People v. District Court of First Judicial District

Mr. Justice Bailey delivered the opinion of the court: This is an original application for a writ of certiorari and prohibition. At a primary election, held September 3, 1910, at the residence of John W. Maloney in a South Englewood precinct, Arapahoe county, an altercation ensued which ended in an affray. It is out of prosecution over that difficulty that this application arises. A petition was filed, October 5, 1910, on affidavit by Maloney, charging the petitioner here and Duke J. Kavanaugh, district attorney and deputy district attorney, respectively,* and Claude E. Street, Joseph Kille, John D: Frederick and P. Z. Fogle with an assault, with a deadly weapon, upon him, praying the appointment of a special prosecutor to1 take charge of and investigate the matter, because of the personal interest therein of the regular prosecuting officers. The court thereupon appointed J. W. B. Smith, Esq., an attorney of the Colorado bar, to act in that capacity. On November n, 1910, he filed an information against the parties named, charging them jointly with the alleged offense. Morgan and Kavanaugh were put to trial separately. Under court instructions, the jury returned a verdict of not guilty, and they were discharged. Thereupon Smith entered a nolle prosequi as to the defendants Street, Kille, Frederick and 'Fogle, and they also' were discharged. Presently thereafter Smith filed his report with the district court, showing, among other • things, the matters above set forth, and withdrawing from [239] the prosecution, which withdrawal was by formal order duly accepted. Thereafter Maloney filed another affidavit, charging the same persons with instigating, at the time and place previously designated, a riot, and charging them with an assault, not only upon himself, but upon members of his family as well. Ota the same day E. M. Sabin, Esq., an attorney, filed a motion for the appointment of a special prosecutor, based on Maloney’s affidavit, showing the disqualification of' the district attorney and deputy because of interest. Pursuant to that motion, an order was entered appointing Sabin as such prosecutor, duly empowered to take such action on the affidavit as to him might seem proper. In making this order the court found that both Morgan and Kavanaugh had a personal interest in any investigation of the offenses of which complaint was made. Eater, Maloney filed two more affidavits, one charging •Street, Frederick, Kille and Fogle with an assault on his person, the other charging Morgan with unlawfully beating Mary E. Maloney, the wife of affiant, a new offense, but all growing out of the difficulty at the primary. Sabin. thereupon informed against these parties for the alleged respective offenses. The petitioner, Morgan, filed a motion to quash the information against him, setting up, by affidavit, that there was no lawful charge upon which he could be tried, for the reason that the court had exhausted its power, relative to this matter, by the appointment of Smith as special prosecutor, and that therefore the information filed by Sabin was a nullity; and also because the alleged offense prosecuted by Smith, against him, is the same offense charged in the information filed by Sabin. The motion was overruled, and Morgan applies for a writ prohibiting thé respondents from further acting under the order naming Sabin special' prosecutor, because of the supposed lack of authority in the court to make the appointment. [240] We have examined the record with the utmost care and are persuaded, beyond question, that it was within the jurisdiction of the court to1 name the second special prosecutor. The interest of Morgan and Kavanaugh, district attorney and deputy, respectively, in the matter to be examined, remained the same as originally. Attorney Smith, first appointed, had withdrawn as such officer, the withdrawal having been allowed by the court and noted of record. Thereafter new affidavits, embodying new charges, were formally presented. Some disposition must be made of them. By the affidavits the power and authority of the court were invoked. In this state of the record it seems, that nothing was left for the court to do but designate a suitable person to represent the people. The regular prosecuting officers were disqualified, and the special prosecutor having declined to act further, plainly it was not only within the power of the court, but was its clear duty to appoint an attorney to take action upon the matters thus presented. There was no attempt to direct the. action of that officer or control his discretion. The whole controversy is as to the authority of1 the court to make the second appointment. If it had jurisdiction, the information must be met and defended against in the court where filed, and if it did not have jurisdiction, then further proceedings should be prohibited. The sole question is, did the court have authority to act? If it did, whether it exercised that authority correctly or erroneously are matters which may not be inquired into in this proceeding. That it had such authority seems too clear for argument. New and different charges were before the court, the special prosecutor first named had withdrawn, the regular officers were disqualified, and unless a substitute may be named, the whole machinery of the court, so far as this matter be concerned, is completely blocked. It was never contemplated that such a situation could be brought about by any one, or by any set of facts or circumstances. All conditions were present to give the court authority, under the statute, to appoint a special prosecutor, and we are unable [241] to see why it did not have the power to do SO', although such appointee be a second one, just the same as, under like circumstances, it had power to appoint originally. The jurisdiction of the court was complete, and there is nothing in the statute, which confers the power of appointment, to indicate a limitation upon the court in respect to its exercise. The discretion is with the court to appoint, or decline to, as public interest seems to require and demand. The petitioner relies upon the case of Gray, District Attorney, v. District Court, reported in 42 Colorado 298, as determining that the court had no jurisdiction to appoint in this case. The two cases are clearly distinguishable. The thing in the Gray case which disclosed lack of jurisdiction in the court to remove him, was the fact that it did not appear that he had any personal interest in the subject-matter of the trial. In this case it is shown that the petitioner has precisely the sort and kind of interest in the matter to be examined that is, by statute, made cause for the removal of a regular district attorney and the appointment of a. special prosecutor. In the Gray case the interest contemplated by statute was wholly lacking; while -here such interest fully appears. Under the facts and circumstances of this case, the court below clearly had authority to appoint Sabin, and the informations presented by him were lawfully and properly filed and must be disposed of in the manner prescribed by law for the disposition of all criminal charges. Since the informations were presented by one duly authorized, whatever objections or defenses there may be tO' them, some of which have been suggested in these proceedings, either in law or fact, must be offered and -urg*ed in the trial court, in the usual and ordinary way, where a complete, adequate and speedy remedy at law is afforded, ■ with full opportunity for review should there be- occasion for it. To hold otherwise would be, in effect, to convert the writ of prohibition into a writ of error, a course which "is contrary to reason and unsupported by precedent. [242] The application and alternative order are dismissed and •the writ of prohibition denied. Decision en banc. Mr. Justice Musser not participating.