30 Colo. 94 | Colo. | 1902
delivered the opinion of the court.
Plaintiff in error has been convicted of the crime of larceny from the person of one Charles F. Wilson. From the sentence imposed he brings the case here for review.
The crime for which he has been convicted, it is said, was committed on the 14th day of February,1901. It appears that an information charging him with the offense was filed before a justice of the peace; that a hearing was continued several times, and finally, without any examination, an information was filed in the district court on April 18th. Two days later the appearance of counsel in his behalf was entered, the defendant arraigned and pleaded not guilty, and the cause set for trial on June 20th. Later the cause was continued and set for trial on June 24th. On this date counsel for defendant moved orally for a continuance, which was refused. The record- as made on that day does not ■ disclose what reason was assigned in support of the continuance requested. In view of the length of time which had elapsed between the date of the arraignment of the defendant (at which time the cause was definitely set down for trial), and the date when the case was actually called' for trial, there was certainly ample time for the defendant to prepare for the trial of the cause, and an application for a continuance in such circumstances - should have set out fully and in detail, under oath, the facts relied upon in support of it. — Chase v. People, 2 Colo., 509. After conviction, and in support of a motion for a new trial, counsel for defendant filed an affidavit in which he stated, in substance, that about ten days prior to the time when the trial commenced, he had a conversation with the district attorney, and was informed by him the case would neither be tried nor dismissed, but would
Error is also assigned on the reception of testi
The party claiming to have been robbed testi-' tied in substance that he had been given some drug by the defendant which almost instantly reduced him to a state of semi-consciousness, and while in this condition he was robbed. In support of the motion for a new trial, a number of affidavits are attached, which include the affidavits of several practicing physicians of the city of Denver. These physicians state that it is a physiological impossibility that the witness could have been affected in the manner stated by him by any drug, or combination of drugs, with which they are acquainted. Other affidavits filed tend, in some particulars, at least, to contradict the statements of this witness made at the trial. There is no showing whatever of diligence on the part of the defendant to procure the attendance of these parties at his trial, and neither is there any showing that by the exercise of reasonable diligence the testimony which they now claim is newly discovered could not have been ascertained before. The only statement in the affidavit in this respect is to the effect that the defendant could not, by the exercise of reasonable diligence, have discovered it in time to procure and present to the jury. It appears that all these witnesses resided in the city of Denver. The mere abstract statement that by the exercise of reasonable diligence the testimony could not have
It is claimed on behalf of counsel for defendant that the trial judge’s actions during the trial were prejudicial to the accused. The judiciary, in the proper discharge of their duties, and the functions devolving upon them, should exercise patience in hearing and determining all matters involving the rights and liberties of those charged with the commission of crime. Pair and full opportunity must be afforded them to present their defense. Prom the position of a judge he may, by his actions, unconsciously exert an influence upon a jury so as to materially prejudice the rights and interests of one or the other of the litigants. By words or conduct, he may unintentionally inject into the jury box his own views regarding the merits of a cause. Jurors, either from an estimation of the abilities of a judge to determine the merits of a controversy, or as a means of escaping the i’esponsibilities which they must discharge, are, no doubt, easily influenced by
After the jury had been out about twenty-four .hours they were brought in, and in the presence of the defendant and his counsel, were asked whether they had agreed upon a verdict, and upon the foreman answering in the negative, the court inquired whether the difference was a question of law or a question of fact, and upon being informed that it was a question of fact, the court stated, in substance, that they must determine the facts; that the case was an important one both to the defendant and the people; had been fairly tried upon both sides, and it was exceedingly to be desired by all parties, that the matter should be adjusted and solved. He further stated that each juror was, of course, entitled to his honest convictions, but that each should consult fairly'and calmly one with the other and see, if possible, whether the differences might not be reconciled; that they should not be kept from agreeing by any mere pride of opinion, and it was their duty to discuss the case among themselves, calmly and dispassionately, and endeavor to reconcile the questions or differences consonant with justice and law, and their own manly, personal convictions, and thus determine, one way or the other, the issues in the case. He then directed that they should con
On the next day succeeding the remarks above referred to, the bailiff in attendance informed the court that one of the jurors desired the services of a physician. The jury were then brought into open court, but neither the defendant nor.his attorneys were present. After some conversation with the ju
The a'bove is what occurred, according to the return made by the trial judge in the bill if exceptions. There is a dispute, however, as to what actually did occur at this time, with reference to the statements made by the judge to the jury, which counsel for the defendant have attempted to present and preserve by affidavits of several persons who were present at this time. It is urged that we should consider the statements- in the affidavits rather than those of the trial judge, by virtue of the provisions of sec, 1477a, 3 Mills ’ Ann. Stats., which provides, inter alia:
“When any judge shall neglect or refuse to allow, sign, and seal such bill of exceptions, then it shall be lawful for the suitor, or his attorney, to nlake and attach to such bill of exceptions the affidavit of two or more attorneys of the court, or other persons who were present at the time of-the trial, and when such exceptions were taken, stating that such bill of exceptions is correct and true, and when such bill of exceptions is * * * so attested and proved by*104 affidavit, it shall thereupon be filed by the clerk and shall become a part of the record of such cause.”
This provision is only applicable where the trial judge neglects or refuses to allow and sign a hill of exceptions purporting* to recite what may have occurred with respect to any particular matter to which exceptions were taken. In other words, it does not apply where the judge himself does make a return with respect to such matters; otherwise, we would he required, when a dispute arose, as in this instance, to determine whether the version of the trial judge, or that stated in the affidavits, was correct; in fact, might be in the dilemma suggested by counsel for defendant in their brief, when they say, in presenting this question: “Just what the trial judge did say no one knows. ’ ’ When the judge' himself certifies to a bill of exceptions, none of the matters therein stated can be contradicted by affidavit.
The principal ground relied upon by counsel for defendant why the communication between the court and jury as certified by the judge constitutes reversible error is, that it took place in the- absence of the accused and his attorneys, and that by this action the court re-charged and intimidated the jury. The general rule undoubtedly is, that a party being tried for a felony has the inherent right to he present at every stage of his trial, when anything is done which the jury must consider in determining his guilt or innocence. Ee-charging a jury is a proceeding in the trial. Eigid as this rule may he, however, it has no application in this instance. Communications from the judge to the jury, in the absence of the accused and his counsel, which in no manner relate to matters which the jury must consider in determining their verdict, and which, therefore, do not and can not influence the verdict, is not a proceeding in the trial, and hence not prejudicial. In other words — it is only
The only statementmade by the judge at this time which bears any semblance to a proposition of law, was to the effect that the jury were the sole judges of the facts. This statement was not intended as an instruction, but was merely assigned as a reason by the judge why he could not assist the jury in determining the facts, and it was so understood by them, and certainly could not have influenced the verdict in the least degree. ‘When a jury comes into court, as in this instance, upon an errand which has no relation to the cause being considered, and a communication takes place between the court and jury which can not affect the verdict, the rule requiring the presence of the accused at all stages of his trial is not violated. State v. Jones, 29 8. C., 201; Lawrence v. Commonwealth, 30 Grat., 845; 1 Bishop’s new Crim. Proc., § 273.
Counsel for defendant contend the court intimidated the jury at this time by intimating that outside influences were being exerted upon them, and that this was the reason they had failed to agree. The record does not support any such conclusion. All the judge did was to interrogate the jurors for the purpose of ascertaining whether or not any one was attempting to intrude upon their deliberations, or to address them in any way in reference to the case. He did not intimate they were being thus influenced, but simply sought to' ascertain if any attempt was being made in this direction. Certainly
In closing the discussion of this question, we deem it proper to particularly call the attention of trial judges to the fact that the law is very strict with respect to the right of one accused of a felony to be present when any communication takes place between the judge and the jury, after the cause has been submitted to the latter, and the only safe course to pursue is to hold no communication with the jury except in the presence of the accused and his counsel; otherwise it may become necessary for a court of review, in protecting the constitutional and inherent rights of those charged with the commission of a felony to be present at all stages of their trial, to set aside a verdict because the rule guaranteeing this right has not been strictly observed, and which, but for such action, would not have been disturbed.
No objection has been urged by counsel for defendant with respect tó the insufficiency of the testimony to support the verdict, because they have recognized the well-established rule that where findings of fact by a jury are based upon conflicting evidence, they will not be disturbed, because the jury are the judges of the credibility of the witnesses. We have examined with some care, however, the testimony, and while there is a marked conflict in some respects, on
The judgment of the district court is affirmed.
Affirmed.