On Petition for Rehearing. In the light of plaintiff's petition, we have re-read the record and examined the authorities anew. We conclude, as in our previous study, that plaintiff failed in his proof. *Page 39
Plaintiff insists we overlooked his contention that since the jury in the county court, unlike the jury in the justice court, failed to fix the punishment to be imposed, the county judge was without power to adjudge any penalty. Sections 6194 and 6196, C. L. '21, and Fuqua v.People, 10 Colo. App. 62, 48 Pac. 1053, are again called to our attention. The point was not overlooked, but, as said in the opinion, since error was not brought in the proceeding where judgment was pronounced, it was not reviewable. Because of plaintiff's insistence that we clarify our opinion, however, and his professional assurance that the bar generally is interested, we direct attention to section 6699, C. L. '21, which provides that the penalty for assault and battery shall be, "imprisonment in the county jail for a term not exceeding six months, or fine not exceeding one hundred dollars." Sections 6194 and 6196, cited by plaintiff, and section 6699, were considered in People v. Youngberg, 53 Colo. 322, 326, 327,124 Pac. 745, and Vickers v. People, 30 Colo. 68,69 Pac. 511. In the Youngberg case we said: "The statutory provisions concerning the appeal bond which provided for the payment of fine and costs does not limit the jurisdiction of the county court in * * * the kind of penalty to be imposed on appeal by trial de novo." In the Vickers case, a prosecution for assault and battery begun in justice court, and where there was conviction, defendant appealed to the county court. There a jury found the defendant guilty, but as in plaintiff's prosecution, did not fix the penalty. The county judge sentenced the defendant to ninety days in jail and gave judgment against him and his appeal bond sureties for costs. Vickers' counsel contended that "the judge had no power to pass any sentence under the verdict, and that the verdict is not sufficient to support any judgment of the court," citing the Fuqua case. This court affirmed the judgment adjudged against Vickers by the county judge, saying, "that in a criminal case on appeal, the county court has *Page 40 authority to impose the sentence of imprisonment prescribed by statute." It seems unnecessary to state, for the Vickers review makes it plain, that the inquiry of the court of appeals in the Fuqua case did not go to the power of the county court to impose a fine, as such, under section 6699, but to the power to assess a fine pursuant to section 6196, where the fine had not been assessed by the jury, and make such imposition the basis of "a judgment against the principal and surety on an appeal bond to the county court." It seems clear that in imposing sentence against plaintiff here, the county court proceeded under section 6699, as interpreted in the Youngberg and Vickers opinions.
There is not justification for detailed discussion of other points claimed to have been overlooked by the court. All were considered and resolved as by the trial court. The petition for rehearing is denied.
MR. CHIEF JUSTICE ADAMS and MR. JUSTICE CAMPBELL concur.