*1 Moy- Fangman not come under this case does because I second, cases; because ers, its supra, supporting state legisla- acts of the the 1933 and 1939 believe decision ture, enacted subsequent both third, because case, are Fangman-Moyers applicable; law it in effect holds is so written that opinion enact future care might legislature in the Fangman- the effect of modifying opinion fourth, and, because Moyers case be inapplicable; would in regard the decision is to throw law the effect of uncer- school children into chaos to residence of tainty. Goudy and Mr. Justice join
Mr. Justice Knous dissenting this opinion. 15,153.
No. People. v. The
Cahill 673) (137 [2d] P. Rehearing May denied 1943. 1943. Decided March *2 plaintiff in error. Mr. A. Morrison, R. Attorney Mr. H. Law- General,
Mr. Gail L. Ireland, Deputy, assist- James S. Mr. Henderson, Hinkley, rence people. ant, for the
En Banc. the court. the opinion Mr. Justice Knous delivered refer hereinafter error, we whom Plaintiff guilty by in the district defendant, was found larceny county, head fourteen court of Teller personal property Sumner of one of neat cattle of the chapter C.S.A., ’35 Osborne, violation section judgment seeking and he is here ai reversal The evidence verdict. conviction followed such which *3 people, particulars hereinafter set in which morning uncontroverted, out is on disclosed brother John October defendant and his as the to in the evidence Cahill went is referred to what county, and ranch, in Teller Sumner Osborne situate grazing head of cattle which were drove fourteen pasture ranch in the thereon to a near defendant’s small neighborhood There no of Divide. was right any ownership in, had or Cahills or claimed possession Eleven of cattle to, such livestock. these were P inverted U and the branded with a brand backward remaining Bar C brand. three with a backward duly to was recorded in Previous 1937 the first brand Osborne—deceased in 1940—a the name of Earl brother Osborne; reason, however, of default in of Sumner (§17, payment assessment in 1937 c. brand C.S.A.), dropped such from the 160, ’35 brand belonging as records but never was recorded person. The K was re- other Bar backward C brand Osborne, Fannie the mother of Sumner corded that of Osborne. pasture placing mentioned, cattle in last
After
accompanied
one Betts who testi-
Cahills,
two
people,
fied for the
Denver in defendant’s truck
drove to
procured,
in
where
a brand
there
book
up
checked
on the P
U
As
inverted
brand.
would be
by the
accounted for
assessment default
have men-
we
tioned, defendant
unable to find this brand recorded
anyone
immediately
to Earl Osborne
else. The
three
place
left,
returned
where
cattle had been
them
them
ranch,
drove
to defendant’s
in his
loaded
proceeded
truck and
they
to the Denver Stock Yards where
arrived about
o’clock
on the 24th.
a.m.
On
way, at
direction,
defendant’s
Betts fabricated a bill of
portion
sale for a
of the cattle from Fannie Osborne to
forged
Earl Osborne, to which he
Fannie Osborne’s
Upon reaching
yards they consigned
name.
the stock
the cattle to
Emmert,
Drinkard &
merchants,
commission
in the name of Earl Osborne. Defendant and his associ-
they registered
ates then
retired to hotel where
day they
assumed names. The next
went to the office
proceeds
of Drinkard & Emmert and secured the
the sale of the
cattle
the form of a
check
$545.35
payable
By forging
to Earl Osborne.
the endorsement
procured
of Earl Osborne thereon the Cahills
cash
stated,
the amount
which was divided between them.
The two Cahills
were
arrested
October
Springs,
request
Colorado
and at the
of the sheriff of
county
county
Teller
were incarcerated in the El Paso
jail
they
until November
1941, when
were removed
Cripple
appeared
Creek. It further
from the evidence
alleged
Osborne,
Sumner
owner of the cattle
*4
disappeared
place
involved,
from his usual
of abode
missing
about October 17, 1941, and still was
at the time
may
of the trial. It
be inferred from the record that at
suspected
being implicated
one time defendant was
of
unexplained disappearance.
in Osborne’s
ground
As one
for reversal defendant contends
prove
that the evidence was insufficient to
the owner-
by
the cattle on
possession
of
ship
Osborne
Sumner
and
alleged
In this con-
information.
23 as
October
argued
that
the circumstance
nection
by
and
to Earl
recorded
cattle were
borne
these
brands
proof
prima
our statute
facie
Osborne is
Fannie
C.S.A.),
they,
(section
chapter
and
160, ’35
as con-
While,
of
cattle.
Sumner,
owners
were
prima
facie evidence
tended, a recorded brand is
estab-
ownership
it is
branded,
so
well
animals
Howry v.
of such fact.
lished that it is not conclusive
Sigel-Campion
Herein
143,
question. There
no merit in the contention that the
is
proof
upon
theory
convict,
to
was insufficient
disappeared prior
23,
because Sumner had
to October
alleged
larceny,
date
he thus
could
have
deprived
possession
of the immediate
cattle
day alleged.
elementary
on the
ing
It is
that notwithstand-
custody
allegedly
an actual want of
of a chattel
possession
contemplation
stolen,
law,
thereof,
person
possession
remains
has
last in actual
until he
parted
it
abandoned it or
to someone else. 36
pp.
suggestion
C.J.,
757, 758, §§79,80.
There
no
in the
any legal
evidence that
sense Sumner abandoned
gave
possession
any
person.
these cattle
their
other
give
The court refused
an
instruction tendered
reading:
necessary
defendant
it
“That
for the
prosecution
prove
beyond
the evidence
a reason-
doubt,
able
as in
defined,
these instructions
the owner-
ship
charged
of the cattle
information,
as
and that
prosecution
you,
if
you
fails to so convince
shall find
guilty.”
assigned
the defendant not
Error is
to this rul-
ing.
specifically
Given Instruction No. 5
detailed all
charged including
the elements of the crime
the essen-
ownership
possession,
tialities of
a condi-
required proof
beyond
tion to conviction
thereof
Having
generally
reasonable doubt.
so
instructed the
jury concerning
requisite components
all the
of the
offense, not incumbent
the court to instruct
specifically as to one of them alone.
Grandbouche
(2d)
104 Colo.
577;
P.
Henwood v.
People, 57
Colo.
A,
Pac.
Ann. Cas. 1916
1111.
informing
of the definition of the
charged,
precise
criminal act
the court used the
lan
guage
chapter
supra.
of section This, defendant
language
asserts, was erroneous in *
*
*
* *
statute contains the words
*, “sell,”
“embezzle”
any
unlawfully deprive
“or in
manner
the owner of
possession”
the immediate
cattle, which terms
argued that
It is
the information.
included in
were not
language
itself
statute
use of the
from the
guilty
circum
jury may
have found
*6
point is
charged
This
in the information.
stances not
given
jury
By
was
1 the
No.
not well taken.
Instruction
information,
charge
in the
the
as contained
verbatim
precise ele
again
5
reiterated
and Instruction No.
general proposi
alleged.
a
ments
“As
of
offense
given
objection
in
were
tion the
that
instructions
People, 8
language
Kent v.
tenable.”
of
statute
not
statutory it is
563,
the offense is
Colo.
For the
reputation,
general
called two
of
defendant
sense
testimony
simply
effect
to the
one,
witnesses. The
always
“respected
almost
had
that defendant
inadequate
clearly
everyone
him”
was
has known
reputation
general good
as a
prove
of law-abiding
peaceable
The other witness
citizen.
testify, however,
hypothetical manner did
a somewhat
good.
respects
reputation in
such
that defendant’s
give,
an
and the court refused
tendered,
Defendant
the effect that since defendant had intro
instruction to
good
jury should
character, the
of his
duced evidence
“together
all
evidence
other
consider
presumes
person
case,
because the
a
law
reputation
likely
such
is less
to commit a crime than
person
reputation.”
of a different
The record
does
grounded upon
disclose whether
theory
the refusal was
proof
justify
that the
insufficient
in-
an
subject,
upon
premise
struction on the
that the
legally
improper
instruction
inwas
form. Whatever
justifiable
was the view of the trial court its action was
ambiguous
language
because
erroneous
merely leaving
tendered
which,
instruction
instead
importance
to attach such
to the evidence
good
they thought
proper,
character as
should have
expressly
scope
power
informed them
the
of their
respect
exercise of a sound discretion with
thereto.
People
See,
People
Elliott,
163 N.Y.
103;
N.E.
App.
v. Childs, 85
N.Y.S.
90
Chester,
Div.
18 N.Y. Cr.
*7
Sup.
Commonwealth v.
77 Pa.
388. Sec-
ondly, notwithstanding
containing
that instructions
presumes,”
words “the
approved by
law
etc., have been
appellate
(See,
some
courts
State,
Prater v.
107 Ala.
238),
may
18 So.
are
properly
we
satisfied that it
be
presumption
held that there is a
person
law that a
of
good
likely
character is less
to commit a
a
crime than
person
reputation. Knight
of bad
App.
v.
22 Ala.
State,
So.
App.
804;
117
Crews v. State, Ala.
So.
and State
Ferrell,
v.
202 N. C. 475,
The sheriff and undersheriff El Paso permitted jury were to relate to the a confession amounting acknowledgment defendant to a full of his part in the commission of the criminal acts herein charged, allegedly orally county made in the El Paso jail presence attorney, of the Cahill, district John defendant’s brother, and on themselves November 14. objected Counsel for defendant to the admission of the involuntary, confession on the it was ground a out of the presence requested preliminary inquiry con- strenuously thereto. It jury respect tended of the court to this request failure grant the con- and the of the testimony detailing reception fession without constituted hearing, such preliminary an adher- reversible error. there be Generally, should if and, ence to the defendant procedure requested is made of the confession objection when evidence proper evi- submitted, is about to be it is error to such allow court, dence to until after a go hearing out of of the has determined jury, presence prelim- the confession inarily Corollarially, was voluntary. it also is certain that a failure to observe the procedural rule not fatal requirements general when See, Buschy defendant is not thereby. prejudiced satisfied the are Pac. 519. We 472, 216 73 Colo. the record affirmatively latter appears situation officers to whom herein. The examination effort no trace made contains confession was this conduct influence the defendant’s their to part fact, testified they or threats. inducements regard by that he be permitted requested that defendant specially also stated them. They make the statement to to John desire, his brother express to defendant’s pursuant he hear, admittedly the conference brought John called as a witness said. did, what one the officers as and contradicted for defendant no defendant, but gave had attributed to statement they concluded, directly or be might from which testimony *8 other than volun- that the confession was inferentially, objections the tenor of defendant’s From tary. the circum- concerning his affidavit statements as a urged ground made was
stances when point his contention -that the to have been trial, it new appears involuntary by alleged rendered confession was he the statement making That before occurrences: (1) him; against (2) it be used might that not warned was following placed kept that his he in a arrest was separate by apart occupied cell from the one his (3) interrogated daily brother; he and was sundry including accused “of divers and crimes, (4) although murder Osborne”; of Sumner within day requested permis- after two his arrest he had attorney, granted sion to consult an he this privilege days subsequent until “at least ten to his (5) arrest”; that for about two weeks after his arrest none permitted of his friends or relatives were to see * * * (6) sundry him; that on “divers and occasions he by portions was advised different officers his property County being on his ranch in Teller re- were by person moved one another, but was allowed to prevent make no practically effort to such removal until being County.” time of his taken to Teller The affi- by way davit terminated with the statement, of conclu- sion, that because of the mentioned, incidents above voluntary “was in no state of mind to make a statement.”
Considering
categorically,
these
contentions
voluntarily
is well
that a confession
established
made
by
is not invalidated or made inadmissible in evidence
reason of the failure of the officers to inform the defend
might
against
ant
that his
be used
confession
him.
Reagan
People,
Rogers
v.
49 Colo.
people, confessing, in advance of his attorney. defendant so had informed district custody The fact that defendant was in at the time he made the statement, itself, does not render the evi (Reagan incompetent People, supra), dence nor is merely evidence of a confession “rendered inadmissible during delay the fact that it was obtained an undue brought between arrest and the time when accused was before court; the fact that when it was made * * * persons authority present were , or that he was
39 * * * other or because counsel not represented Bearing C.J.S., §817. p. factors.” similar October on was arrested that defendant mind no- to be it is made November was the confession he statement own of defendant’s that on the basis ticed con- before days counsel several to see was permitted fact that “Also, the the officers. was made to fession admission denied accused were family friends does made the confession until after jail C.J.S., p. render inadmissible. confession §817. suggest much as not so
The does affidavit continually he occasion upon any questioned “third or that exhaustion or mental point physical attempted methods form were degree” -he was him in The fact officers having charge. offenses or of other accused of the crime charged in- the confession render evidence of officers would not Pac. 892. 4, 262 Osborn v. 83 Colo. admissible. the dis- told of assertion, true, The if that defendant was of some of his absence appearance property, anxiety his alleviate the officers promise by tending hinted, obviously if he should is not even confess, which would not render his confession involuntary.
Defendant error the basis finally assigns upon his counsel was restricted in cross-examination unduly of witnesses for the reference to defendant’s people state of mind A careful exam- at the time he confessed. this contention ination record convinces us merit. without The affirmed. judgment
Mr. Justice Hilliard dissents.
On Rehearing. Petition for dissenting. Mr. Justice Hilliard confession” “defendant’s
I regard reception as gravely presented, the circumstances erroneous. The court opinion recites: “Counsel for de- fendant objected to the admission of the confession the ground that it was *10 and a involuntary, pre- requested liminary out of inquiry the the presence of with respect thereto.” The objection was overruled and the request denied. below, Thwarted defendant emphasizes the on point error. Osborn v. People, 4, 29, 901, 83 Colo. Pac.
Mr. Justice court, Butler said: “This on occa- repeated sions, that, has said to be admissible, a confession must be voluntary, the is question admissibility for the stated, court.” In of the doctrine thus support the distinguished cases, cited an jurist of Colorado array them case of Fincher v. among the People, early 26 Colo. 169, 56 Pac. where, speaking Mr. Justice through Gabbert, we said: “It was the of the court province alone to determine whether confession was made with that degree freedom which would render it ad- * * missible as *, the usual practice being determine its as a admissibility preliminary question, by hearing all evidence touching the its subject being This voluntary. rule rests upon proposition that competency of evidence is legal a which must question, be determined by court, and its credibility by jury.” Addressing himself further to the Mr. point, “* * * Justice Gabbert quoted Greenleaf as follows: The material therefore, inquiry, is, whether the confes- sion has been obtained influence of or fear hope applied aby third person to the prisoner’s mind. The evidence to this point, being its nature preliminary, is addressed to the who judge, admits the of the proof confession to the or jury, rejects it, he as or may may not find it to have been from the drawn prisoner, 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 voluntarily, without been made confession shall have person, appliance hope or fear other determine, for made, it him not, was so whether age, upon and character situation, consideration prisoner, which circumstances supra, People, cited has made.” Fincher v. approval point question, have other announcing late rule, Colorado cases the same (2d) People, 88, 97, cases of Moss v. 18 P. 92 Colo. (2d) 25 P. and Saiz v. Colo. 291,
1114, 1116. it is chal- admissibility confession, where of a solely
“The hearing, lenged, after question the court is a jury, each side the evidence in the absence respecting all was ob- confession the manner which large necessarily vested with tained; and the court *11 determining how- matter, discretion, discretion great care to ever, which should be exercised proper enforcement of law end that the and due injustice impeded, be and that no the one hand be not Berry State, 4 Okl. done the on the other.” (N.S.), See, 849. 676, Cr. Pac. 31 L.R.A. admissibility pp. of “The C.J.S., 1468, §§834, 838. voluntary being dependent upon char- a confession its voluntary question or it is acter, the of whether the offer instance, must be decided in the first when assuming testimony provided made, and introduce is objection is the confession that an to the effect interposed. involuntary properly is inadmissible because jurisdictions, upon practice offer in- The in most such of objection timely properly made, and troduction and preliminary á examination the evidence to conduct prosecution jury, defense, absence admissibility This to determine the of the confession. by upon made trial the rec- court, determination is ognized voluntary accepted principle that the or in- voluntary question character the confession is a by judge, law, to be determined the trial from the facts as adduced. This prevailing well-recognized rule in the States, United and in accordance with elementary the functions of principles defining judge and jury. The sole to be determined question trial judge is whether be- confession is admissible cause voluntary, involuntary. inadmissible because All other the confession questions, including whether made, or the actually and credence to weight which it is entitled, are for the if the confession is found to be admissible.” Wharton’s Criminal Evidence (11th ed.), In p. cited text, cases are support §594. from States, United Alabama, Arizona, Cali- Arkansas, fornia, Colorado, Columbia, District Connecticut, Florida, Illinois, Georgia, Indiana, Iowa, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, New Nevada, Hampshire, New Jersey, York, Ohio, New North Carolina, Oklahoma, Pennsylvania, Dakota, Carolina, South South Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, Wyoming. edition, Evidence, page Underhill’s Criminal 3rd 217, the “The preliminary section author states: directly
question, voluntary? bearing was the confession must evidence, be, according its upon competency as a cases, court, majority of decided hear mixed And the court of law and fact. question may both the circumstances sides to show See, also, page which the confession made.” 313, section further “In where Underhill says: case is his to show right preliminary [defendant’s] *12 evidence that the confession voluntary, is the court, the duty determining in competency of the confession, not the for to consider evidence only the the state, the showing confession but voluntary, evidence elicited the accused to the in prove contrary his favor A refusal, as well. the before confession admitted, to allow counsel the for prisoner to cross- examine the as to the witness character the voluntary to ex- to testify, the accused or to allow confession; to show made; it was mental condition when his plain ob- it was improperly others that the evidence Evi- III See, Wigmore error.” tained, is reversible great section where dence page (3rd ed.), compelling and with author, inimitably, proceeding at I have conclusion. at the arrives same analysis, the rule, not because the fortify to state and pains but, it, court, terms, against declares the in opinion of rule, and the below, contrary to rather, ruling the The relief. here, stand in weakness may tolerated as indulged is the conclusion opinion indicates taken in the presence hence, spec- further voluntary, as alleged confession was rule, he would ulated, the trial had observed'.the judge, and, it, the error is without have admitted therefore wholly That, ken, our beyond prejudice. manifestly rule, re- Had the unsound. trial followed judge in form, and moved and heard the whole quested ample atmosphere, story in his chambers or other of calm place give him to might revelations well have caused him and within pause, reasonable convinced possibilities that voluntariness did not is invo- obtain. The rule cable of right. Speculation judge, as to how the trial proceeding therewith, consonance decided would have the requisite is not preliminary question, permissible. from section
The court opinion quotation discussions relative C.J.S., 1433, consists of p. obtained or given of confessions admissibility as to manner of circumstances, and not varying in sup- far as the cases cited ascertainment thereof. So disclosure, text pre- make there were port quoted the trial and the judge, liminary inquiries questions decision on review did not have do with pro- rather here, cedural rule involved but as to whether make judges, having proceeded preliminary inquiry con- accordance with rule for which defendant tends review, on this had in favor of the rightly resolved
44
admission it office the of the confessions. That is the trial in the the judge, absence of acting jury, inquire to the preliminarily as voluntary qualities confession, claimed is 838, in and discussed sections 834 same volume and title. are Colorado reports replete with instances indicating that when the have people offered an alleged trial, confession on of defendant and to which there objection was the ground was as involuntary, here, preliminary inquiry by judge, out of the presence has been the jury, procedure In Mitchell employed. 346, v. 76 232 Pac. Colo. People, 685, Mr. Burke, Justice in discussing opinion question whether a confession voluntary, said: “The court heard conflicting evidence on this in subject, the absence of the jury, and held the confession volun- * * * . tary. The question was one for primarily court.” The case Fincher v. People, was cited supra, there. 472,
The case
v.
73 Colo.
216 Pac.
Buschy
People,
519,
record,
of its
under-
light
only
examined
standable on the
then
that a
theory
widely entertained
It
“miserable
cites sec-
bootlegger”
beyond
pale.
which,
tion
1
on Evidence
like
Wigmore
(1st ed.),
C.J.S.,
section
et
referred to
pp.
seq.,
here,
court
discusses the
confes-
opinion
admissibility of
court,
sion in cases where
trial
first proceeding pre-
rule,
them
liminarily according
had
found
be
If the learned author of
voluntary.
opinion
Buschy
case had had his attention
section
called to
same volume of Wigmore, he
the rule
would have found
that controls trial
as
judges
they go about ascertaining
confessions,
facts relative
offered
challenged,
as I
clearly,
here,
there,
too,
suggest.
respectfully
In the
Buschy
court cited
opinion
O'Donnell
there,
Colo.
Although situation state the not I shall to re- fact that in addition I detail, call attention ques- fusing in the absence of to determine voluntary, alleged confession was tion of whether the imposed the court cross-examination restricted sought to elicit full revelation from on counsel as he op- thereto, officers in chief with relation who testified jury. prejudice defendant’s case before the erated to investigation on its neither make short, the court would permit reasonably presentation account, nor full own jury. major every particular, error, The first forgivable unquestioned review, constitute should reversal; error, reason for and to correct the second born reviewing first, should add to the enthusiasm history liberty largely well-doers. “The history has been the safeguards.” procedural of observance of McNabb Sup. v. United States, 318 U. S. Ct.
L. Ed. 579.