if anything, aided, or added to, or caused, the conflagration or flames which you observed at the Goldberger fire that night?” (Objected to as incompetent; objection overruled; excepted to by defendant.) Answer: “We have had a great many gasoline fires here, and gasoline was saturated through the clothes,' and- gas turned on and a match struck to it, would blow the whole place up.” It will be instantly noted that this
The refusal of the court to give instruction-numbered 5 asked by defendant, is assigned for error. The proposed instruction is as follows: “If you, after full and careful consideration of the evidence in this case, entertain a reasonable doubt as to the identity of the Charles Hathaway mentioned in the information herein with the body of the corpse testified to as found in store-room 124 South Union Avenue, immediately after the fire thereat on September 29th, 1907, then it is your duty to acquit the defendant, M. Goldberger.” It will be observed that the information charges the direct offense of arson against the defendant Goldberger alone. The information itself couples Hathaway with Goldberger in no manner, and does not name or refer to him at all. The offered instruction neither states the law applicable to the case, nor the facts, correctly. Such an instruction would have permitted the conviction of' Goldberger for arson only in the event that the jury should first find, from the testimony, beyond a reasonable doubt, that the person Hathaway lost his life in the burning. It might well be believed that Goldberger and Hathaway conspired to burn the property, and that Hathaway thereupon fled the country, and that the body found in the burned building was that of some third person, and possibly an innocent victim of the unfortunate occurrence. Under such conditions, will defendant’s counsel contend that Goldberger was not guilty of the crime of arson, simply because the body of the dead man was not shown, beyond a reasonable doubt, to be that of Hathaway? A mere statement of this possible situation—and others even more potent and convincing will readily suggest themselves—is a complete refu
Paragraph 11 of the court’s charge, to which objection is made, reads as follows: “You ar.e-further instructed that if you believe, from the evidence, beyond a reasonable doubt, that the defendant personally, or in conjunction with any other person or persons whomsoever, or that the defendant, by aiding, advising or abetting any other person ■ or persons whomsoever, to feloniously, willfully and maliciously set fire to and' burn, did so burn, or caused to be burned, any of the buildings described in the information herein, he is guilty of arson, as charged in the information as to any such building or buildings, if any, which you find were so burned.” We are unable to see how a more succinct and accurate statement of the facts and circumstances necessary for the jury to find in order to warrant a verdict of guilty, could well have been formulated. The information charges the defendant, Goldberger, directly and personally, with the offense of arson. The state was not committed by this charge to any one theory or to any single line of proof, as is contended for defendant by his attorney. If, upon the whole testimony adduced, the jury could find, beyond a reasonable doubt, that Goldberger, either personally, or in conjunction with any other person or persons whomsoever, feloniously burned the buildings, or if it could find that he, by aiding, advising or abetting any other person or persons whomsoever, procured the felonious, willful and malicious burning of them, or either of them, then he was guilty, and it was the sole province of the jury, upon all of the testimony,
For our own satisfaction, we have examined the entire record, voluminous though it is, and are satisfied that the defendant has had a full, fair, just and impartial trial. We are further satisfied that the verdict reached by the jury is abundantly supported by the testimony. Indeed, we fail to see how any other verdict could have been reached by an intelligent jury, impelled by a sense of duty to uphold and enforce the law and punish crime. The prosecution was conducted with marked ability, and counsel for the defense exhausted every proper legitimate means known to the law, in a thoroughly professional and skillful way,- showing a complete preparedness of, and detailed acquaintance with the case, to save their client from the result of his deliberate wrong-doing.
Other errors are assigned, but they have not
Upon the whole record, the case is singularly free of prejudicial error, and, in this respect, considering its importance and the length of time involved in the trial, is in a degree notable.
It is believed that exact justice has been done, and that no mere technicalities, not of substance, should intervene to save'the defendant from merited punishment, and the judgment and sentence should therefore be affirmed. Affirmed.'