141 P.2d 685
Colo.
1943

*1 15,156. No. People. et

McClain al. v. The (141 685) [2d] P. Rehearing September

Decided June denied *2 Mr. Forrest C. Mr. Robert O’Dell, McDougal, L. in error. plaintiffs General, Mr.

Mr. Gail L. Attorney H. Law- Ireland, As- Mr. James S. Deputy, Henderson, rence Hinkley, for the sistant, people.

En Banc. court. the opinion delivered Justice Burke

Mr. to as defend- referred hereinafter error, Plaintiffs be- whiskey selling convicted name, were ants or by the statute. in violation a.m. and 8:00 midnight tween $15, and Cardwell $100, O’Brien $200, fined McClain was that judg- To review payment. and committed pending the trial Five rulings this writ. ment they prosecute Holding i.e., 1. argued, as error and court are assigned a overruling constitutional; the statute relied upon motion to a disqualify challenge panel offer of McClain’s sheriff; 3. evidence admitting made one defendant statements of admitting guilty; cautionary of a others; 5. refusal outside instruction as to the of a witness. testimony makes unlawful statute

1. The questioned a.m. sell the hours of 12:00 intoxicating between liquor a.m.; and 8:00 that in cities having “provided, popula- tion of a.m. 50,000 more,” the hours fixed 2:00 7:00 a.m. ’35 c. Defendants as- C.S.A., §17(d). sert this classification violates section article Y of our Constitution. section forbids the Said passage local or laws in enumerated special various specifically cases (of which that here in is not one) “In concludes: all other cases, can general be made applicable, no special law shall be enacted.” Whether a be made is a law can applicable ques- Brown tion of Denver, v. legislative discretion. 7 Colo. 305, 309, Pac. 455; Carpenter

122, 5 Pac. 828. can Courts interfere only when there is a clear Co., abuse of that discretion. Coulter v. Routt Pac. 199. We find such abuse here. Added police supervision control, usually found *3 larger municipalities, would alone the classifica- justify tion. In a somewhat similar situation we sustained a like distinction on principles here applicable. People v. Earl, 42 Colo. 238, 94 Pac. 294; Driverless Car Co. v. Armstrong, 14 P. 1098. The statute is constitutional. The cause came on for trial December

Thirty had jurors been already summoned the sheriff on an venire open with full knowledge of defendants. That morning prejudice against filed an affidavit of they the case sheriff When the challenge array. was called these were and overruled. Motion presented were not in time. Defendants’ excuse challenge apt is that did not the the they realize of sheriff prejudice and the list. resulting until the injury jury obtained they their objection goes assert prima They repeatedly If ruling on that list. the the first fifteen names rily to it. disclose developments were later should' prejudicial should disclose the of the They jurors disqualification them, at summoned or some of considerable number least the half, first and that defendants were compelled challenges. is peremptory record exhaust their

to of developments number the dire; on voir as to silent per- any, cause; the number jurors, excused if challenges and the names emptory exercised; prejudice aught finally no jurors For we know sworn. per- juror cause, excused disclosed, no was emptory finally challenge exercised, and the twelve names on the first fifteen from were all selected sworn presumes is silent the law list. the record the Where prejudice regularity it. must show he who claims Doyle People, v. v. Pac. 65 Colo. Hoffman applies People, 72 Colo. Pac. 848. same rule change as in venue here cases where a motion for a ground prejudice the over- on inhabitants challenges If ruled. examination indicate fail to possible prejudice presumption it. Wilder 35, 42, 278 Pac. 594. ad testified that McClain Morris

3. Sheriff selling as a McClain Called witness hours. after mitted if he had he was asked it. cross-examination denied On attorney in latter’s office. to the district not so stated negative. question, “Isn’t Then in the He answered guilty you you plead fact, McClain, said would it a Mr. put justice this in court? A. There was case was agree to it.” The that, about didn’t conversation but “Q. Morris, did sheriff was called on rebuttal. Mr. de say your my he fendant office that would * * plead guilty charge? to this A. He did *. McClain pres wanted make a deal to take this case out place justice ent it was filed and tried in the guilty court, which he offered if that was done.” *4 objection urged Admission of this evidence over is here as a violation of the rule the offers admission of compromise. question There is of that rule in civil cases. question applicability There is a serious of its criminal encourages compro cases because the law the upon mise of former, the but frowns the latter. How pass question ever we since this evidence was clearly An offer to for another reason. admissible strings guilty properly be con- attached could with no always guilt and such are ad- strued as an admission of original question missible. It that the will observed guilt. en- was whether McClain admitted This was had tirely proper part the A state’s main case. dis- agreement say as to he did arose what and this involved interpretation the correct of his statement. rebuttal On credibility. the one of was McClain’s con- dition attached had no to innocence. relation McClain’s It proposed concerned the court in which he to plea, the make hence the state was entitled to maintain guilt, that this was an admission of the defense the con- trary. implication jury. the be drawn was for Christian (2d) v. United F. States, 8 Carter 732; State, 161 Tenn. S.W. Benton, State v. 173 La. Contrary 600, 138 So. 116. authorities cited in the briefs of counsel but we think the rule stated foregoing the is, as logical there concluded, the more supported greater weight the and number of ad- judicated cases. by one made Evidence of certain statements admit defendant the the others was out of assigned. The objection ted over error is and thereon Byron, an illustrated: character these is thus investigator attorney and a witness the district people, Mc at at 12:30 a.m. asked for a drink about place. O’Brien, Clain’s the bar bartender, told him you go closed, was “if of the but one want to back to you booths I can take care there.” He went night there served raid, Cardwell. On busy taking while sheriff names, exhibits Byron they defendant said Cardwell seen the had “they got liquor] sheriff come in [the would off liquors table.” After raid McClain stated that “if were sold after hours the sales were If intentional.” technically such statements were within the rule it is apparent prejudicial. their admission was not The rule

276 thereto are but certain exceptions

itself is unquestioned the result if the act is instance, charged so. For equally developed or simply of a charged whether conspiracy, ex- are evidence, the statements admissible. by a technical criminal does not rest ception upon proof action unity but arises from the fact of conspiracy to a Here McClain given operated end. owned em- his business. O’Brien and Cardwell were merely his direction. The evi- under ployees, presumably acting dence related to an or course of con- established practice duct in that business with which all were presumably If the offense one charged is, here, but acquainted. committed in the usual many course of that business in which those then charged jointly engaged, long as that is and the business transacted violations continue statements of in relation parties thereto are admis- sible, the one the other. The offense is charged one which is because simply illegal forbidden therefore of intent question involved, hence an instruction here that O’Brien and Cardwell were not bound by statement of McClain would futile since that state- ment went an immaterial element, and an in- struction that McClain was not bound the statements of O’Brien and Cardwell would be since contradictory their statements related to a course of conduct for which McClain was responsible, whether in his presence, his express order, or otherwise. Hershorn v. People, Colo. 113 P. Kolkman v. 680; People, (2d) Colo. 300 Pac. 575. instruction 6 told tendered No.

5. Defendants’ evi jurors employed procure that because Byron cau “should be received with testimony great dence his error. In of this tion.” Its refusal assigned support de rely counsel certain assignment principally upon cisions of other We need not examine jurisdictions. them. The has definitely been settled here and that has been even contrary ruling applied alleged witnesses were accom- People, supra; Wilder Adams v. People, plices. Mukuri v. 285 Pac. 19 P. *6 think

We this record that these de- clearly establishes fendants willfully were jointly, knowingly engaged in a violation of the statute ac- and that each was fully quainted with the therein part others, and played we discover no reversible error. The is ac- judgment cordingly affirmed. Goudy

Mr. Justice Hilliard and Mr. Justice dissent. On Petition Rehearing.

Mr. Justice Hilliard, dissenting. ’35 charged, statute the offense governing C.S.A., 89, section 17. The chapter provision pertinent * * *

reads: “It shall (d) be for any unlawful person: sell, To malt, serve or distribute any vinous or spirituous the drink liquors by on the consumption premises on week between the days hours of 12:00 o’clock a.m. a.m.; 8:00 o’clock in cities a provided, having that of population fifty thousand more, or between (50,000) the hours of a.m., 2:00 o’clock a.m. and 7:00 o’clock ” * * * The scene of the offense was in Jeffer- alleged son and it county, that it occurred at stipulated all, it was before 2:00 o’clock a.m. In short, what was an offense in Jefferson would not an county, have been offense had it occurred across line in the imaginary City and County of Denver.

While other errors are and I think of assigned, some them merit, I confine my discussion to the claim that inasmuch as the is not law of uniform application throughout state, it is unconstitutional, for, that, is special legislation and in contravention of 25, section Y, article the Constitution. The controlling legal phi- well stated in Allen v. Colorado Springs, losophy Colo. 498, 75 P. (2d) 141; City Denver v. Bach, Bill No. In Re Senate 58 Pac. con- precise 522. The 39 Pac. ex in State Supreme Florida, Court of

sidered de- 802, where Fla. 3 So. Coleman, 148 rel. v. pro- discharged in a situation were similar fendants opinion corpus. ceeding I commend in habeas distinguished tribunal. that inquiry, legislative in this involved enactment

necessarily which, effect, concern, but state-wide given liquor in Jeffer- provides at a hour a sale of punishable county, crime, a while shall constitute son City County hour in the a like sale at the same Springs, not Pueblo, shall Denver, punishable or Colorado crime, is, convinced, am violative assembly that, “The inhibition constitutional * * gen- pass special *, shall not local or laws every applicable,” and, well, eral can be made *7 justice. It is consistent with con- canon of common-law safeguards, portion think, to construe stitutional severity, greatest license, of the constituting or of least regard in that act, and may application regarded it be as constitutional. Goudy opinion. Mr. Justice concurs in this