2 Colo. 351 | Colo. | 1874
Plaintiff in error was indicted jointly with Wm. Dailey, Geo. Milsap, and Chas. R. Ward, for robbery committed upon James Leverton, and the parties were separately tried, resulting in the conviction of all excepting Ward, who was acquitted. In each case of conviction the record has been removed into this court by writ of error, and as the evidence was substantially the same in all of them, the questions presented will be considered in this opinion. All of these questions arose and were presented in the case of Jones, save one, which arose in the case of Milsap in the following manner.
After the jury was sworn, a member thereof informed the court that be was not a citizen of the United States, and no objection being made, the trial went on. It is well under
In the case of Solander v. The People, decided at the last term of this court, we had occasion to construe this statute, and we then determined that challenges founded upon a pre-existing opinion in the mind of the juror, were, under the statute, to the favor only, and that a writ of error would not lie to the decision of the court thereon. The conclusions then announced are abundantly supported by authority, and we see no reason to change them. Sanchez v. The People, 22 N. Y. 150.
The suggestion that the act is in violation of the sixth amendment to the constitution, which secures to persons charged with crime the right to be tried by an impartial jury, is not supported by the language of the act. The court is expressly required to ascertain that jurors will determine the case impartially, and if this is not done, both the constitution and the law are disregarded. We see no reason to question the validity of this law upon constitutional grounds, and there is little room for argument as to the proper construction of it. As was said in Solander v. The People, any opinion by which the juror may be influenced in the trial of the cause should be regarded as good ground of challenge to the favor, but whether it is so or not, is to be determined by the court of original jurisdiction.
The government called Stephen Eldred to prove that Milsap, Dailey and the prosecuting witness Leverton, came to his house in the evening after the alleged robbery, and the same witness was afterward called by plaintiff in error to prove a conversation with Leverton at that time. After the witness had testified in chief on behalf of plaintiff in error, the district attorney inquired whether, at a time and place named, he had not had a conversation with Gf-eo. M. Hopkins in regard to the interview with Leverton, and whether -he had not told Hopkins that he was sorry for
The rule which forbids a party to impeach his witness is
When applied to testimony called out by the party who seeks to discredit the witness the reason is of great force, but it has little application to testimony drawn from the same witness by the opposite party. By bringing a witness into court the party vouches for his general character for truth and for the truth of his statements in regard to the particular matter of which he inquires. Further than this, neither the reason of the rule nor the policy of the law can be safely extended. Even as to the matter to which the witness is interrogated, if he declares against the party calling him, it is still open to proof by the testimony of other witnesses. 1 Greenl. Ev., § 443.
It is obvious that a party may be willing to accept the testimony of a witness upon one point, while he would be utterly unwilling to accept his testimony upon another point, and it is equally plain that a witness may testify truly as to one fact, and untruly as to another. If by calling a witness to prove a single fact a party shall be held to affirm his truthfulness absolutely and in all things, the rule would appear to be a hard one. It is often necessary for a party to call his adversary, or a witness who is hostile to him and who is a principal witness for his adversary, to prove a single fact; and if in such case the witness is subsequently called by the opposite party, justice requires that the party first calling him should be permitted to show the interest or hostility of the witness, not for the purpose of showing that the latter is unworthy of belief generally, but that he is more favorable to one party than to the other. In our view the rule under consideration precludes a party from attacking the general character of a witness called by him, but does not preclude him from proving statements of the same witness inconsistent with his testi
The evidehce of Hopkins tended to prove that Eldred was under the influence of plaintiff in error and his associates and that he was more favorable to them than to the prosecution. That such evidence affects the credit of the witness and is admissible for that purpose is clear upon reason and authority, and we think that it was rightly received upon that ground. Batdorf v. Farmers’ Bank, 61 Penn. St. 179; Swett v. Shumway, 102 Mass. 369; Geary v. The People, 22 Mich. 221.
That the testimony was also admissible for the purpose of contradicting Eldred is equally clear. The latter was called to prove a conversation with Leverton, and if he had given a different account of the same conversation at another time, it was proper to show that fact, to affect his credibility. 1 Greenl. Ev., § 462.
By answering that he had no recollection of the declaration imputed to him, the witness could not defeat the right of the government to prove it, and the objection based upon Eldred’s answer cannot be entertained. Ray v. Bell, 24 Ill. 451; Nute v. Nute, 41 N. H. 60; 2 Phillips’ Ev. 960. The evidence in the case is conflicting and not entirely free from difficulty. In the first place it is claimed that the prosecuting witness contradicted himself upon the stand, but we are unable to find that he did so in any essential matter. He misnamed the place to which he was taken by Milsap and Dailey after the alleged robbery, but this he subsequently corrected. On cross-examination, he falsely denied that he had made a statement in the direct examination, which is found in the bill of exceptions. An illiterate man, unused to the proceedings of courts, will often fall into such mistakes, and the jury can best determine what weight should be given to them upon the question of credibility. There was testimony tending to prove that the prosecuting witness, in the evening after the alleged robbery at Eldred’s house, declared that he had lost his money in gaming, thus contradicting his statement in court, that it
Three juries, successively impaneled in the court below, have found that the prosecuting witness gave a true account of the matter, and we cannot say that they were wrong. We find no error in these records, and the judgments therein recorded must be
Affirmed.