24 Colo. 43 | Colo. | 1897
Lead Opinion
delivered the opinion of the court.
In reviewing the action of the district court hi directing a verdict and rendering judgment for plaintiff, we are not only to consider the evidence actually received, but, also, such competent evidence as was offered and rejected. In support of the issue as to the alleged suicide of the deceased, the defendant offered in evidence the duly certified verdict of the coroner’s jury. When this offer was first made, the trial judge seemed to have been of the opinion that such inquisitions were in no case admissible. After argument of counsel, the court changed its opinion in this respect, but rejected the inquisition upon the ground that it was impeached for irregularity in the proceeding by the evidence of Col. Chivington, the coroner.
Upon this rehearing, we are of the opinion that the first impression of the trial court was correct, and that the inquisition was not admissible for the purpose of proving suicide. This view, which is in opposition to the conclusion announced upon the former hearing, is based primarily upon a more careful examination of our statutes.
For instance, with uá the coroner is made a conservator of the peace, and in case of information reaching him of the violent or sudden death of any person within his jurisdiction, the cause of which is unknown, he is required to proceed and view the body and make proper inquiry in respect to the cause and manner of death, and when such death occurs under suspicious circumstances, he is forthwith to summon a jury of six persons, citizens of the county, to appear and hold an inquest. In case the jury finds that a crime has been committed, and names the person whom the jury believes has
It is claimed that inquisitions by coroners were admissible in evidence at common law, and hence, are now admissible in jurisdictions where the common law rule has not been changed by statutes, and the following cases are cited in support of this contention: U. S. Life Ins. Co. v. Vocke, 129 Ill. 557 ; Pyle v. Pyle, 158 Ill. 289; Walther v. Mutual Life Ins. Co. of N. Y., 65 Cal. 417.
The English rule, however, grew out of the fact that the inquisition was a judicial proceeding, authorized by statute, and made the source of title of the king for lands escheating to the government; and hence, were analogous to proceedings in rem, but this reason is without force under our system of government. Moreover, under our constitution, as originally adopted, no part of the judicial power of the state could be vested in the coroner. It is true that this constitution was amended in 1885 so as to permit the legislature to create new courts, conferring upon that body a large discretion with reference to the jurisdiction that might be given to such courts, but no attempt has since been made to confer judicial power upon coroners in this state; hence, the inquest sought to be introduced in this case was extra judicially taken, and should have been excluded under the rule laid down by Prof. Greenleaf. 1 Greenleafs Evidence, sec. 556.
It is true that a contrary conclusion has been reached in the state of Illinois, under statutes quite similar to our own,
The ease of Walther v. Mutual Life Ins. Co., 65 Cal. 417, is hardly an authority in favor of the inquisition in this case, as in that case the plaintiff in an action upon a life insurance policy himself introduced in evidence the record of the proceeding of a coroner’s jury. This record was introduced for the purpose of showing that the party had complied with the requirements of the policy as to the preliminary proofs of death, but it also showed the verdict of the coroner’s jury, which was, in effect, that the insured had committed suicide, and the court held that the whole admission must be taken together, and when so taken, were prima fade evidence of the facts stated therein, including the statement with reference to the suicide of the deceased. It does not necessarily follow, from the decision of the court, or anything said in that opinion or in the opinion in Insurance Company v. Newton, 22 Wall. 32, and upon which the California decision is based, that the inquisition would have been admitted in evidence to prove suicide if seasonable objection had been made thereto.
In case of death under suspicious circumstances, or resulting from accident, the rule permitting inquisitions to be used in evidence would result in a race and scramble to secure a favorable coroner’s verdict, that'would influence, and, perhaps, control in case suit should be instituted agaiust life insurance companies upon policies of insurance, and in cases of accidents occurring as the result of negligence on the part of corporations operating railways, street car lines, mining for coal or the precious metals, etc. Law writers, of late, have frequently animadverted upon the carelessness with which such inquests are frequently conducted, and to allow .inquisitions to be used in a suit between private parties upon
The appellant introduced Dr. Eskridge as an expert witness, for the purpose, among other things, of proving by him the symptoms attending a case of poisoning by cyanide of potassium. Dr. Eskridge testified that he graduated from Jefferson Medical College, of Philadelphia, about nineteen years before, and that he has been regularly and constantly engaged in the practice of Iris profession since that time; that he was duly licensed to practice medicine under the laws of Colotado; that toxicology was a part of the medical instruction received at college, and that he had made this branch of his profession a special study for twelve or thirteen years; that he had been a lecturer and teacher in toxicology for four or five years; that he was familiar with all the authorities and had them at the time in his library; that while he had had no experience in treating a case of poisoning from cyanide of potassium he had, in his experience, treated many other cases extending over a large field; that he had had nearly one hundred cases of suicide or homicide from poisoning; that he had had, probably, eighteen cases of arsenical poisoning; some fifteen cases of opium poisoning; cases of poisoning by belladonna; by carbolic acid; one case of nitric acid poisoning; one case of ver atria de veri poisoning ; two cases of aconite poisoning, and one of bichloride of mercury, or corrosive sublimate, poisoning.
Notwithstanding the extended study and experience of Dr. Eskridge, and his admitted learning, the court refused to receive his testimony with reference to the effects of cyanide of potassium upon the human system, for the reason that he had had no actual experience with poisoning from cyanide
In some states it has been held that the decision of the trial court upon the competency of a witness to testify as an expert is conelnsive; but we think the contrary rule is supported by the weight of reason and authority. It has the sanction of the Supreme Court of the United States, and should be folloived in order that the practice in the state and national courts may be similar. In the case of Stillwell § Bierce Mfg. Co. v. Phelps, 130 U. S. 520, this rule is stated as follows: “ Whether a witness called to testify to any matter of opinion, has such qualifications and knowledge as to make his testimony admissible, is a preliminary question for the judge presiding at the trial; and his decision is conclusive unless clearly shown to be erroneous in matter of law.” In the case at bar we think it is clear that the district judge erred as to the law. The evidence of Dr. Esk
We are of the opinion that the evidence properly admitted, and that which was offered and erroneously refused, was sufficient to entitle the defendant to have the defense of suicide submitted to the jury; and although such plea, to prevail, must be established by clear and satisfactory evidence, it may, nevertheless, be so established by circumstantial evidence. In this case we think it is clear that the court erred in directing a judgment for the plaintiff. The judgment will, therefore, be reversed, and the cause remanded.
Reversed.
Concurrence Opinion
concurring specially.
Because of the error of the district court in directing a verdict for the defendant, I join with my brethren in voting for a reversal of the judgment. As at present advised, I am unable to agree with them in holding the verdict of the coroner’s jury inadmissible in evidence for any purpose. The better doctrine, in my opinion, and the one sustained by the weight of authority in England and in this country, as announced by the supreme court of Illinois in the cases cited in the foregoing opinion, is that such a verdict, being a judicial determination of a fact of public interest and importance, required by the statute thus to be ascertained, is competent and admissible in a case like the one at bar, as prima facie evidence of the cause of death, as therein found. To the same effect are: 2 Phillips’s Evidence, *262-268; 1 GfreenT leaf’s Evidence, sec. 556; 1 Starkie’s Evidence, *307-309; Walthers v. M. L. I. Co., 65 Cal. 417; County of Lancaster v. Mishler, 100 Pa. St. 624. In Louisiana it seems to be admissible even in a criminal case. State v. Parker, 7 La. Ann. 88; State v. Puffy, 39 La. Ann. 419. The New York case I do not think militates against this doctrine, while the case from Maryland is clearly dictum, for the question as to the
I do not give to section 1 of article 6 of our constitution (as originally adopted) the same effect that my brethren do. It reads as follows:
“ The judicial power of the state, as to matters of law and equity, except as in this constitution otherwise provided, shall be vested in a supreme court, district courts, county courts, justices of the peace, and such other courts as may be*.created by law for cities and incorporated towns.”
The exception therein embodied indicates that elsewhere in the constitution judicial power may have been “ otherwise provided.” Turning to section 8 of article 14, there is found a mandate that there shall be elected in every county, every two years, one coroner. His duties are not therein defined, but the coroner was a well known officer at the common law, and unquestionably exercised judicial power in holding inquests. Without any further specification in the constitution, unless the statute imposed limitations, the office would therefore exist with all common law incidents. 4 Am. & Eng. Ency. of Law, 173, and cases cited.
That the general assembly so interpreted said section 8 as authorizing the creation of a coroner’s court and the vesting of judicial power therein, is shown in that, at its first session in 1877, it passed an act, largely declaratory of the common law, whereby it clothed the coroner with certain powers, some of which are only ministerial, but others as clearly judicial in their nature as those vested by section 1 of article 6 in the supreme or district courts. Nor do I conceive the sole object of an inquisition by a coroner to be to lay a foundation for a criminal prosecution, in case the finding is that the death was felonious. That, it is true, is one object, but by.section 870 Mill’s Ann. Stats.: “Where he has notice of the dead body of any person supposed to have died by unlawful means, or the cause of whose death is unknown, found or being in the county, it shall be his duty to summon forthwith, six citizens of the county to appear at a time and place
In the majority opinion the interpretation of the statute is as if the words above italicized were omitted, and the effect of such decision is to divest the coroner of power to hold an inquest to ascertain the cause of death when, as he supposes, it was not unlawful, but only unknown. I know of no rule that justifies such construction. As I interpret this statute, it is^made the duty of the coroner, when he receives notice of a dead body, where the cause of death is unknown, forthwith to summon a jury, subpoena witnesses, and cause a judicial investigation to be made to ascertain that cause. If found to be unknown, the verdict so embodying it, which must be filed in the district court of the proper county, is a judicial determination of a fact required to be determined by the statute; and as such, should be considered as prima faeie evidence of that fact, at least in all civil cases wherein it becomes material. Moreover, that the powers conferred upon the coroner by this act are judicial, and his tribunal a court, though of inferior jurisdiction in some of the states in this country, seems scarcely debatable. See authorities already cited; also 4 Am. & Eng. Ency. of Law, 174 et seq. and cases cited; Black’s Law Dict. 274, 278; Anderson’s Law Dict. 260; Vickers on Coroners; 5 Enc. Pl. & Pr. 88 et seq.; Boisliniere v. Co. Comm., 32 Mo. 375. He is authorized to impanel a jury, to supervise and control the inquest, to subpoena witnesses and enforce their attendance, to punish them and jurors for contempt in disobeying his process, the same as can a justice of the peace when his process runs in behalf of the state. He may also issue a warrant, running in the name of the people of the state, for the apprehension of a person suspected, in case the death is found to be felonious. So that this verdict, being at common law admissible as aforesaid, and that system of law being in force here so far as applicable and of a general nature, and unless modified by statute, I think the same rule is in force in this state.
I am not unaware of the claim made as to the origin of the