137 P.2d 673 | Colo. | 1943
Lead Opinion
delivered the opinion of the court.
Plaintiff in error, to whom we hereinafter refer as defendant, was found guilty by a jury in the district court of Teller county, of the larceny of fourteen head of neat cattle of the personal property of one Sumner Osborne, in violation of section 93, chapter 48, ’35 C.S.A., and he is here seeking ai reversal of the judgment of conviction which followed such verdict. The evidence of the people, which in the particulars hereinafter set out is uncontroverted, disclosed that on the morning of October 23, 1941, defendant and his brother John Cahill went to what is referred to in the evidence as the Sumner Osborne ranch, situate in Teller county, and drove fourteen head of cattle which were grazing thereon to a small pasture near defendant’s ranch in the neighborhood of Divide. There was no evidence that the Cahills had or claimed any ownership in, or right of possession to, such livestock. Eleven of these cattle were branded with a backward P inverted U brand and the remaining three with a Bar backward C brand. Previous to 1937 the first brand was duly recorded in the name of Earl Osborne — deceased in 1940 — a brother of Sumner Osborne; by reason, however, of default in the payment of the brand assessment in 1937 (§17, c. 160, ’35 C.S.A.), such brand was dropped from the records but never was recorded as belonging to any other person. The K Bar backward C brand was recorded as that of Fannie Osborne, the mother of Sumner Osborne.
As one ground for reversal defendant contends that the evidence was insufficient to prove the owner
The court refused to give an instruction tendered by defendant reading: “That it is necessary for the prosecution to prove by the evidence beyond a reasonable doubt, as in these instructions defined, the ownership of the cattle as charged in the information, and that if the prosecution fails to so convince you, you shall find the defendant not guilty.” Error is assigned to this ruling. Given Instruction No. 5 specifically detailed all of the elements of the crime charged including the essentialities of ownership and possession, and as a condition to conviction required proof thereof beyond a reasonable doubt. Having so generally instructed the jury concerning all the requisite components of the offense, it was not incumbent on the court to instruct specifically as to one of them alone. Grandbouche v. People, 104 Colo. 175, 89 P. (2d) 577; Henwood v. People, 57 Colo. 544, 143 Pac. 373, Ann. Cas. 1916 A, 1111.
In informing the jury of the definition of the criminal act charged, the court used the precise language of section 93, chapter 48, supra. This, defendant asserts, was erroneous in that the language of the statute contains the words “embezzle” * * *, “sell,” * * * “or in any manner unlawfully deprive the owner of the immediate possession” of any cattle, which terms
For the purpose of showing good character, in the sense of general reputation, defendant called two witnesses. The testimony of one, simply to the effect that defendant had always been “respected by almost everyone that has known him” clearly was inadequate to prove the general good reputation of defendant as a peaceable and law-abiding citizen. The other witness in a somewhat hypothetical manner did testify, however, that defendant’s reputation in such respects was good. Defendant tendered, and the court refused to give, an instruction to the effect that since defendant had introduced evidence of his good character, the jury should consider that evidence “together with all other evidence
The sheriff and undersheriff of El Paso county were permitted to relate to the jury a confession of defendant amounting to a full acknowledgment of his part in the commission of the criminal acts herein charged, allegedly made orally in the El Paso county jail in the presence of the district attorney, John Cahill, defendant’s brother, and themselves on November 14. Counsel for defendant objected to the admission of the
Considering these contentions categorically, it is well established that a confession voluntarily made is not invalidated or made inadmissible in evidence by reason of the failure of the officers to inform the defendant that his confession might be used against him. Reagan v. People, 49 Colo. 316, 112 Pac. 785; Rogers v. People, 76 Colo. 181, 230 Pac. 391. It is further to be observed in this connection that here it was testified for the people, that in advance of his confessing, the defendant so had been informed by the district attorney. The fact that defendant was in custody at the time he made the statement, in itself, does not render the evidence incompetent (Reagan v. People, supra), nor is evidence of a confession “rendered inadmissible merely by the fact that it was obtained during an undue delay between arrest and the time when accused was brought before the court; by the fact that when it was made persons in authority were present * * * , or that he was
The affidavit of defendant does not so much as suggest that upon any occasion he was questioned continually to the point of physical or mental exhaustion or that “third degree” methods in any form were attempted by the officers having him in charge. The fact that -he was accused of the crime charged or of other offenses by the officers would not render evidence of the confession inadmissible. Osborn v. People, 83 Colo. 4, 262 Pac. 892. The assertion, if true, that defendant was told of the disappearance of his property, in the absence of some promise by the officers tending to alleviate his anxiety if he should confess, which is not even hinted, obviously would not render his confession involuntary.
Defendant finally assigns error upon the basis that his counsel was unduly restricted in cross-examination of witnesses for the people with reference to defendant’s state of mind at the time he confessed. A careful examination of the record convinces us that this contention is without merit.
The judgment is affirmed.
Mr. Justice Hilliard dissents.
On Petition for Rehearing.
Dissenting Opinion
dissenting.
I regard the reception of “defendant’s confession” in evidence under the circumstances presented, as gravely
In Osborn v. People, 83 Colo. 4, 29, 262 Pac. 892, 901, Mr. Justice Butler said: “This court, on repeated occasions, has said that, to be admissible, a confession must be voluntary, and that the question of admissibility is for the court.” In support of the doctrine thus stated, the distinguished jurist cited an array of Colorado cases, among them the early case of Fincher v. People, 26 Colo. 169, 56 Pac. 902, where, speaking through Mr. Justice Gabbert, we said: “It was the province of the court alone to determine whether the confession was made with that degree of freedom which would render it admissible as evidence * * *, the usual practice being to determine its admissibility as a preliminary question, by hearing all the evidence touching the subject of its being voluntary. This rule rests upon the proposition that the competency of evidence is a legal question, which must be determined by the court, and its credibility by the jury.” Addressing himself further to the point, Mr. Justice Gabbert quoted from Greenleaf as follows: “* * * The material inquiry, therefore, is, whether the confession has been obtained by the influence of hope or fear applied by a third person to the prisoner’s mind. The evidence to this point, being in its nature preliminary, is addressed to the judge, who admits the proof of the confession to the jury, or rejects it, as he may or may not find it to have been drawn from the prisoner, by the application of these motives. This matter resting wholly in the discretion of the judge, upon all the circumstances of the case, it is difficult to lay down particular rules a priori, for the government of that discretion. The rule of law, applicable to all cases, only demands that the
“The admissibility of a confession, where it is challenged, is a question solely for the court after hearing, in the absence of the jury, all the evidence on each side respecting the manner in which the confession was obtained; and the court is necessarily vested with a large discretion in determining the matter, a discretion, however, which should be exercised with great care to the end that the due and proper enforcement of the law on the one hand be not impeded, and that no injustice be done the defendant on the other.” Berry v. State, 4 Okl. Cr. 202, 111 Pac. 676, 31 L.R.A. (N.S.), 849. See, 22 C.J.S., pp. 1458, 1468, §§834, 838. “The admissibility of a confession being dependent upon its voluntary character, the question of whether or not it is voluntary must be decided in the first instance, when the offer to introduce the testimony is made, provided and assuming that an objection to the effect that the confession is inadmissible because involuntary is properly interposed. The practice in most jurisdictions, upon such offer of introduction and objection timely and properly made, is to conduct á preliminary examination of the evidence of the prosecution and defense, in the absence of the jury, to determine the admissibility of the confession. This determination is made by the trial court, upon the recognized and accepted principle that the voluntary or involuntary character of the confession is a question of law, to be determined by the trial judge, from the facts
In Underhill’s Criminal Evidence, 3rd edition, page 309, section 217, the author states: “The preliminary question, was the confession voluntary? bearing directly upon its competency as evidence, must be, according to the majority of the cases, decided by the court, as a mixed question of law and fact. And the court may hear evidence from both sides to show the circumstances under which the confession was made.” See, also, page 313, section 219, where Underhill further says: “In any case it is his [defendant’s] right to show by preliminary evidence that the confession was not voluntary, and it is the duty of the court, in determining the competency of the confession, not only to consider the evidence for the state, showing the confession was voluntary, but the evidence elicited by the accused to prove the contrary in his favor as well. A refusal, before the confession is admitted, to allow counsel for the prisoner to cross-examine the witness as to the voluntary character of the
The quotation in the court opinion from section 817, 22 C.J.S., p. 1433, consists of discussions relative to the admissibility of confessions obtained or given under varying circumstances, and not as to the manner of the ascertainment thereof. So far as the cases cited in support of the quoted text make disclosure, there were preliminary inquiries by the trial judge, and the questions for decision on review did not have to do with the procedural rule involved here, but rather as to whether the judges, having proceeded to make preliminary inquiry in accordance with the rule for which defendant contends on this review, had rightly resolved in favor of the
The case of Buschy v. People, 73 Colo. 472, 216 Pac. 519, examined in the light of its record, is only understandable on the theory then widely entertained that a “miserable bootlegger” is beyond the pale. It cites section 822, 1 Wigmore on Evidence (1st ed.), which, like section 817, 22 C.J.S., pp. 1424, et seq., referred to in the court opinion here, discusses the admissibility of confession in cases where the trial court, first proceeding preliminarily according to the rule, had found them to be voluntary. If the learned author of the opinion in the Buschy case had had his attention called to section 861, same volume of Wigmore, he would have found the rule that controls trial judges as they go about ascertaining the facts relative to confessions, offered and challenged, clearly, as here, and there, too, as I respectfully suggest. In the Buschy opinion the court cited O'Donnell v. People, 71 Colo. 113, 204 Pac. 330. But there, unlike the Buschy case and the one here, the opinion recites that, “When offered [the confession] in evidence the jury was excused and witnesses examined by the court as to the
Although I shall not pause to state the situation in detail, I call attention to the fact that in addition to refusing to determine in the absence of the jury the question of whether the alleged confession was voluntary, the restricted cross-examination imposed by the court on counsel as he sought to elicit full revelation from the officers who testified in chief with relation thereto, operated to prejudice defendant’s case before the jury. In short, the court would neither make investigation on its own account, nor permit reasonably full presentation to the jury. The first error, major in every particular, and not forgivable on review, should constitute unquestioned reason for reversal; and to correct the second error, born of the first, should add to the enthusiasm of reviewing well-doers. “The history of liberty has largely been the history of observance of procedural safeguards.” McNabb v. United States, 318 U. S. 332, 63 Sup. Ct. 608, 87 L. Ed. 579.
Lead Opinion
PLAINTIFF in error, to whom we hereinafter refer as defendant, was found guilty by a jury in the district court of Teller county, of the larceny of fourteen head of neat cattle of the personal property of one Sumner Osborne, in violation of section 93, chapter 48, '35 C.S.A., and he is here seeking a reversal of the judgment of conviction which followed such verdict. The evidence of the people, which in the particulars hereinafter set out is uncontroverted, disclosed that on the morning of October 23, 1941, defendant and his brother John Cahill went to what is referred to in the evidence as the Sumner Osborne ranch, situate in Teller county, and drove fourteen head of cattle which were grazing thereon to a small pasture near defendant's ranch in the neighborhood of Divide. There was no evidence that the Cahills had or claimed any ownership in, or right of possession to, such livestock. Eleven of these cattle were branded with a backward P inverted U brand and the remaining three with a K Bar backward C brand. Previous to 1937 the first brand was duly recorded in the name of Earl Osborne — deceased in 1940 — a brother of Sumner Osborne; by reason, however, of default in the payment of the brand assessment in 1937 (§ 17, c. 160, '35 C.S.A.), such brand was dropped from the records but never was recorded as belonging to any other person. The K Bar backward C brand was recorded as that of Fannie Osborne, the mother of Sumner Osborne. *32
After placing the cattle in the pasture last mentioned, the two Cahills, accompanied by one Betts who testified for the people, drove to Denver in defendant's truck where in a brand book there procured, defendant checked up on the P inverted U brand. As would be accounted for by the assessment default we have mentioned, defendant was unable to find this brand recorded to Earl Osborne or anyone else. The three immediately returned to the place where the cattle had been left, drove them to defendant's ranch, loaded them in his truck and proceeded to the Denver Stock Yards where they arrived about 1 o'clock a.m. on the 24th. On the way, at defendant's direction, Betts fabricated a bill of sale for a portion of the cattle from Fannie Osborne to Earl Osborne, to which he forged Fannie Osborne's name. Upon reaching the stock yards they consigned the cattle to Drinkard Emmert, commission merchants, in the name of Earl Osborne. Defendant and his associates then retired to a hotel where they registered under assumed names. The next day they went to the office of Drinkard Emmert and secured the proceeds from the sale of the cattle in the form of a check for $545.35 payable to Earl Osborne. By forging the endorsement of Earl Osborne thereon the Cahills procured cash in the amount stated, which was divided between them. The two Cahills were arrested on October 30, 1941, in Colorado Springs, and at the request of the sheriff of Teller county were incarcerated in the El Paso county jail until November 19, 1941, when they were removed to Cripple Creek. It further appeared from the evidence that Sumner Osborne, the alleged owner of the cattle involved, disappeared from his usual place of abode about October 17, 1941, and still was missing at the time of the trial. It may be inferred from the record that at one time defendant was suspected of being implicated in Osborne's unexplained disappearance.
[1, 2] As one ground for reversal defendant contends that the evidence was insufficient to prove the ownership *33
and possession by Sumner Osborne of the cattle on October 23 as alleged in the information. In this connection it is argued that the circumstance that the brands borne by these cattle were recorded to Earl and Fannie Osborne is prima facie proof under our statute (section 10, chapter 160, '35 C.S.A.), that they, and not Sumner, were the owners of the cattle. While, as contended, a recorded brand is prima facie evidence of the ownership of the animals so branded, it is well established that it is not conclusive of such fact. Howry v.Sigel-Campion Co.,
[3] The court refused to give an instruction tendered by defendant reading: "That it is necessary for the prosecution to prove by the evidence beyond a reasonable doubt, as in these instructions defined, the ownership of the cattle as charged in the information, and that if the prosecution fails to so convince you, you shall find the defendant not guilty." Error is assigned to this ruling. Given Instruction No. 5 specifically detailed all of the elements of the crime charged including the essentialities of ownership and possession, and as a condition to conviction required proof thereof beyond a reasonable doubt. Having so generally instructed the jury concerning all the requisite components of the offense, it was not incumbent on the court to instruct specifically as to one of them alone. Grandbouche v.People,
[4] In informing the jury of the definition of the criminal act charged, the court used the precise language of section 93, chapter 48, supra. This, defendant asserts, was erroneous in that the language of the statute contains the words "embezzle" * * *, "sell," * * * "or in any manner unlawfully deprive the owner of the immediate possession" of any cattle, which terms *35
were not included in the information. It is argued that from the use of the language of the statute itself the jury may have found defendant guilty under circumstances not charged in the information. This point is not well taken. By Instruction No. 1 the jury was given verbatim the charge as contained in the information, and Instruction No. 5 again reiterated the precise elements of the offense as alleged. "As a general proposition the objection that instructions were given in the language of the statute is not tenable." Kent v. People,
[5, 6] For the purpose of showing good character, in the sense of general reputation, defendant called two witnesses. The testimony of one, simply to the effect that defendant had always been "respected by almost everyone that has known him" clearly was inadequate to prove the general good reputation of defendant as a peaceable and law-abiding citizen. The other witness in a somewhat hypothetical manner did testify, however, that defendant's reputation in such respects was good. Defendant tendered, and the court refused to give, an instruction to the effect that since defendant had introduced evidence of his good character, the jury should consider that evidence "together with all other evidence *36
in the case, because the law presumes that a person of such reputation is less likely to commit a crime than a person of a different reputation." The record does not disclose whether the refusal was grounded upon the theory that the proof was insufficient to justify an instruction on the subject, or upon the premise that the instruction legally was in improper form. Whatever was the view of the trial court its action was justifiable because of ambiguous and erroneous language in the tendered instruction which, instead of merely leaving it to the jury to attach such importance to the evidence of good character as they thought proper, should have informed them expressly of the scope of their power in the exercise of a sound discretion with respect thereto. See, People v. Elliott,
[7] The sheriff and undersheriff of El Paso county were permitted to relate to the jury a confession of defendant amounting to a full acknowledgment of his part in the commission of the criminal acts herein charged, allegedly made orally in the El Paso county jail in the presence of the district attorney, John Cahill, defendant's brother, and themselves on November 14. Counsel for defendant objected to the admission of the *37
confession on the ground that it was involuntary, and requested a preliminary inquiry out of the presence of the jury with respect thereto. It is strenuously contended that the failure of the court to grant this request and the reception of the testimony detailing the confession without such a preliminary hearing, constituted reversible error. Generally, there should be an adherence to the procedure requested by defendant and, if proper objection is made when evidence of the confession is about to be submitted, it is error to allow such evidence to go to the jury until the court, after a hearing out of the presence of the jury, has determined preliminarily that the confession was voluntary. Corollarially, it also is certain that a failure to observe the procedural requirements of the general rule is not fatal when the defendant is not prejudiced thereby. See, Buschy v.People,
[8, 9] Considering these contentions categorically, it is well established that a confession voluntarily made is not invalidated or made inadmissible in evidence by reason of the failure of the officers to inform the defendant that his confession might be used against him.Reagan v. People,
The affidavit of defendant does not so much as suggest that upon any occasion he was questioned continually to the point of physical or mental exhaustion or that "third degree" methods in any form were attempted by the officers having him in charge. The fact that he was accused of the crime charged or of other offenses by the officers would not render evidence of the confession inadmissible.Osborn v. People,
Defendant finally assigns error upon the basis that his counsel was unduly restricted in cross-examination of witnesses for the people with reference to defendant's state of mind at the time he confessed. A careful examination of the record convinces us that this contention is without merit.
The judgment is affirmed.
MR. JUSTICE HILLIARD dissents.
On Petition for Rehearing.