People v. Zobel

Mr. Justice Gabbert delivered the opinion of the court: It is well settled in this state, and generally, in this country, that a writ of error in a criminal case will not lie at the instance of the state unless clearly authorized by statute— People v. Raymond, 18 Colo. 242; U. S. v. Sanges, 144 U. S. 310 — and the first question we shall determine, is, whether or not the section of the statute above quoted covers the case made by the facts. It appears from the record that the dismissal of the cause was based upon facts, knowledge of which the judge obtained outside of the record in this case, which were, that because the [287] proceedings against the other defendants charged with the larceny of the ores had been dismissed, and it appeared to- the court from the facts established at the trial of the civil action,, that they were the principals, and the defendant only an accessory, that the latter could not be tried after the discharge of his principals. In legal effect, therefore, the action of the court was based upon a plea in bar, which of its own motion it. orally interposed. Such being the case, it is not necessary to. define the meaning of the phrase “questions of law arising at the trial,” for the reason that a decision of the court was made-on a plea in bar, and that is one which the statute specifically authorizes to be reviewed in a proceeding like the present one.. In this state an accessory is guilty the same as a principal,, and may be indicted and punished as a principal — sec. 1620, R. S. 1908. The mere fact that the district attorney had dis- ' missed the proceedings against the principals did not justify the court, over his objection, to discharge the accessory. This is true, even if an accessory can not be tried after the discharge-of the principal; that is, the court should not, for this reason,, refuse to set a case against an accessory for trial, and of its; own motion dismiss it before it had regularly been brought on for trial before a jury. It would doubtless be within the jurisdiction of the- trial court, after the trial was commenced, if it appeared the evidence was insufficient, or that the law, as applied to the facts, developed at the trial, would not permit a conviction, to discharge the defendant, but, in advance of the trial, as in this case, it was not competent for the court of its-own motion, and against the protest and objection of the district attorney, to dismiss the cause and discharge -the defendant. At that stage of the proceedings the district attorney was-the only one who could order the proceedings discontinued,— People v. District Court, 23 Colo. 466; Gray v. District Courts 42 Colo. 298. [288] For the reason that in our opinion the court erred in dismissing the action, the judgment is reversed and the cause remanded for further proceedings according to law. ' Reversed and Remanded. Decision en- banc. Chief Justice Musser, Mr. Justice Scott and Mr. Justice Bailey dissent.