65 Colo. 497 | Colo. | 1918
delivered the opinion of the court:
The plaintiff in error was convicted of carrying intoxicating liquors into this state for the purpose of delivering same within the state for unlawful purposes. Numerous errors are urged. The instruction given which requires serious consideration is No. 6, pertaining to a reasonable doubt. It does not follow any form heretofore approved by this court. It includes the following: “You have no right to disbelieve as jurors if you believe as men. Your oath imposes on you no obligation to doubt where no doubt would exist if no oath had been administered.” This instruction was given on May 26th, 1916. In Sarkisian v. The People, 56 Colo. 330, 138 Pac. 26, decided in January, 1914, three members of this court condemned this language, two others not considering it, one member not participating, which left only one, who gave it approval in his dissenting opinion. It is true that quite similar language was reasoned out as harmless upon account of the other language used in McQueary v. The People, 48 Colo. 214, 110 Pac. 210, but it was not commended in that case. The same reasoning, with a condemnation of the language used, will be found in Foster v. The People, 56 Colo. 452, 13 Pac. 10, decided in January, 1914. The giving of this kind of an instruction was condemned in VanWyk v. The People, 45 Colo. 1, 99 Pac. 1009, decided at the September, 1908, term, wherein it was suggested that as this court, in Minich v. The People, 8 Colo. 440, 9 Pac. 4, had approved a particular form concerning reasonable doubt, it would recommend its use without further change. It might also be observed that in the VanWyk case the instruction considered included,
The question which now presents itself is, shall we ignore our repeated condemnation of this language and our previous suggestions that its use be discontinued, and try again to reason out that the use of it is harmless error even where, as here, the instruction goes farther than any given in the past. In Robinson v. State, 18 Wyo. 207, 106 Pac. 24, the judgment was reversed for the giving of this instruction. The same instruction where it contained the language, “from all the evidence” was condemned in People v. Johnson, 140 N. Y. 350, 35 N. E. 604; Siberry v. State, 133 Ind. 677, 33 N. E. 681, and Cross v. State, 132 Ind. 65, 31 N. E. 473. The criticism which we offer to it with the words, “from the evidence,” omitted, is that it tells each juror that he is not at liberty to disbelieve as a juror if he believes as a man. A juror might thus construe it as meaning that if, as a man and citizen, from sources outside the record, he believes the defendant guilty, or if that is his belief based on outside knowledge, or otherwise, then it was -his duty to convict, even though under oath as a juror from the evidence he would not be thus justified. As said by the Wyoming court, “A lack of evidence to prove such guilt can not be supplied by what a juror knows or believes regardless of his oath. Under our procedure, he is required to base his verdict solely upon the evidence and the law as given him by the court.” This rule applies in this jurisdiction. The defendant, in the common parlance of the street, was
In view of a new trial, one other alleged error should be considered. It is claimed that the information is defective, and, upon defendant’s motion, should have been quashed for the alleged reasons: First, that it fails to state the place within this state to which the liquors were carried.
In Langan v. The People, 32 Colo. 414, 76 Pac. 1048, the court had under consideration an act prohibiting the sale of intoxicating liquors within five miles of any camp of
The case of Fehringer v. The People, 59 Colo. 3, 147 Pac. 361, presents a different state of facts. The defendant was a druggist. The act under consideration provided a scheme whereby any city, town, ward, district or precinct in the
In Sturgess v. State, 3 Okla. Crim. 375, 102 Pac. 57, the opinion states that the defendant was convicted under an information charging him with transporting and conveying intoxicating liquors from one place in the state to another place in the state, but not designating such places. In such a case, it might properly come under the ruling announced in Fehringer v. The People, supra, as well as the mandate in our Constitution that the defendant be informed of the nature and cause of the accusation. Such is not the case here, but, to the contrary, the language used notified the defendant that he is charged with bringing liquors from without the state to within the state and within the County
For the reasons stated, the judgment will be reversed and the cause remanded for a new trial.
Reversed and remanded.
Decision en banc.
Mr. Justice White and Mr. Justice Teller concur on the reversal for the reasons given, but dissent from the conclusion that the information is sufficient.
Mr. Justice Allen dissents to the reversal of the judgment for the reasons given, but concurs in the conclusion that the information is sufficient.