59 Colo. 578 | Colo. | 1915
delivered the opinion of the court.
December 1, 1913, plaintiff in error, as defendant, was
Defendant was a professional auctioneer, and had a place of business or stand in Montrose where he had for a number of years conducted public auctions. It was admitted that his license as such auctioneer had expired, and that he had none after May 1, 1913 ; but that one Rymal did have such a license on May 24, 1913.
The evidence for the city shows defendant advertised the sale in question, in his own name, to be held at “the old stand,” and that the sale was held at his usual place of conducting auction sales; that he was on the auction stand crying the sale, and sold various articles. The validity of the ordinance is not questioned. The defense was that Rymal was conducting the sale under a proper license, and that defendant was acting as his agent or assistant.
The court told the jury that the city was required to prove its case by a preponderance of the evidence; that defendant set up the defense that he conducted the auction as the agent and under the immediate control and direction of Rymal, who had an auctioneer’s license; that a licensed auctioneer need not make all the sales in person, but may employ necessary clerks and servants, have them use the hammer, make the outcry, and make all necessary arrangements for the sale; that this must be done under the licensed auctioneer’s immediate direction and supervision; that the licensed auctioneer haying the sale, need not be actually present dur
1. Error is assigned on the refusal of the court to give defendant’s requested instructions 8 and 6. The principle involved in these instructions was fully covered by the instructions given and a repetition was unnecessary.
2. This was a civil action to recover a penalty for violating an ordinance requiring auctioneers holding an auction sale, or exposing for sale at public vendue or auction any personal property, to procure a license therefor. It was admitted defendant had no such license and the evidence, without dispute or contradiction, shows he had for a number of years been a professional auctioneer, and conducted an auction business at a stand owned by him; that he advertised this sale in his name, at his old stand, and that on this occasion he cried the sale and used the hammer. • The defense was that the sale was Rymal’s, who had a license, and. that defendant acted as his agent. This, under the facts, was
3. It seems after the jury retired, the bailiff in charge told the court: “The jury wants to know what the penalty is- for the violation of the ordinance”; and that the court wrote out an instruction and gave it to the bailiff, with directions to deliver it to the jury; that none of the attorneys in the case were present when this occurred, and that they had no knowledge of it until after the trial was concluded. The instruction sent out to the jury was as follows. “The jury is further instructed that the penalty for a violation of the ordinance in question is a fine of from one cent to fifty dollars.” Good practice required that the court, before giving this instruction, should have called the jury into the court room, and read it to them in the presence of counsel for both sides, unless they waived this formality. We wish strongly to impress upon trial courts that they should not communicate with the jury on matters affecting the rights of the parties except in open court and in the presence of counsel.
Moffitt v. People, ante, 149 Pac. 104. While the giving of the instruction in this manner was bad procedure, we cannot hold it to be reversible error, because it does not appear that it in any manner prejudiced the rights of the defendant. It is also claimed that the instruction was erroneous and the judgment wrong; that under the ordinance the fine could not be less than $3.00 nor more than $100.00. That is true, but
4. It seems this was the second trial of the case. On the first trial, in which the jury disagreed, one Cooper was a member of the jury and voted for conviction. At the second trial Cooper acted as bailiff, to which defendant objected for the reasons above stated. Defendant in order to take advantage of this occurrence would have to show more than the above facts to warrant us in reversing the case on that ground. There is no claim that Cooper influenced the jury in any way or that the rights of defendant were in any manner prejudiced on this account or that the bailiff did not impartially perform the duties of his office.
The judgment is affirmed.
Affirmed.