Gallegos v. People

Full title: GALLEGOS v. THE PEOPLE

Court: Supreme Court of Colorado. En Banc

Date published: Jul 2, 1951

234 P.2d 619 (Colo. 1951)

234 P.2d 619

Opinion

No. 16,650.

Decided July 2, 1951.

Plaintiff in error was found guilty of the crime of grand larceny.

Affirmed.

1. CRIMINAL LAW — Practice and Procedure — New Trial. "It is well-settled law in this [Colorado] jurisdiction that after the expiration of the term of the district court at which a judgment is pronounced, as well as the affirmance of the judgment by this [Supreme] court, the district court is without jurisdiction to entertain a motion for a new trial."

Error to the District Court of Montrose County, Hon. Dan H. Hughes, Judge.

Messrs. MOYNIHAN-HUGHES-SHERMAN, Mr. HOWARD S. BJELLAND, for plaintiff in error.

Mr. DUKE W. DUNBAR, Attorney General, Mr. H. LAWRENCE HINKLEY, Deputy, Mr. NORMAN H. COMSTOCK, Assistant, for the people.

MR. JUSTICE ALTER delivered the opinion of the court.

JOE GALLEGOS was found guilty of the crime of grand larceny, and, on March 20, 1950, sentenced to a term in the state penitentiary. Thereafter he sued out a writ of error, and on October 30, 1950, the judgment of the district court was affirmed by us without written opinion 122 Colo. 508, 223 P.2d 1045.

Defendant, on November 30, 1950, filed in the district court a motion for a new trial based upon newly discovered evidence, and thereafter, and on January 25, 1951, his motion was granted. On January 29, 1951, the district attorney filed a motion to annul and set aside the district court's order of January 20, 1951, granting defendant's motion for new trial based upon the ground that the district court was without jurisdiction to entertain defendant's motion or enter any order thereon. January 31, 1951, the district court set aside its order of January 25, 1951. On February 3, 1951, defendant filed a motion for rehearing on his motion for new trial, which motion was denied February 13, 1951.

We take judicial notice of the fact that March 20, 1950, was in the January, 1950, term of said district court in Montrose County, Colorado, which term expired on the first Monday in June, 1950. It is well-settled law in this jurisdiction that after the expiration of the term of the district court at which a judgment is pronounced, as well as the affirmance of the judgment by this court, the district court is without jurisdiction to entertain a motion for a new trial. Smith v. People, 120 Colo. 39, 206 P.2d 826.

Accordingly, the judgment is affirmed.