Julian v. People

67 Colo. 152

• Court: Supreme Court of Colorado
• Decided: September 15, 1919
• Docket: No. 9428
• Status: Published

Opinion

Opinion by

Mr. Justice Teller.

Plaintiff in error was convicted on a charge of having had in his home, in April, 1918, sixteen pints of whiskey; and brings error.

When the first witness was called by the state, counsel for defendant objected to the introduction of any testimony on the ground that the information charged no offense known to the laws of this state.

This objection was overruled and the case proceeded with the result above stated.

Counsel for plaintiff in error call attention to the fact that the law under which the prosecution was brought, chapter 82, Laws of 1917, does not make the keeping of intoxicating liquor in one’s home unlawful, the home being, in terms, exempted from the list of places in which liquor could not lawfully be kept.

The Attorney General does not controvert this position, but contends that the defendant, by failing to test the information by motion or demurrer, waived his right to be heard on the sufficiency of the accusation.

We agree with the authorities which he cites that the proper procedure is to raise the question before the trial by motion to quash, or after verdict by motion in arrest of judgment, but failure thus to proceed is not fatal.

There being no such offense as that with which plaintiff in error was charged, he could, by no act of his, give I'ne court jurisdiction to try him for such offense. Jurisdiction of the subject matter is given by law, and cannot be conferred by consent.

Morse v. People, 43 Colo. 118, 95 Pac. 285; 16 C. J., 176.

The cases cited involved waivers of technical rights where no question was raised as to jurisdiction, and hence are not in point. The court was without jurisdiction, and that fact may be shown at any stage of the case.

The judgment is reversed.

Reversed.

Chief Justice Garrigues and Mr. Justice Burke concur.