penitentiary. Of the errors assigned, only two are considered:

*

* *

1. The language of this information is that "E. A. Hockley * did then and there, unlawfully, willfully, feloniously, and of his malice aforethought, make an assault with intent then and there upon the part of said E. A. Hockley to kill and murder the said," etc. In the court below, defendant moved to quash the information upon the ground that it did not charge any offense punishable under any statute of the state. The motion was overruled. The contention of counsel, as we understand it, is that there is no statute in this state making it a crime to commit "an assault with intent to kill," but there is a statute prohibiting an "assault with intent to murder." The words "to kill," in this information, are said to be the vital ones; the position being that the information charges defendant merely with "an assault with intent to kill." The contention is entirely without merit. If necessary, the words "to kill" might be treated as surplusage, and enough would be left to constitute a good pleading. But section 1433, Mills' Ann. St., says that "it shall be sufficient in every indictment for murder to charge that the defendant did feloniously, willfully, and of his malice aforethought kill and murder the deceased." If in a charge of murder it is proper to use the expression "kill and murder," then it logically follows that, in charging assault with intent to commit murder, the same words may be employed as in this information was done. The motion to quash was properly overruled.

2. In July, 1900, the defendant was, by a justice of the peace of San Miguel county, recognized to appear and answer this charge at the next ensuing November term of the district court of that county. On the 27th day of November these informations were filed, and on the 30th day of that month defendant was arraigned, and pleaded "Not guilty." On the same day he filed a verified application for a continuance until the next term of court upon the ground of the absence of material witnesses. The court refused to continue the cause for the term, but postponed the trial until the 5th day of the following December, to enable defendant to secure the presence of his witnesses. Defendant immediately had subpoenas issued for them, one of which was served on one witness who appeared at the trial. The other subpoena was returned by the sheriff of Montrose county to whom it was sent, not served, with his further statement to the clerk of the court in which the action was pending that the witness desired was then supposed to be somewhere in Garfield county, Colo. Defendant then, on the 5th day of December, and before the cause was called for trial, filed his second verified petition for a continuance until the next term of court, in order to obtain the attendance of the absent witness. No claim was made in the court below, or here by the attorney gen69 P.-33

eral, that the evidence of the witness was immaterial, or that there is any defect in the application in any respect, except that it showed a lack of diligence. Indeed, the sufficiency of the showing is virtually conceded, except in the particular noted; and in denying it the trial court expressly predicated its ruling upon the fact that defendant had had all the time since he was bound over by the justice of the peace until the day of trial to look after his witnesses, and, merely because defendant had not made preparations for his trial before the filing of the informations, the court declared that he had not exercised the diligence which the law requires. The granting or refusing of applications for a continuance rests largely in the discretion of the trial court, and the doctrine established in this state is that only for an abuse of such discretion will a reversal be had. No authority has been called to our attention, nor have we been able to find one, which holds it to be the duty of a defendant in a criminal case to make preparations for his trial before an indictment has been found or an information filed against him. Various reasons for this ruling are given by the courts, some of which put it upon the ground that before the filing of an indictment or an information the defendant may not have compulsory process for his witnesses. Others declare that even if compulsory process may be had before that time, and though defendant may have his witnesses, like those of the prosecution, recognized to appear at an ensuing term of the court having jurisdiction to try the charge, his omission to take out such process before an indictment found or information filed cannot be considered as negligence or exhibiting a want of due diligence, so as to deprive him of the full benefit of his affidavit for continuance, which shows that he is unable to have his witnesses present at the first term. Whatever be the reason, it seems clear that there was no obligation resting upon defendant to make preparations for his trial and to secure the attendance of his witnesses before the informations were filed against him; and, since there is no question that he diligently moved immediately thereafter, it was plainly wrong for the trial court to refuse the continuance asked for. The following among other authorities are to this effect: U. S. v. Moore, 26 Fed. Cas. 1308 (No. 15,805); Allen v. State, 10 Ga. 85, 91; Dinkens v. State, 42 Tex. 250; State v. Wood, 68 Mo. 444; Salisbury v. Com., 79 Ky. 425, 430; Dowda v. State, 71 Ga. 481; Blige v. State, 20 Fla. 742, 51 Am. Rep. 628; Newman v. State, 22 Neb. 355, 35 N. W. 194; 4 Enc. Pl. & Prac. p. 845 et seq.

Other rulings are discussed by counsel, some of which are important, but they are not likely to occur at another trial, and so we do not pass upon them.

For the error of the court in refusing a continuance, the judgment is reversed, and the cause remanded for a new trial. Reversed.

(30 Colo. 40) PLATTE LAND CO., Limited, v. HUBBARD, (Supreme Court of Colorado. June 2, 1902.) APPEAL APPEAL TO COURT OF APPEALS-AFFIRMANCE SUPREME COURT-ERROR ΤΟ DISTRICT COURT BY APPELLANT-STATUTES. 1. The constitutionality of the act creating the court of appeals will not be determined in a cause in which it is not necessary to its disposition, and there is not a full bench, and the court of appeals is not a party.

2. Where, on appeal to the court of appeals, there is an affirmance, appellant cannot sue out a writ of error from the supreme court to the judgment of the district court.

Error to district court, Arapahoe county. Action by John M. Hubbard against the Platte Land Company, Limited. From a judgment for plaintiff, defendant brings error. Motion to dismiss writ. Writ dismissed.

The defendant in error. Hubbard, as plaintiff in an action pending in the district court of Arapahoe county, recovered a judgment against plaintiff in error, the Platte Land Company, Limited, defendant in that action, in the sum of about $1,600. The company prosecuted an appeal to the court of appeals, which resulted in an affirmance of the judgment. By the express terms of the act creating that court, its appellate jurisdiction in a case like this was made final and conclusive. A writ of error was then sued out by the company in this court, directed to the clerk of the district court, commanding him to certify up a full record of the proceedings in the case. The clerk sent up a copy of the pleadings and the judgment only; the bill of exceptions, containing the evidence and the rulings of the court during the trial, being included in, and forming a part of, the complete transcript of the record remaining in the office of the clerk of the court of appeals, where it had been lodged by the plaintiff in error here (appellant there) in the prosecution of its appeal. Plaintiff in error thereupon filed a motion in this court for an order upon the clerk of the court of appeals to send here the bill of exceptions for the purpose of making the same a part of the record in this cause, to be reviewed upon the writ of error herein before sued out. The defendant in error then entered his motion to quash the writ of error for the reason that the record already in this court disclosed that the judgment here sought to be reviewed is for less than $2,500, that there is present in the case no element that gives to this court appellate jurisdiction under the statute relating thereto, and that the judgment thus sought to be reviewed has been affirmed by the court of appeals in an appeal by the very party who asks for a second review, and such determination is final.

Hugh Butler, for plaintiff in error. Wells & Taylor and R. T. McNeal, for defendant in

error.

CAMPBELL, C. J. (after stating the facts). The learned counsel for plaintiff in error at

tacks the constitutionality of the act of our general assembly by which the court of appeals was created. He asserts its invalidity as a whole, and, if that is ruled against him, he contends that, if the statute is not void in its entirety, it is so in so far as it purports to make the appellate jurisdiction of the court of appeals final and conclusive in any case. In Feople v. Richmond, 16 Colo. 274, 26 Pac. 929, in an original proceeding in the nature of quo warranto, in which the court of appeals itself was the respondent, this court, in an able opinion by Chief Justice Helm, held, as generally understood by the profession, that the act there and now here again attacked was constitutional; although, in a previous opinion in response to a legislative question, it held similar legislation, as it is now said, obnoxious, to the organic act. In re Constitutionality of a Court of Appeals, 15 Colo. 578, 26 Pac. 274. In an elaborate argument exhibiting great research counsel for plaintiff in error again seeks to have the question commonly supposed to be concluded reopened, contending, among other things, that a question of such vast importance should not be deemed settled until determined right, and that the objections which he now makes to the act were not directly ruled upon by this court in the Richmond Case. If it were necessary to pass upon the questions here argued with such distinguished ability, they would demand the most earnest and serious consideration at the hands of the court. But, in the view we take of the matter, the plaintiff in error is not in a position to have determined the main question which his counsel discusses. Mr. Justice STEELE is disqualified to participate in this decision by reason of the fact that he was counsel for one of the parties touching certain matters out of which the present litigation arose; and in the absence of a full bench, and in a case where the court of appeals itself is not a party, we would be disinclined to pass upon the constitutionality of the act which is the source and origin of its jurisdiction, and would not do so unless absolutely necessary to a determination of the case in hand. Defendant in error contends that this is a collateral attack, and for that reason alone should be ignored. Be that as it may, it is clear that the necessities of the present case do not require a decision upon it.

These motions must be determined against the plaintiff in error upon other grounds. The land company prosecuted in the court of appeals its appeal from the judgment of the district court. It was not forced there as an unwilling party by any act of appellee, though that may not be material. It submitted itself, however, to the jurisdiction of the court of appeals, and the judgment of the latter affirming the ruling of the district court has not been directly attacked. No attempt by the company has been made to have the judgment of affirmance directly reviewed on appeal, or writ of erorr, or otherwise, by the

supreme court. We must not be understood as intimating that, had such attempt been made, it would have been successful, or that the jurisdiction of this court could thus be invoked. But we do say that plaintiff in error may not disregard the judgment pronounced by the court of appeals, which was induced by its own act, and sue out a writ of error in this court to the judgment of the district court, and thus indirectly have considered, and possibly overturned, the judgment of the court of appeals. It cannot be permitted thus to disaffirm its own voluntary act, and, if it is entitled to any relief from the judgment of the court of appeals, it cannot get it in the manner here attempted. Counsel for plaintiff in error says, however, that the objections just mentioned can be raised by defendant in error only by a plea in the nature of a plea in abatement, which was not interposed. Technically that may be true; and it may be, as counsel contends, that a plea in abatement is necessary to bring into the record what is not already there as a basis for a motion to quash the writ. However that may be, the facts upon which the objection of defendant in error is predicated. and upon which we base our decision, sufficiently appear in the record already before

us.

For the reasons given, the motion of plaintiff in error for a rule upon the clerk of the court of appeals is denied, and the motion of defendant in error to quash the writ of error is sustained. Writ of error dismissed.

STEELE, J., not participating.

(29 Colo. 535)

QUO

PEOPLE ex rel. POST, Atty. Gen., v. OWERS. (Supreme Court of Colorado. May 5, 1902.) WARRANTO - PLEADING ALLEGATIONS OF ANSWER-EVIDENCE-BURDEN OF PROOF SUFFICIENCY ELIGIBILITY RESIDENCE DECLARATION OF INTENTION-CONCLUSIVENESS-ABANDONMENT OF OFFICE-RESIDENCE OF JUDICIAL OFFICERS-ABANDONMENT-ABSENCE ON ACCOUNT OF HEALTH.

1. In quo warranto by the state to oust defendant from an office to which he has been elected, defendant must in his answer allege with particularity all the facts essential to his eligibility at the time of his election, and to his right to continue to hold such office down to the institution of the proceedings.

2. In quo warranto by the state the burden of proof is on defendant to establish his right to hold the office in controversy.

3. Evidence in quo warranto to oust a district judge considered, and held to show that defendant was eligible to the office, under Const. art. 6, § 16, requiring that a person, to be eligible to such office, must be an elector of the district, though it appeared that, for three or four years prior to his election, defendant, under advice of physicians, had lived most of his time outside of the district.

4. Evidence in quo warranto proceedings to oust a district judge considered, and held not to show an abandonment of the office, such as would disqualify defendant under Const. art. 12, § 2, providing that no person shall hold any state office without devoting his personal attention to its duties, though it appeared that

defendant, on the advice of physicians, was, and had been for some time, living as much as possible outside of his district.

5. The residence contemplated by Const. art. 6, § 29, requiring judicial officers to reside in their respective districts, counties, etc., is actual, as distinguished from a legal or constructive, residence.

6. A naked declaration by a judicial officer of his intention to maintain his actual residence within his district, as required by Const. art. 6, § 29, is not conclusive of the question.

7. In quo warranto to oust a district judge, instituted eight months after his induction into the office, the fact that defendant had, on the advice of physicians, lived outside of the district as much as possible since his election, and for the same reason had not maintained his actual residence within such district, as required by Const. art. 6, § 29, was insufficient to show such a violation of the constitutional requirement as would require him to be ousted, though the date when he could resume his actual residence within the district was rendered indefinite on account of the difficulty in determining when his health would permit his return.

Quo warranto proceedings by the people, on relation of Charles C. Post, attorney general, against Frank W. Owers. Writ dismissed.

This information in quo warranto by the people of the state of Colorado, upon the relation of Charles C. Post, its attorney general, filed on the 9th day of September, 1901, charged that for eight months then last past the defendant, Frank W. Owers, had usurped and intruded into, and was unlawfully holding and exercising, the office of judge of the district court of the Fifth judicial district of the state of Colorado, and called upon him to answer by what warrant he claimed to hold and exercise the duties of the office. Without stating in detail the contents of the pleadings, it is sufficient to say that from the information, the answer, and the replication, it appears that defendant bases his right to the office upon the following grounds, all of which are traversed by the people, and they constitute the issues of fact to be determined by the court: First, that defendant possesses all the constitutional and statutory qualifications to hold the office in question, and that, at the general election held on the 6th day of November, 1900, he was elected thereto by a plurality of the legal votes cast, and afterwards the result of the vote was convassed by the proper canvassing board, and a declaration by it made that he was duly elected, and a certificate so stating was issued to him; second, that he has devoted his personal attention to the duties of the office; third, that after qualifying by taking the necessary oath he was on the 8th day of January, 1901, inducted into, and then entered upon the discharge of the duties of, the office, and since that time he has done nothing to disqualify him from holding the same, and that, in particular, he has continued to reside within the judicial district.

The cause was submitted upon an agreed statement of facts, which, so far as we deem them material, are here reproduced, substan.

tially as they are recited by defendant's counsel in their brief: "Defendant went to Lake county in 1879, and thereafter became a citizen and elector of that county, and resided there continuously from 1882 to November, 1894, and was at the general election in the last-named month and year elected judge of the Fifth judicial district for the term of six years, ending on the 8th day of January, 1901. He was eligible in every particular to be elected to said office, including the qualification of being an elector in said county and district, and he took the oath of office and did all other things required by law to enter upon the duties of and to hold said office, and in fact served and acted as judge of said district for the full term expiring on January 8, 1901. It is history that very serious labor troubles occurred in Lake county, beginning in June, 1896, and continued into the spring of 1897. The duties imposed on him by reason of said labor troubles resulted in the impairment of his health and in nervous prostration, and that as the result thereof he was unable to sleep in such high altitude, and he was advised by physicians that his health and life depended on his spending as much time as possible at an altitude less than Leadville,-preferably at sea level. Acting on said advice, and in the hope of regaining his health, he passed most of the time until May, 1898, whenever he considered the duties of his office permitted, at altitudes less than Leadville, and principally in Denver, and found that he could sleep better at lower altitudes. Defendant was married in October, 1897, at Washington, D. C., and shortly after such marriage brought his wife to Denver; living with her at the residence of Dr. Hershey, 1311 Sherman avenue, until April, 1898. In May, 1898, on the advice of his physicians, he went with his wife to Santa Barbara, Cal., which place is on the sea coast, where they remained five months, for the benefit of his health. Defendant, if called upon, would testify that on his return he found he was still unable to sleep over three or four hours a night at such altitudes as Leadville, and therefore continued to pass all the time he considered his official duties permitted in Denver, the altitude of which city is 5,000 feet less than that of Leadville. Upon their return they boarded at 1311 Sherman avenue, Denver, till June, 1899, when they, together with Dr. Hershey and family, rented and occupied the furnished house of Dr. Blickensderfer, in Denver, until the 1st of October, 1899; the two families keeping house therein, dividing the expenses between them. After leaving the Blickensderfer house, October 1, 1899, defendant rented a furnished house at No. 1320 Race street, Denver, and kept house and lived there with his wife until the end of October, 1899, when his wife went East, remaining there until February 1, 1900; and during his wife's absence defendant, when in Denver, boarded at the Denver Athletic Club.

In

February, 1900, defendant rented furnished apartments in the Turck Flats, corner Colfax and High streets, Denver, in which he and family kept house until July, 1900. During the months of July and August, 1900, defendant's wife was at Kiowa Lodge, near Bailey's, in Platte Cañon, Colorado, during which period defendant boarded at the Denver Athletic Club; and on her return, early in September, 1900, they lived at the family hotel known as the 'Vallejo,' No. 1420 Logan avenue, Denver. In December, 1900, defendant and family moved into one of the apartments known as 'The Maples,' No. 1753 Grant avenue, Denver, renting it unfurnished, and which his wife furnished, and they kept house therein, and ever since the time last mentioned have continuously occupied said apartments, up to the present time, renting the same from month to month, except during the months of May, June, July, and August, 1901, defendant's wife was in the East, and during those months he boarded at the Denver Athletic Club. That since February, 1900, and in 1901, and up to the time of filing the information herein, defendant has, when in Denver, occupied an office in said city at Nos. 67 and 68 Jacobson Building. Said rooms are rented and maintained by the Royalty Gold Mining & Milling Co., of which company defendant is secretary. This sign has during all said time been painted on the door of Room No. 68: "The Royalty Gold M. & M. Co.' And on room No. 67: "The General Jourdan Mining Co. Frank W. Owers.' The Denver City Directory for 1900 contains the following: 'Owers, Frank W., lawyer, 67-68 Jacobson Building.' And said directory for 1901 contains the following: 'Owers, Frank W., Sec. Royalty Gold Mining Company, 67-68 Jacobson Building, r. 1753 Grant Ave.' But defendant would testify that both said insertions were made without his knowledge or direction. From the date of defendant's marriage to the present time the wife and family of defendant have been in Lake county but once, and then for less than ten days, during which time she visited at the home of a friend in Leadville. For two years and nine months immediately preceding the filing of this information, and for more than two years prior thereto, whenever defendant was in Lake county he occupied as his sleeping room a room in the county court house, which said room is adjacent and adjoining to, and is a part of, the district court chambers. All the furniture in said court chambers (except that in the sleeping room), including carpets or rugs on said floors, is now the property of Lake county, and has been since on or about December 30, 1898, on which date the defendant sold the same to said county. All the furniture in the said sleeping room, including bedstead, bedding, bureau, washstand, and carpets, are the property of defendant, and are all the household goods owned by defendant in Lake county since the time aforesaid. Defendant

has paid no rent for such room, or either of them, in the court house, but the same were subdivided, arranged, furnished with bath and toilet conveniences, and are lighted, heated, and cared for, by the county commissioners, at the expense of Lake county. For two years and nine months prior to the filing of the information defendant did not lease, keep or maintain any house or dwelling place in the Fifth district, except as above stated, but he kept and now keeps his wardrobe in Denver, taking with him, whenever he goes into the Fifth district, sufficient clothing to meet the necessities of a short stay, except that he has always kept in Leadville what he considered sufficient personal linen and bed linen, blankets, etc., for his use when there, and he has always boarded and taken his meals at restaurants or hotels when in Leadville, and has had no regular boarding place during that time. It thus appears that prior to his marriage defendant occupied rooms in the court house in Leadville by arrangement with the county commissioners, which rooms were furnished by defendant. While he was in Denver for his health, as above stated, he became married, and has kept his wife and family and has himself stayed in Denver as much as possible. That soon after his marriage he sold to Lake county the furnishings of one of the rooms he had theretofore occupied, reserving the furniture in the sleeping room; keeping therein sufficient personal conveniences, and sleeping therein when in Leadville, and taking his meals where convenient. Defendant has not returned any tax schedule of taxable property of any kind owned by him in Lake county to the assessor thereof for either of the years 1898, 1899, or 1900, nor has he paid nor has he been assessed any tax on personal property in Lake county for either of those years. But respondent has no property in said county or district subject to taxation, other than real estate. Defendant paid and there was assessed against him no poll or per capita tax in said county or district. Defendant has no property interest outside of the Fifth district. During a period of two years and nine months immediately preceding the filing of this information the defendant has not been personally present within the Fifth judicial district to exceed three hundred days, and that fifty of said days were devoted by him exclusively to matters connected with his candidacy for the office of district judge during a portion of the summer and fall months of 1900. During said last period defendant, upon the adjournment of court in any county of his district, when there was no other business requiring his presence in another county thereof, or unless he stayed longer for the transaction of his private business in the district, would immediately return to Denver, except in a few instances where he proceeded to other parts of the state. A schedule of the days when he actually held court in his district for 1899, 1900, and part of 1901

appears in the printed record, also the dates when he held court in other districts, which show that from two-thirds to three-fourths of his time were spent out of his district. Defendant's residence on the list of registration of voters in Lake county in 1896 appears as 'Court House,' and the same as to 1899 and 1900, and the same residence appeared in the published list of candidates when defendant was a candidate in 1900. Defendant would testify that from 1882 to the present day he has always described himself in deeds and other legal documents as being of Lake county, Colorado; that he has always so registered at hotels when traveling; that since said year he has rented and kept a post-office box in the Leadville post office; that his personal envelopes are, and always have been since 1882, stamped and printed so that his letters may be returned to Leadville, Colo.; and that on the 6th day of November, 1900, and for more than two years prior thereto, and that on the 8th day of January, 1901, and for more than two years prior thereto, he has claimed and now claims Leadville, Lake county, Colo., as his domicile and place of residence, and that he did reside during said period and now resides in Lake county, and ever since said dates he has resided in said county and district; that said place is his home and domicile; that, whenever he has voted and exercised his prerogatives as a citizen of the United States and of the state of Colorado, he has so voted in Leadville, Lake county, Colo., and that he has never, since 1882, voted or exercised any prerogative of said citizenship elsewhere; that he voted since 1892 at Leadville at all elections,

city, county, and state,-except at the spring election of 1896, the elections in 1899, and the spring election of 1900; and that when he did not vote he was re-registered, when his name was dropped for such failure."

Chas. C. Post, Atty. Gen., Clinton Reed, John M. Waldron, and John M. Maxwell, for petitioner. Patterson, Richardson & Hawkins, Thomas, Bryant & Lee, and Harvey Riddell, for respondent.

CAMPBELL, C. J., after the foregoing statement of facts, delivered the opinion of the court.

The jurisdiction of this court to entertain quo warranto proceedings to oust from office a constitutional officer subject to impeachment is challenged by defendant. It is contended that such officer can be removed only by impeachment proceedings by the general assembly. We shall, however, assume that this court is vested with jurisdiction over the charges herein preferred, and proceed to dispose of the cause on its merits.

It is conceded that in jurisdictions where common-law rules and principles of procedure prevail, as is the case in Colorado, where original proceedings are brought in the su