*1 No. 12,651. v. People.
Kolkman (300 575) Pac. May Decided 1931. *2 plaintiff Mr. D. Mr. P. S. Crump, Veerkamp, James in error. Attorney Mr. General, Mr. Robert E. Winbourn, John Attorney P. Sidney General, Mr. S. Underwood, Gods- people. for the
man, Assistant, En Banc. opinion of the court.
Mr. Justice delivered Alter Roy Morrison Kolkman, J. B. Kolkman, John respectively, *3 and sons were Morrison, fathers William larceny. grand jointly charged The of with the crime Upon granted separate the trial. Morrisons a the and sentence was convicted Kolkmans, trial of the pronounced, John jury agree a to verdict while the failed Roy. will hereinafter he re- to who as ferred to John Kolkman, prosecutes this defendant,
either name or as alleged seeking reversal of two errors oc- writ, a because curring during- proceedings, (1) i. Refusal of the e., (2) grant a.separate trial; his for trial court to motion jury. trial court’s comments February an in- discloses on that, 14, 1929, The record capias and the formation was filed the district court, March, 1929, was made returnable at the issued thereon apprehension term of it also court; shows appearance; giving- for of bonds their Kolkmans, joint filed the Kolkmans their verified on March 10,1930, judge, disqualify motion on motion to the trial which was day 21, 1930, on March the Kolkmans filed denied; quash joint information, which mo- their motion day on denied; 21, March 1930, tion was also on that joint motion for continuance, their Kolkmans filed supported by joint their affidavit and motion was which April 1930. granted, for trial on 14, and the case set separate Kolkmans verified 1930, On March each separate were identical which motions trials, motions moving every respect, except name of the in party, as April just not but which were filed until as court had for the trial the Kolkmans. convened followed denied, The motions were ately. trial immedi- were The that the Kolkmans record also discloses represented throughout proceedings counsel the entire represent who John in this court. pertinent parts separate
1. motions for trial are:
“1. That there will be offered on evidence behalf People repu- relate to the which will and does not defendant, tation of be but which will material against Kolkman, John if defendant, admissible said jointly im- tried but which would be defendant, with this incompetent as this defend- material, and inadmissible ” prejudicial rights. ant, and which would be “2. That will be offered on evidence behalf People pre- highly at the trial will of this case which this, judicial wholly in- defendant and which will be competent defendant, which irrelevant as to this competent against will be material said John prejudicial necessarily Kolkman, and which will evidence whereby jurors, reach the ears the constitutional rights impartial of this defendant to an trial to a liberty will be jeopar- violated and the of this defendant authority dized without and this in- law, defendant is *4 alleges and, formed therefore, that is the intent and purpose attorney of the in district offer evidence cer- tain statements, confessions, conversations and of acts J. defendants, B. Morrison and William Morrison, alleged and other witnesses and acts, conduct statements, and conversations of defendant, John Kolkman, made not presence participated or done of this defendant or by competent of against him, all which will be and material evidence as the defendant, John Kolkman, but
12 against certain docu- and that defendant, not ments, letters, this as
papers will be written evidence and other competent against Kolkman, but not as defendant John against evidence to offered in defendant, as this will be great prejudice defendant that this defendant; this definitely as to what advise the court more cannot may People testimony and which or to be offered wholly competent against and Kolkman, will incompetent as John be prejudicial be, will defendant, and as compelled says moving he if defendant this proceed and in filed herein the information to trial under remaining’ upon joint defend- a trial the-two case charge wholly (while filed he innocent ants against him) greatly prejudiced and his consti- he will be right separate rights his ato tutional trial will be violated and under the of the land and the statutes law ’’ State of Colorado will be denied. exceptions have the bill of that,
We held unless prejudicial no error evidence, discloses the admission denying severance; for a Stone is committed motion People, v. Peo 897; Pac. 167, 71 Colo. 204 Sarno 162, ple, Pac. 74 Colo. 41. 528, 531, have held the motion for a sever
We also supporting set forth ance, same, or the affidavit must incompetent prejudicial evidence as advise so determining granting question trial court in People, denying Robinson v. 76 Colo. motion; People, 672; 88 Colo. Pac. Pac. Garcia v. 491. the rule announced
The defendant seeks avoid by alleging supra, veri- cases, Robinson and Garcia separate fied motion for definitely he trial more “cannot testimony what, advise the court as to be People competent offered or will which Roy against wholly incompetent as Kolkman, ’’ prejudicial to- bei, will defendant, course-, and, if the out truth this statement is borne the-evidence offered at the the motion for a severance would trial, *5 be impossible. do insufficient because defendant’s failure to tbe question assignment ; Tbe serious raised er- tbe rors relates admission of the evidence of witnesses J. B. Morrison, Morrison, William and one Denton with Roy acts, reference to and admissions conversations, Kolkman when defendant was absent. people on
The evidence of the behalf was that in Jan- uary, house, John Kolkman was at Morrison’s near hogs lived man Burson, which named whose were inquired field near house; the Morrison defendant of J. ownership hogs, B. Morrison as and was they belonged, told to whom then made the and defendant “Why get hogs,” remark, rison Mor- let’s these to which ” replied, get “Well we would into would we not? it, replied, “Why hogs defendant can no, we take these and my up place nobody take them to and butcher them and ’’ will ever know what went with them. Morrison further February public testified that about at a certain Roy he had a conversation with Kolk- sale, defendant and hogs, man with reference to in the the theft and evening day place, the same Kolkmans to his came and there then and it was determined between witness hogs during and the Kolkmans should be stolen night and taken in Kolkmans’ truck to- defend- day, ant’s where ranch, would be butchered and next pork equally would be de- witness, divided between Roy pursuant plan, fendant, Kolkman; to this hogs were stolen, ranch, trucked to Kolkman day, following butchering, butchered the in the wit- participated, ness, and others be- son, defendant, fore the division could be made, officers and the hogs pork pos- owner session. After the took the out of defendant’s
pork had been discovered, and that very night, Roy John and Kolkman went to the house presence where witness resided, of Wil- there, liam Morrison, entered into a discussion, formulated plans evading Following arrest and conviction. *6 Roy and was taken defendant
conference, witness Kolkman a farm where a the name of Potts- to man berg and lived, and was stated both defendant there it Roy they theft Kolkman had all involved in the been hogs, witness and that the was after Bnrson’s sheriff (J. trying Morrison), to “He B. who also stated: they get way lay me on me out so could blame ’’ Roy get up. left defendant until he could it fixed and “they they Pottsberg’s would said house, witness at and somebody get away get there down there to me from morning.” morning came next one Stevenson next Pottsberg’s Aguilar, and delivered to to took witness to and according previous to dollars,
him five hundred which arrangement be was to Kolkmans, between and the him with the man who came to witness out sent move country. Aguilar, he remained left at where Witness was days, Mm for when Kolkman came to see several John money inquired witness had wanted,.and he and what replied: having “I told or he stolen, received lost been my going got wife him I wasn’t leave to until I to see get money, they me I had to have some to- would have money get away then some to Defendant on, leave on.” days to left returned for his and in two or three home, Aguilar con- had witness wife, witness’ and after her “We moments, said, versed with better a few defendant get to out of is liable here because the sheriff ’’ any During wit- here minute. between conversation according Aguilar, to defendant, ness and defendant at my Roy cattle “Him and was to take stated: witness, wintering free them them and summer and finish get way they stay charge could and I was out till straightened up, thing I was look like make it buy prosecuting guilty party attor- would up ney thing straightened get would off and Burson straightened for all so come and it I could back would be Memphis;, took witness to us.” Defendant then forty giving him left he where, dollars, after him Texas, using the name Witness, and returned Colorado. money occa- on several wired defendant Hoket, Joe Memphis money at either to him was sent and the sions, Angelo, defendant Angelo. Texas, At San or San witness brought from there wife him, witness’ to see Springs, Big Texas, went to defendant and his wife and arranged defendant them that where it was between get witness’ to Colorado witness’ wife were return Roy arranged defendant that either and was car, Kolkman ’ wife to and witness with the car was to return Big Springs. Roy and wife, the car returned with Roy where Texas, Amarillo, car to all three went Big at While took the and returned to Colorado. train Springs, Roy telegraphed for one hundred defendant *7 gave then wife. Witness Morrison’s which he to dollars, Raton, to Oklahoma, back then to Mexico, went to New eventually where Colorado, returned to and New Mexico, hogs. charged theft of the with the he was arrested and attorneys Roy’s see the solicitation, went to at Witness, to his constitutional for advice as for rights defendant Roy respect testifying, he testified that with and everything if I fixed him him and had told “that John they they papers sign and had seen would a bunch my to come' I would not have release bond and would of court and there the case would thrown out back and ’’ nothing would be to it. present he at the Morrison testified that was William Roy father, defendant, conversation between his and pork night house the was Kolkman, at his father’s something and that defendant stated would discovered, replied, it “Yes, to be to which his father done, have looks like something further had to be done.” Witness “They wanted the old man to leave and he testified: get they and said, want and he tried John to, to, didn’t he under and leave, bond,’ John couldn’t was ‘No, pay half old man offered to the bond he was under and Roy Roy half and he that, other wouldn’t do and up he he had claimed couldn’t leave because his outfit away they get and he there couldn’t and decided he would they give him a dollars and leave and was to thousand up was'gone,” fix for all of while and wit- this them he night. ness then testified his father left that merely “go-between,” Denton was and testified Boy concerning ways conversations with and means of having charges dismissed, and witness’ efforts in that behalf.
Everything having testified as been and done, said objected the absence of herein, defendant was him. Wyk People, In Van Colo. 99 Pac. charged
defendants were with the crime of murder, and conspir the trial court law of instructed on the acy, assigned question, Upon this was as error. this page disposing at contention, this this court charged said: “It is true that the were not defendants having conspired together to kill confederated jointly against, murder, but were informed charged entirely charge with murder. Under proper conspiracy part to show a on defend offense, ants to commit and the acts declarations conspirator design of one in furtherance of the common * * ag’ainst defendants;” were admissible both the *. necessary charge
It is not an should information although conspiracy, conspiracy charged, no if appear it made tween that there was concerted action be the acts and declarations of one are codefendants, *8 against admissible the other. 16 C. J. 647. the of the crime which a
“While commission con- spiracy many accomplish- relates will in cases the mark object consequent ment of its and its so termination, as subsequent to exclude evidence of acts declarations of conspirator against necessarily one not another, this is conspiracy pur- but the continue for true, poses, various * * * pro- as for the of instance division such effecting escape, the the an ceeds, crime, concealment of tending the concealment of evidence to incriminate the conspirators, procuring leave witnesses to the state, * * # the case, and where the acts and declara-
17 against conspirator oth- the are admissible one tions of although conspiracy continued, made while the where ers, 16 of the crime.” C. J. after the actual commission seq. et people, if the offered the believed
The evidence jury, finding and the warranted it in Kolkmans conspiracy crime to commit the Morrisons entered into a larceny; larceny committed, in fact that the participants when the loot, before the division of the danger apprehension, original con- therein were spiracy conspiracy was en- continued; or that another parties the crime and to conceal into between all the tered might punishment not be suf- evidence so thereof, par- position of the event, thereafter. In either fered changed; they coconspirators, if evi- were ties is not people the acts and as such believed, dence of the is to be against as of one are admissible and declarations other. gravamen charged not con of the offense
spiracy larceny. conspiracy is ad but Evidence of such charged; prove here, Where, crime missible to jointly conspiracy into between defendants was entered only object having charged not for its tried, punishment charged, escape evi therefor, crime from showing proper purpose dence thereof is for the guilt. consciousness correctly Byrd syllabus In v. State, Ga. “
supports holding and is: The acts and court, accomplice pendency during conduct one only perpetration, wrongful but also its its act, subsequent against are admissible concealment, other.” State,
In
v.
S. E.
372, 377,
Carter
Ga.
commenting- upon
Byrd
the rule announced in the
case,
supra,
seems,
the court said: “It
under
therefore,
Byrd
State,
decision of this court in
accomplice during' pendency act, not of the the subsequent perpetration alone in its actual its also against another concealment, were admissible accom- plice. holding* idea This was doubtless based enterprise pending criminal was still while conspirators taking continued to active in measures prevent discovery identity the crime of those or the perpetration.” connected with its parties, although “Acts of after the consummation purpose escaping of the crime, done for the detection are admissible.” 3 Enc. Ev. 432. testimony
It is evident from the of Jim Morrison larceny hogs sug that, at the time the was first gested himto defendant, he in mind had the fear punishment, allayed by detection and and fear was this defendant’s remark as how the could theft be accom plished punishment and and concealed, detection pork evaded. It is found, also obvious when the possession and taken into the the officers and according testimony, owner, that, to the Morrisons’ separate conspiracy another and distinct was entered parties, including into between all the defendant, purpose object being apprehension, of which to avoid punishment. conspir arrest, conviction, and If the first acy beyond larceny, extended commission for conspiracy tried, or if latter which defendant was into, was entered as witness all acts dec testified, parties per of all the connected therewith larations taining thereto were admissible to this as defendant. ‘‘ enterprise design of a The common criminal ex- beyond appellant point tend, however, concedes, constituting act the commission of the crime * * * conspirator alleged which the’ is on trial. foregoing reasonable inference to be drawn from evi- subsequent all of dence is that these acts were consum- of a mated in the execution scheme to evade arrest escape punishment, and, therefore, under the rule of the justified, cited, authorities the trial court was we think,
19 might jury receiving in order that the evidence conspiracy original ex- not the whether or determine escape, np if and, and included scheme tended registering under an of the Broses in whether the act so, assumed name was People pursuance thereof.” v. App. 897. 893, 265 Pac. 317, 327, 90 Lorraine, Cal. 348, 84 Mont. Arnold,
To
effect see:
v.
the same
State
Sampsell,
App.
People
431,
104 Cal.
760;
275 Pac.
v.
757,
(16th Ed.)
Evidence,
286
1
on
434, 437;
Pac.
Greenleaf
133
510,
Pac.
305,
2;
Pettit,
1014,
note
v.
74
State
Wash.
141;
231
1019;
113
Pac.
Gauthier,
297, 307,
State v.
Ore.
Dayton,
Ia.
Scott v.
30 Ala.
Miller v.
57
State,
503, 510;
Scott, 123
423, 429, 10N.
v.
Mass.
814;W.
Commonwealth
222, 235;
35
249 Pac.
State,
139,
356,
Sanders v.
Okla. Cr.
Ky.
357; Allen Commonwealth,
475, 485, 196
v.
176
S. W.
160; O’Brien v.
69
96 N.
691, 693,
649;
Neb.
W.
State,
People
People
Fox,
The trial to the 14b, our rule after written had been read instructions' completed arguments, and counsel had their jury upon commented the evidence as follows: Jury: “Gentlemen of the There are four defendants named in the information. All four of these defendants Only have testified in this trial. viz.: John Kolkman and two the defendants, Roy Kolkman, are on trial. The two Morrisons who are named as not on defendants are trial here. ‘‘ There is a direct conflict between the evidence offered given by the two Kolkmans who are on trial and that the two Morrisons who are also defendants. The two
Morrisons have testified the State. The court be- when all the lieves that evidence taken as a whole and presented circumstances as have been here show equally all four of involved in these defendants charged the crime four information all stand equally position. before the law in the same “ binding These that the makes are not comments upon you. your your finding You are to malee and return you may verdict as find evidence warrants.” interposed following objec- Counsel for defendant * * * province jury, tion: “that invades *11 right and denies to the defendant his constitutional to a ’’ by jury. importance ques- trial In a view of the novelty jurisdiction, tion and in its this it has seemed fully possible objec- advisable consider and discuss specifically urged by tions not defendant’s counsel. gov Our rule 14b reads as “The follows: rules erning judges comments district on evidence shall be now in those force in the United States district courts.” unanimously adopted July rule 14b Our was ; on 1,1929 September became quent on effective which was subse- alleged prior to the commission of the offense, but to-the trial therefor. It be contended there is printed permitting no rule the in United States courts judges, on comments the evidence trial and therefore our rule is and indefinite uncertain. So far as we are premise wrong. the aware correct, but conclusion is printed among We have caused to be and distributed profession Supreme “Rules of the Court of the State of every 1929”; but it Colorado, should not be assumed that adopted rule and effective in state of Colorado can be found within its for in the covers, recent case of Plympton, Parker v. 87, 96, Colo. 273 Pac. it is ££ Many practice procedure said: of our rules of and are printed separate appropriately in book, labelled, attorneys practicing distributed free to- before this court. But a vast number of such rules are contained in printed reports promulgated jus- our decisions, as arose. therefor the occasion when demanded, tice possible to it they make Manifestly numerous too binding they ifas put are as book, in them all one and there covers, they two between contained all were meaning misunderstanding toas be no should this has been.” often as one stated as in used and the same is as “rules,” word pro practice, synonymous with 14b,
tended our rule passing- system. It. seems method, cedure, custom, and/or empowered indi strange rule has under that no one meaning any or the extent thereof, cated doubt as to power duty intention It was our thereunder. judges in our adopting advise the district the rule to possessed rights they and duties the same courts that judges with reference district courts United States purpose wisdom and evidence; comments unanimously determine; of the rule was for us adopted, right pursuant our what we believed to be duty; step keeping thought forward we it to be practice procedure, it,' and, modern ideas respect, profession in this that, we intended to advise they might expect in the thereafter trials to be conducted were conducted state courts same as If in this courts. we have failed United States district purpose, *12 imperfections English it is because preclude compre language a' more and definite, certain, hensive statement of and until some one more rule, clearly expressing adept more in its use submits a rule defining promulgated the intention of those who it, and profession accept we ask the to and use it in must its present only objection form. The to our comes from rule wisdom; doubt from who are loath those who its those to any procedural see advance in in methods the trial courts, challenged and when the rule is as indefinite and uncer supposed objection tain, it not real to be language rather than a itself, rule criticism the in which it is couched. should be noted It that some of the today approve prac- ablest writers of and commend the which, procedure permits. tice and our rule See: The Wigmore Law of et 1927; Journal Evidence, al., Society, p. American 1930, 8; Judicature Illinois June, p. Law 276; Vol. American Bar Association Review, p. p. Journal, Vol. Vol. 12, 599; Review, Harvard Law 424. portions
In other of this reference is made adopted by England” the “common law of our as it was legislatures, territorial and state from the act itself that the it should be noted and
language adopting used longer this “common law” little than rule under yet infinitely subject greater discussion, covers a scope; affecting rights, in its more and called into almost daily seriously profession, yet use our has no one objected scope, to it as indefinite uncertain, its challenged, nor advised, far we are has never been so serious controversies arisen as to its intent have meaning. seriously questioned (the
It cannot rule defined) being term used as hereinbefore the federal permits upon district courts comments the trial court the evidence. (4 1), (Astor),
In Carver v. 29 U. S. Jackson Pet. Story, determining right Mr. Justice to do so>,said: charge jury, upon of the court to the mere “With matters and with its commentaries fact, weight nothing this court has to do. evidence, Obser nature are vations understood to-be addressed jury; merely the judg’es for their as the ultimate consideration, fact; and are
of matters entitled to no more importance jury, weight than the in the exercise of judgment, give They their own choose to them. neither binding upon nor are understood to are, be, them, exposition as the true and conclusive of the evidence.” Carrington, (U. S.) In Cranch Smith Mr. 62, 71, speaking exception Marshall, Chief Justice of an judge charge refusal of a trial on the said: There can be no doubt of the the evidence, ‘‘ right party of a *13 any point opinion require of law which court on the the pertinent the court nor' that refusal of issue, to the exception; give opinion cause for an such furnishes required equally court cannot be but it is clear testimony give opinion the truth of to the an on ’’ any in case. Sup. Vicksburg In Putnam, Co. v. U. S. disposing exception Gray, 1,Ct. Mr. of an in Justice the trial which com evidence, court’s comments on the particularly ments are forceful and amount almost to the interesting direction of verdict, a makes observation upon practice in the federal courts: “In courts England, in those of from which of the United States as practice judge, submitting in derived, our a case may, jury, at his whenever he it discretion, to the thinks necessary arriving just to assist them at a conclusion, upon parts evidence, comment call attention to their important, express which he of it thinks expression opinion, facts; and the of such an incorrectly when stated, no rule of law is and all matters ultimately submitted to the determination of of fact are ’’ jury, reviewed on writ of error. cannot be Reports, Supreme p. In U. S. Court it is 7 Enc. practice presiding judge for the said: “It is usual at prius charge jury, up a nisi in his' take trial, proof, explain bearing facts and circumstances their points, legal on the declare are the controverted of the what ’’ rights parties arising out of them. quoting" page language At verbatim 50, Id., after1 Gray Vicksburg supra, Putnam, Mr. Justice Co. v. applies
is said: “And this rule both in civil and criminal compels cases. But there is no rule that in of court, making recapitulate statement, such all the items bearing upon single question. the evidence, nor even all power There on are, however,- limitations of a federal commenting court, on the facts a case when instruct- ing jury; implied limitations inherent in and from the ’’ very judicial nature of the office.
24 page say
At the has with refer- 49, Id., author this to practice ence to the in the state “In some of courts: up them [state courts] court neither the evi- sums charge jury opinion expresses dence a to nor an upon question charge strictly confined fact. Its is questions leaving to to discussed law, evidence be jury counsel, and to without the facts be decided commentary opinion by in most of the court. But practice adopted states the otherwise; have usages English justice, courts where the judge always up points sums out the evidence, and opinion ought conclusions which it; judgment from in his drawn submitting them, to the consideration and however, ’’ jury. (10th Ed.), In Wharton’s Criminal Procedure vol. III, p. judge right it 2176, §1736, “A stated: has a ex press opinion jury weight his to the on evidence, necessary and to comment thereon as much as he deems opinion for the course of and an justice, erroneous on expressed by judge said, matter of it fact, is. his ground charge, jury is no new trial, unless the thereby led to such believe that fact withdrawn from their consideration.” judge gomay
The extent to which a trial in comment ing on the evidence forth in is set Cook v. United States, * * “* (2d) 18 Fed. 50, 52, is said: wherein we think may say the line of demarcation between what a court expressing opinion in a criminal case on may say, facts, and what he not is to be drawn be expression partaking tween mere of such argumentative advocacy, leaving nature as amount to jury absolute to determine freedom the facts, argument to an such discussion as amounts and makes against the court fact an advocate the defendant. A merely umpire; judge trial is not moderator or neither ’’ advocate. is he an illustrating’ For recent cases extent w’hicha trial judge comment the evidence, see: Buchanan v.
25 (2d) 497; Morris v. 496, 15 Fed. United States, United Egan (2d) States, v. 22 131, 133; 19 Fed. United States, (2d) Eddington 24 778; States, Fed. v. United Fed. (2d) Reynolds 98 States, 51. also: U. See United L. 244. v. United S. Ed. See also: Starr 145, 167, Sup. for the rule Ct. States, 614, 624, U. S. interpretation thereof. to the recent our attention for defendant call Counsel *15 (2d) Bogileno 38 Fed. States, case v. United of comments. because where the trial court was reversed bribery, Bogileno being for tried In that case, only question dispute with which in intent was the the the money. paid plaintiff in its The trial court in error the question defendant, this comments said: “The that custody govern- having of the and in the been arrested to induce them to ment—whether he offered bribe this against drop charges appear the or not to as witnesses gave point offi- he the him. The evidence on that is that he after He admits cers-, gave a discussion with them, $400. purpose, money. gave it them He-admits he for-that * * * hardly dispute that be a about can so there fact. very dispute in the it there is little see In this case gave money, gave the the He admits evidence. he (Italics ours.) purpose bribery.” money the for Appeals, in The Court of an Circuit part: reversing judgment, Judge said, the Lewis, covering than two were less brief, “The instructions excerpts pages, these and we cannot believe that two- impress jury. In seem to us to the substance failed equivalent defendant to an instruction to find the to be beyond authority guilty, right of the which is duty jury to, court to do. It was: the exclusive de- gave agents termine whether he to induce the $400 drop charges against appear or not to as witnesses gave purpose, him. did not admit He that he it that for purpose bribery. gave or He that he for testified purpose. purpose assigned may it another The he for impressed court have as unreasonable and even un- pass upon It that. could but the court believable, question jury. question of his intent was a for jury’s deter- law, was an issue of and not of fact, preju- excerpts were mination. The conclusion that the (Italics escaped.” dicial the defendant cannot be ours..) Bogileno supra, case,
It will be observed that, appellate judge’s determined state- ment facts, incorrect, and his comments thereon, were comments were tantamount a direction guilty. to find the defendant (2d)
In Leslie States, 288, 289, v. United Fed. part.: comments which were, necessitated reversal this, gentlemen, guilty “It seems to defendant is me, put up crime; this seems me that he has a defense ’’ here that will not hold water under this evidence. many approving We have found lan federal cases guage emphatic much more in and drastic than very judge stant case.' The comments trial were Perhaps explicit brief. a more detailed and resume recapitulation of the been more evidence would have helpful jury, is. a matter of which the de *16 complain. fendant cannot Comments are to be in made of discretion the trial court. Horning In v. District Columbia, 254 U. S. Sup. althougli any, dispute Ct. there little, if as following approved. facts, to the comments were “In say you by you I bring will conclusion to a failure only in in case can arise a verdict from wilful and flagrant disregard of the evidence and law Ias have given .you, your obligation it to and a violation of as * * * jurors. gentlemen jury, course, I Of cannot you many guilty, tell in so words find defendant ’’ say determining1 what In amounts that. this case, and with reference these Mr. comments, Justice part: “Perhaps regrettable Holmes in said, there was peremptoriness jury tone—but were allowed the right, against technical if can so, called to decide be for them is all there was left the facts—and law and took the If and his witnesses stand. after the defendant any wrong purely it was formal suffered the defendant there was no we on the facts admitted said, as have since, guilt.” of his doubt
In we find: “At common 2308b, 16 C. J. section any statutory in the absence of constitutional or law, and may, charge jury, to the the trial court its restrictions, express opinion or an on dis- on the evidence comment puted questions provided questions such are ulti- fact, their, any mately jury for left without decision, they facts; how direction or advice as to shall find the practice prevails and this federal courts. Where practice prevails opinion properly this may directly expressed, inferentially,
he either or and the extent to which the court discuss the evidence submitting generally the case is within its sound discre- strong expressions upheld, tion. Even will he binding positive unless amount to a instruction or a way greatest direction to find or one the other. But the power, caution should he used in the exercise of this should be left free and untrammeled in the de- questions passed termination of of fact which are to be charge, on them; and the court should not as a matter particular proved, of law, that a fact is not even ” though the evidence is clear and uncontradicted. adoption Before the of rule 14b, neither the Consti- judges prohibited tution nor statute, trial were in our commenting- upon state from the evidence, but there is authority permitting direct them to do so. An act of legislature, adopted approved our territorial on Oc- provided tober England, that the common 11,1861, law of prior year it existed reign to the fourth of exceptions important, James with not herein I, was repealed full force and effect until ¡considered *17 legislature. adopted upon This act. was our admis- sion to statehood, and re-enacted as section 156, G-eneral unchanged Colorado, Laws of 1877. It remains to this day, L. 1921. 6516, as section “James and is found C. England proclaimed king on the of of 24th the I. was People, A. March, 68, 69. D. 1603.” Green v. Colo. adopted ap- legislature 1861, In the territorial proved p. Colo., section of read- 145, 321, 1861, Statutes ing": “Section All 145. trials criminal offenses shall according law, be conducted course of the common except points when this mode, act out different rules of evidence also of common law unless shall, changed binding juries on act, all courts and ’’ in criminal cases. adopted by legislature (sec section This our first 1877) exception tion G. and, L. with the of an amend important (Session 227), p. not herein ment, Laws 1925, is re-enacted as L. section C. 1921.
A search of the of statutes this state reveals that neither the last two mentioned sections has re- been pealed, and, we must determine the therefore, common procedure prior year reign law the fourth gone through I. James It was: “When the evidence is judge, presence on sides, both parties, up counsel, and all others, sums whole jury; superfluous omitting" the ing all circumstances, observ- question principal
wherein main lies, issue stating given support what evidence has been it, necessary remarks he for their such thinks direction giving arising them his matters law upon Cooley’s p. book Blackstone, III, evidence.” 376. right judge upon trial evi- comment recognized
dence was and authorized at common law, adopting the common section L. we law, 7099, C. necessarily adopted part applicable thereof trial criminal as we cases. So far can there determine, inferentially directly prohibiting is no statute com- Experience the evidence. ments that such has demonstrated
practice has resulted a much more success- satisfactory ful and administration than heretofore ob- *18 Evidence, Law of in onr state courts. See: tained Wigmore Appendix et A. al., may repeat- he said that cases have been reversed
It edly by and remarks this court because comments inadvertently concerning' made trial evidence, judge during and while trial, the course this is right to true, it is also well to remember that the do so justified has never been defended or as a common law right, directly passed and, therefore, this has never upon question light of the common law, Irrespective section L. 1921. 7099, C. of our 14b, rule so long upon as section L. 7099, G. remains our 1921, statute right granted books, to comment the evidence is judges. our trial may
It writing be said that the comments should be reduced to and submitted with other written in given op structions, and that counsel should be the same portunity objecting thereto as to written instructions. The answer advisory; is that such comments are in no respect binding upon jury, are not hence instruc precede tions. arguments Therefore, need not writing. nor be exposi reduced to “An instruction is an principles tion of applicable of law to a case, phase jury some branch or of a which the case, are bound apply establishing in order to render the verdict, rights parties in accordance with the facts proved.” People, Wickham v. 345, 351, Colo. 93 Pac. expressly 478. pro Sections 7104 and L. 1921, C. covering vide written instructions the law in the case. nothing There is pertaining the above sections to the concern the comments on facts of the necessity the evidence which of suggest
case rather than the law. To comments should be written and submitted to the with its instructions would unprecedented, result confusing, pernicious practice; novel, such has never practice, been the where comments are either English in our federal or courts, orally arguments made after the counsel.
It be said that since our rule became effec September tive on any applica could not have tion to the prior trial for a crime committed date upon which per it came into force and effect, that to mit its use under these circumstances would be violative of the United States and Colorado Constitutions, *19 pogt (Constitution reference to ex facto laws of the United States, 1, article IX sections and X, and Consti of 11.) tution the state of Colorado, 2, article section In jurisdiction question our post of ex facto laws is dis length Garvey People, cussed at Am. 559, v. 6 Colo. 45 Rep. support authority 531, in which case is found Kring Sup. v. Missouri, 107 U. S. 221, Ct. 443, from which latter case considerable of the quoted. Garvey supra, In the case, there two, were only propositions urged by two, defendant’s counsel, the determination of the case must be read and under light propositions, stood in the of these which were: alleged “That after the of commission offense and applicable before trial, law to such cases was so change amended as to the rule evidence amd iiwrease of punishment.” and “That the law under which the repealed offefnsewas committed was before trial, without saving clause, there was no law in existence when against the trial was had which the defendant had of ’’ Garvey supra, fended. In the decision in the case, deprived [amended said: “this law statute] prisoner right existing of a in his at of defense favor employed, time the commission ivhich, his crime, of of if right would have saved his This did not exist at life. people, representatives time of and the whose trial, away, say had taken could be heard to that the prisoner would not have availed of himself it.” The Garvey supra, light case, in the of the facts discus opinion, and the law announced with in the sion reference clearly distinguish it from the casé at bar, and thereto, justify application it can have no the statement that Kring-Missouri herein. consideration the case under supra, easily distinguished at from the case is so case, except bar thereto that little need he said reference recently to call attention to the fact that it been dis has distinguished by Supreme cussed and Court United States cases of Beazell v. Ohio and Chatfield Sup. Ohio, 269 U. S. 68. Beazell and Chat- Ct. jointly charged field were with a and moved for crime, separate provisions under the statute trials of an Ohio effective at the time of the commission of offense granted separate matter which, terms, its trials as a right, upon Subsequent motion. commission prior therefor, hut to the trial the statute offense, separate granting right trials as a matter of was granting separate amended so that thereafter the tri discretionary judge. als should he with the trial Defend ’ ants motions and the defendants contended denied, were that this denial was because the amended statute error, post provisions an ex law, facto violative article section Constitution the United * * * providing pass that: “No an *20 States, state shall ** * * * post discussing ex law, facto and dis In posing Supreme opin of this in contention, Court, an by distinguished Kring-Mis ion Mr. Justice Stone, supra, stating-: souri case,
“Expressions
judicial opin
are to
he found
earlier
may
ions to the effect
the constitutional limitation
transgressed he
or
alterations
the rules of evidence
procedure.
Cummings
Bull,
See Calder v.
3 Dall. 386, 390;
Kring Missouri,
326;
4
v.
Missouri,
v. State
Wall. 277,
of
may
procedural
232.
107
And there
be
221, 228,
U. S.
changes
operate
deny
which
to the accused a defense
under the
time of the com
available
laws
force at the
of his
or which
him in
offense,
mission
otherwise affect
arbitrary
fall within the
such a harsh and
manner as to
prohibition. Kring Missouri,
constitutional
v.
107 U. S.
Utah,
Thompson
221;
v.
170
343. But it
now
U. S.
is
statutory changes in
well
the mode of trial
settled
deprive
or
of
which do not
evidence,
the rules
accused
-which,operate only
of a
un-
defense and
in a limited and
disadvantage,
prohib-
substantial manner to-his
not
enlarges-
A
ited.
indictment,
statute
after
which,
the class
persons
who
be
at the trial,
witnesses
remov-
ing
disqualification
persons
felony,
convicted of
post
not
Hopt
an ex
facto law.
v. Utah,
“Just what be alterations of will be held pro- transgress, the constitutional sufficient moment to hibition a formula or stated cannot embraced within general proposition. in a The distinction is de- one of gree. provision But the constitutional was intended to personal rights against arbitrary secure substantial oppressive legislation, Malloy v. see South Carolina, 237 legislative U. S. 180, to limit not control procedure remedies and modes of which do not affect Mississippi, matters of substance. See Gibson v. 162 U. Thompson supra, S. Missouri, 565, 590; 386; Mallett v. North 181 U. S. 597. Carolina, legislation
“The here concerned restored a mode appropriate trial law, deemed at common discretion- ary power separate in the court to trials. do direct We regard oppressive applied it as harsh or plaintiffs in error.” do not, wish to be
We understood however, saying right procedure as- our to make rules of granted or limited section -Code of Pro Civil *21 any right from 1921. Aside common law or cedure, statu tory power grant, procedure of our rules is make right. VI, constitutional Section article of the Consti provides judicial of tution of the state power that the Colorado, shall be vested in 2 courts; state section
33
superintending
general
charges
con
“a
court with
this
III of the same
and article
courts,”
inferior
trol over all
government
provides
be di
shall
that the
Constitution
judicial
departments,
one,
is
which the
of
into three
vided
department
provides
shall exercise
that neither
and also
except
any powers
belonging
properly
other,
permitted.
expressly
A
or
directed
the Constitution
that
per
the statement
warrants
search of the Constitution
directing
expressly
provision
or
therein
there is no
departments
legislative
mitting
to make
or executive
judicial
procedure in the
de
with reference to trial
rules
partment
upon
government.
are not called
of
We
power
legislative depart
right
determine what
and
acquiring
procedure
possesses,
ment
with reference
subject
jurisdiction
person
matter, but the
question
right, irre
with which we are concerned
spective of the statutes and the common
but in con
law,
formity
provisions,
with constitutional
to make rules
procedural
reference to
matters
the conduct
judicial department.
trials. This is inherent
See:
Cooley’s
1103;
294;
12
6 R.
L.
1
C. J.
C.
Constitutional
(8th Ed.)
23 Illinois. Law
541-554;
Review,
Limitations
Society,
276;
December,
Journal American Judicature
Superior
1929;
148
promulgating, enforcing procedure such of for rules necessary proper the trial of actions as it deems performing its constitutional functions. In our scheme government, responsibilities presum- thereof are ably equally department perform and each divided, must accept responsibilities its own tasks, and therefor. many years If we assume that for the courts have sur- power making rendered, toi a certain extent, rule legislative department, the practice, and if assume that such a we long period gave validity
over a time, by department, legislative exercise that function legislative questions pro- statutes and the cedure, enforcement of those statutes adoption courts, amounted to an thereof the courts such statutes as rules of all has at court, now been set legislature passing rest the solemn act of the a stat- recognizing power ute the constitutional of the courts to procedure. make own its rules for its own merely pronouncement This rule is of the ex isting interfering any law—in nowise constitutional right properly of a if will defendant—and, have the used, salutary assisting just effect of determination cases. juries very susceptible
It be said to, and by, judge. influenced remarks and comments of a trial complimentary This who men are under oath according and instructions to find to the law and the evi- assuming premise, urged but, dence, this cannot be case, in the instant because there were two defendants on judge’s and the trial, force trial comments was equally yet directed guilty, both, towards found one agree guilt and failed to as to the of the other. good appearing, For cause it is further ordered that period of defendant’s incarceration under his said begin January from sentence to run 1,1931.
Judgment affirmed. dissent. Me. Justice Butler Justice Hilliard Mr. Butler, dissenting. Mr.. Justice judgment, from affirmance of
Prom the oral com- holding court’s error in the no that there was *23 of the jury conclusion at the the evidence to the on ments compelled arguments jury, dissent. I am to the guilt, their admitted Morrisons the two At the trial any beyond testimony proved it by their own sworn and gave in- its written After the court doubt. reasonable argu- jury had made their counsel the and structions to jury orally in forth the as set court instructed ments, the majority opinion. circumstances, that In the the equivalent opinion of the in the that, to a statement leaving though judge, guilty, to' the the defendant was jury question the final determination of the of the de- guilt. excepted fendant’s The defendant’s counsel to the giving of the instruction. Legislature being passed
In 1913 the section act, an conferring upon 444 of our Code of this Procedure, Civil power prescribe pro practice court the rules of cedure in all of the of record. In the exercise courts power Sep adopted conferred, 14b, thus we rule effective ‘‘ govern provides tember ing 1929, that, which The rules 1, judges shall be
comments on evidence district now in courts.” those in the United States district force majority quoted 7099, Sections 6516 the L., C. opinion, of, with 28 must be read connection section p. 1861, Laws of 282,-Session the Practice Act 1861, p. being R. 1868,- section S. now section ‘‘ reading: in all both civil court, cases, The district L., C. shallLonly jury petit and criminal. to the instruct ’’ denying case; and our decisions law power express opin judge the district court has his weight condemning evidence, ion on the and even questions of a asked witness that “tended jury a belief that, in the minds of induce ’’ guilty. opinion, Sopris Truax, court’s 1 defendant was v. People, 89; v. 26 56 Pac. 169, 175, Colo. Fincher Colo. 36 Ryan People, Lay
902; 99, 105, 306; Colo. Pac. People, cock v. 880. 441, 182 Colo. Pac.
/ purpose power For our source of case, power, important. to make now rules have not We got only question however we it. for consideration judge properly whether exercised the district power we him 14b. conferred rule practice adopted by that rule? It'is
What is the practice, permissible many followed, not cases judge, jury, federal district instructions only up the law, to instruct on but to sum the evi- dence SO'as to refresh the recollection of the up thereto; reference in the take facts circumstances explain bearing evidence their on contro- points; jury’s parts verted call the attention to the important, evidence that he thinks to the relation of the various items of evidence to each and to the other, *24 strength testimony of the of witnesses, some the testimony express weakness of the of others; and his opinion weight being as the to of careful, the evidence, jury opinion however, to caution the that such is not binding jury. properly requires on the doTo this indus- try practice ability. exceptional present, both When are the justice;
is a valuable of aid the administration when either an is obstruction rather than an absent, it summing up aid. The instructions on the the of the law, expression evidence, and the of thereon, comments judge’s opinion weight the taken charge, to the of the all evidence, as
together, instruction, constitute court’s or jury. to-the practice just practice described is the which practitioners practice
federal
familiar;
that the
supposed
adopted,
adopted,
bar
was
in
fact was
by
supposed
rule 14b. It'was not
that,
of
instead
sum-
ming up
commenting
part
the evidence and
as
thereon,
jury,
orally say
judge
Ms instructions to the
the
a
would
££
jury
arguments,
at the close of the
Gentlemen, am
opinion
guilty,
my opin-
that the defendant is
’’
binding-upon you.
tbe
substance,
ion
In
that was
is not
given by
judge
instruction
tbe
in
case.
trial
majority opinion
In tbe
it is
that com-
said,
effect,
ments on tbe
form no
evidence are not instructions and
part of
instructions,
tbe
need not conform
therefore,
and,
requirements concerning
to the
instructions; and a defi-
quoted
People,
opinion
nition is
from the
in Wickham v.
Every opinion
41 Colo.
It was, course, on the admissi- bility In evidence. we defined an instruc- only tion on the kind of at law, instruction that time permitted in this state. The decision and the definition application present no have case. judge charges jury
At common law the instructs, quo on the law and on the facts. This is attested majority opinion. tations in the In the C'ode Criminal Procedure drafted committee National Crime practice adopted. Commission the common law It * * * says: judge “In the conduct of shall trial, powers have the same at common as law. He shall in applicable struct the to the law the case1, in said instructions malee such comments on the evi * * * opinion, justice dence as, interests *25 may require.” Willoughby, Judicial Administration, practice recognized 458. by That was known to and our legislature supra,-it when, Practice Act, permitted only, thereby instructions on the law forbid ding- Sopris instructions on the In Truax, facts. years
Colo. decided seven after the enactment of that prohibitory we said section, that section “courts confined, instructing jur-
are to the law of the case when By ies.” our rule we removed that so that limitation, judges may now district instruct on both the law and summing-up facts. The of the evidence and the comments parts thereon are instructions, should con- requirements relating form to the of the law thereto. According practice to our in criminal cases, instruc- writing; they given argu- tions are in must be before (C. §7104); they ments of L. counsel must be submitted to counsel so to afford “a counsel reasonable time * * * opportunity prepare to [them] examine and to present specific objections thereto before in- such given jury” (Supreme structions are Court rule 7); they may argu- be commented on counsel their jury (C. §7104); they “may ments to the by L. be taken (C. §7105). in their retirement” L. In the present requirements case not one of these was observed. requirements There practice. are no such in the federal permits judges Rule 14b our district to make comments of such judges nature and character as federal district permitted respects, malee. In all other our stat- relating utes and our rule force and effect. instructions remain in frill practice adopted In order to malee the the rule fit system, into our impor- there should have been several changes tant in the statutes and our If rules. the bar purpose had adopt been made aware of our the rule (which urged by me), suggestions might course was have been made difficulty. that would have obviated the True, question .the practice the merits of the federal had general way, been discussed in a and a few favored the practice; discussing far from different de- sirability incorporating practice system, into our steps necessary accomplish and the that result so toas existing make practice. the new harmonize with the adopting In grafted part rule 14b, seems that we practice upon practice of the federal to which it ill- adapted; change figure, square or, we inserted a *26 necessary making the peg without hole a round into prac- practice and our state adjustments. federal application difficult as to make so different tice are n ofour rule. We part only adopted the federal a small the diffi- practice, confronted we now are trial into combining elements inharmonious these cult-task satisfactory will nearly circumstances as union as a permit.* giving in the the instruction
It to- me seems given it the court committed was- and at the time manner rights prejudicial the error was an error, People, 26 169, 175, Colo. In Fincher the defendant. gen as a that, the fact we attention to 902, Pac. called juries readily adopt view or eral judge upon any rule, them, matter before “because his ad qualifications legal ques superior to deal with mitted part or an inclination their to shirk their re tions, ’’ sponsibility by adopting such views. And in Holland v. People, 30 Colo. 69 Pac. we said: “Prom position by judge may, he his of a uncon actions, sciously upon jury materially an so' exert influence prejudice rights and of one or the other of interests litigants. By may conduct, words or he unintention ally inject regarding views into box his own Jurors, merits of a cause. either from an estimation judge "the determine the merits- of abilities of a a con escaping troversy, responsibilities or as a means of easily discharge, are, doubt, must no influ which by judge enced spect the views which entertain with re present trial.” In the case the evi to the case on majority opinion—indeed, all detailed dence by prosecution— incriminating evidence introduced flatly the de introduced was contradicted evidence judge’s supplemental instruction oral fense; and the bluntly expressing opinion, the defend effect, guilty, in the other from detached, ant as was, was permitted orally given time not and at a structions, g*ave prominence practice, and excessive it undue our emphasis, profound calculated to malee a im- *27 pression jury. jurors on The the that some of the fact adopt judge’s opinion Eoy guilt the did not as to the (John’s son), they Kolkman is no that indication did not give great, controlling, weight opinion even to his as to guilt the of John. Indeed, those who voted convict to Eoy may have been influenced, even induced to do so judge’s expression opinion Eoy guilty. the of his was Appeals In 1930 the Circuit Court of for this circuit (2d) decided the case of Leslie v. United States, Fed. 288. dispute. here, jury as There, the facts were in The in- language: structions to the contained this “It seems gentlemen, guilty to me, that this defendant is of this put up crime; it seems me that he has a defense here ’’ will not hold water under this evidence. The jury opinion also instructed the court’s was not binding, jury might “absolutely disregard and the it.” The instruction, in effect, is not different from the one given conspicuous at the Kolkman trial, but it was less emphatic because it was not detached from other given separately. giving instructions and For the judgment opinion instruction the was reversed. In the the court said: “It was well in v. said United Weare supra, jury easily States, that: ‘The can be misled opinion the court. Its members are sensitive to the jury the court, and it is not a fair trial when the court legitimate argue turns from instructions as law to prosecution. government facts favor of the provides argue jury. an officerto the case to That is part duty. not a precluded, court’s is He not expressing opinion from course, of the facts, but he is precluded giving charge from a one-sided in the nature argument.’ an We are of charge that foregoing in this case within falls criticism, and was not jury.” cured the later advice to the Circuit Judges Lewis concurring McDermott, opin- their going ion, said of the instruction: “That too far.” Horning A few words toas v. District Columbia, majority opinion that in it is said 135. In the 254 U. S. any, dispute if as little, that case “there was.none at “little”; than there facts.” There was less quote opinion Mr. Holmes: all. from Justice opin- judge’s expressing an “This was not a case of the right a have had he would evidence, ion 480. The States, U. S. do. Graham United say dispute, and what he did was to so %oere facts lay applicable them. In such the law and to down obviously jury, if do their the function of the case duty, judge cannot direct than formal. The is little more bring power and the has it is true, a verdict facts. But the law and teeth of both in verdict always duty judge right to tell them what has the *28 may found, of facts law is this or that state that when facts are the none less the and he can do same the agreed agreed. judge If the that facts the state may say dispute so fact and when there is no he also, Perhaps although agreement. there has been no formal regrettable peremptoriness tone—but the there a was right, if it can be called allowed the technical were against to decide the law and the that is SO', facts—and all there was left for and his them after defendant the any took If witnesses the stand. the defendant suffered wrong purely it was formal we have on the since, said, guilt. admitted there was no doubt Act facts February 1181.” The statute re- 26, 48, c. Stat. 1919, disregard errors technical ferred directs courts rights parties. that do not affect the substantial entirely The situation here different from that the Horning’ present for in case, case the evidence was in If direct conflict. that had been the the Horn- situation ing opinions case, case, it is from both clear, judgment would have been reversed because of the judge’s jury. jus- trial statement to the was, As it four including justice, the chief In tices, dissented. the dis- opinion senting it said: if was “It is said that the de- any wrong purely fendant suffered formal; was that the error is of such a character as not to afford, February since the Act of c. 40 Stat. 1181, reversing judgment a basis for of the lower court. by jury guilty Whether a defendant is found or is de- by judge clared to be so under the Federal not, Con- ’’ formality. a mere stitution, The did not have the fair defendant, John Kolkman, pursued by trial which The to> he was entitled. course judge the trial was not in accordance with the common practice, practice practice. law or the federal state foregoing join Entertaining I am unable views, majority my placing upon brethren in course pursued by stamp judge approval. The the trial judgment, my opinion, be reversed. should foregoing ago.
The was written several weeks Since majority opinion time been amended so as has question constitutionality to cover the of the rule power and the source of this court’s to malee rules of practice procedure. language subject on that majority importance assumes added from Legislature just passed ap- fact that has an the proved April act, amending section 444 of 14, 1931, the Code by adding: of Civil Procedure “Provided, that no rule Supreme permitting* shall be made Court or allow- ing judges trial of record courts to comment on given evidence on the trial.” power
Whether make such rule virtue of *29 the act of or was 1913, inherent in we court, it; had purpose that is sufficient for the of a decision in this case. It seems to me that discussion in is not necessary proper place to a decision, that it has no in the opinion, and that it is mere dictum. However, doc- trine announced in far-reaching, that dictum is so so rev- olutionary (if may expression), use the that it should permitted go unchallenged. not be language used possess indicates that this court claims to the exclusive power prescribe governing procedure rules in trial gives courts. In warning effect, this Legisla-
43 more of civil There be no codes ture: Hands off! procedure, must legislative no more thereof; or amendments procedure concerning in either civil or criminal acts cases. Such not be tolerated interference will court./
Let us see warrant there is for the court’s as what sumption power regulating of exclusive to make rules practice procedure in In trial courts. the absence legislation, procedure supreme necessity, may regulate court, Congress passed
in that court.
In 1792
had
no
concerning procedure
Supreme
act
in
For
Court .
ITayburn’s
that reason the
in
court,
2
case,
409,
Dallas
power.
Judiciary
exercised
passed
In 1789 the
Act,
by Congress,
Supreme
conferred
Court the
power
procedure
equity
to make
in
rules
suits
admiralty in circuit and district courts, “not inconsistent
with the laws of the United
R.
913.
1875,
States.”
S.
sec.
Equity
adopted by
power
rules were
virtue of the
so
granted,
any
power
not
the exercise of
inherent
resid
ing
passed.
In
court.
1842 a similar act was
R. S.
Angeles
Mfg. Corporation
1875, sec. 917. In Los
Brush
v.
ing through
speak
James,
Chief Justice Taft, said: given power Revised Statutes, this court is from time to any manner time, not with the inconsistent laws of the regulate practice United in the whole States, to be used equity admiralty suits the district courts— Wayman v. 1. Southard, Wheat. This was taken from original Judiciary §13 of Act, Stat. c. 20.” Sec Judiciary provided: tion 17 of the Act of 1789 “That all * * * power the said courts shall have to malee and necessary orderly conducting all rules establish provided cottrts, in the said such business rules repugnant Way to the laws of the States.” In United man Southard, Wheat. Chief Justice Marshall with reference to that said, of act, section: “The 17th section Judiciary Act, and the 7th section of the additional
empotver respectively regulate the courts their
44 practice. certainly It will not be contended that example, might by congress. not be done The courts, may directing returning malee rules of writs and processes, filing pleadings, of declarations and other things description. and other of the same It will not be things might contended that these be done not legislature, yet without the it courts; intervention of the 'alleged power may is not that the on be conferred ” judicial department. In Bank the United States “Congress v. might regulate Halstead, Wheat. 51, 61, the court said: practice
the whole if was courts, expedient [by power deemed so to do: but this is vested Congress] act of in the courts.” Beginning year continuing with the 1789 and to the present day—for years—Congress passed has acts regulating practice procedure in both civil and crim- uniformly inal have been cases, such acts enforced binding upon litigants. as well courts as as
Congress passed conferring upon an act the Court of Appeals power of the District of Columbia the to “make regulations necessary such rules and proper brought for the transaction of the business to be ’’ before it. In the case of In Hien, re 166 U. S. 1‘ Supreme general Court said that, The undoubt- rule edly justice possess power is that courts of the inherent conflicting to make and frame reasonable rules not express statute”; but held statute “authorized” adopt the court in rule involved the suit. procedure court had reference to rules before the court making not before other court. them, some Congress passed conforming prac
In an act practice in tice federal trial courts the state courts. Similar statutes have been enacted from time to Supreme time. The Court holds that such acts are powers Congress. within the constitutional Thus, Indianapolis, etc., Horst, Railroad Co. v. 93 U. S. Conformity which the Act was considered, the court said: passed, “Where a State force when law, the act was *31 45 of and forms action, has abolished different forms the the pleading appropriate of simple to and has substituted a them,
petition setting complaint or forth facts, the prescribed subsequent proceedings pleading the practice to raise the issues of law or in case, fact the such undoubtedly obligatory upon law is the courts of the locality.” p. in United States See C. et J., 797, seq. Horning In District S. cited Columbia, 135, U.
supra majority opinion recog- and in the herein, court binding Congress directing- nized the force of the act disregard courts to technical errors that do not affect rights parties. substantial of the many years
For the American Bar Association has appealed Congress, power, as the source of to enact reading Association’s bill as follows: “That the Su preme Court of power the United States shall have the prescribe, by general for the district rules, courts of the United States and for the courts of the District process, pleadings, Columbia, the forms writs, and mo practice procedure tions, and the in actions at law.” Rep., p. A. B. A. message Congress 515. In his in strongly Taft President said: “I am convinced that the improving judicial procedure best method of at empower law Supreme is to through Court to do it the medium of the equity.” rules of the court, inas A. B. Rep. p. A. Speaking 1926, 519. before the American Bar Association “Congress 1922, Chief Justice Taft said: beginning- government from of the has committed to Supreme .duty power Court to make the rules equity, admiralty, the rules in and the rules in bank ruptcy. Moreover, this American Bar Association has years pressing upon Congress delega some been power Supreme regulate by tion of to the Court to rule procedure Rep. law.” A. suits at B. A. 250, 260. throughout country The state bar associations adopted urging Congress pass resolutions an act “authorizing” Supreme prescribe Court to rules practice procedure
regulating in law actions adopted Bar Association district courts. The Colorado p. Rep. unanimously. B. A. such a resolution C. 115. practice federal is true state
"Whatis true of the passed practice. beginning legislatures have Prom the practice procedure, prior to this acts and codes questioned power legis- decision no has many Though judges lature to do so. accustomed practice opposed to the of Civil common law were Code legislature power of the Procedure, none denied the enact it. *32 Legis-
At its first session, 1861, held in the territorial passed practice lature of Colorado' act. After Colorado held Legislature, became a state the session, at its first in 1877, enacted the Procedure. With ref- Code Civil present erence to the in Walton said, this court v. Code, validity 86 35 : of the of that Walton, Colo. “No doubt 1, recognizing* code is entertained”; thus the constitutional power Legislature regulating prac- of the to enact laws procedure. tice and The act 444 of 1913 section is reports recognizing Code. Our are full of cases that such power Legislature obliga- acts are within the and the tory upon only Sopris the courts. Three will be cited. Truax, 89; 506, Colo. Baker v. 20 Colo. 39 Pac. Barton, Cary Supply 65; Co., v. Mine and Smelter 53 Colo. 129Pac. 230. ‘‘ power practice to The make court, rules of in this inconsistent with the state,” constitution or laws of this by was conferred and L., court section C. pursuant power we made rules conferred. thus power prescribe The court now claims the exclusive governing practice procedure rules in other .courts. authority “In the absence of under either the con- some power appellate stitution or a an no statute, court has binding as to make rules which are practice on an inferior court p. proceedings in 904. J., latter.” C. power It III is claimed is conferred article that govern- powers partitioning Constitution, departments, 1 of article among section three ment ‘‘ except power, vesting judicial inas the Constitution VI, argu- Logically, provided,” courts. otherwise belongs procedure regulate power ment is this: Supreme exclusively judiciary: therefore, to the to the pro- regulate power exclusively belongs Court other only in all the also court, cedure, not assumption fallacy apparent. is There an courts. The judiciary—an as- Supreme Court that the alone French sumption strikingly of a certain similar to By king concerning virtue the state. relation to judiciary of the Su- consists article VI, section 1 of county courts, preme courts, the district Court, Assuming provided law. such other courts as rule-making case, is not the what power belongs have seen we belongs exclusively to all courts, Supreme each court alone; Court the having power not to courts, procedure governing in that to malee rules If broader in some other. has that court, not express provision, power, anof it must be reason superintending other an control over the as incident to its express provision, courts. There is no such other than superintending the act of 1931; amended subject regulation control over inferior courts is made to' *33 department. lawmaking* and limitation 2, the Section * * * supreme article as follows: “The court VT, general superintending* shall have a in- control over all regulations ferior courts, under and limitations as such may prescribed by be shows an law.” Constitution permit Legislature regulate procedure, intention to the to only placed upon power being* the in limitation found reading: 25,'
section article of the Constitution, V, assembly general pass special “The shall local or * * * ’ regulating practice justice laws ’; the courts of provides: and in section 28, article which “All laws VI, relating general opera- to courts shall and of uniform * * * throughout proceedings tion the state; and the practices grade,
and or of all the courts the same class * * ’ * ’ regulated by so far as shall be uniform. law, sponsored by The act of 1913 the Bar Colorado spe “with Association. It was. drawn its committee supra. cial B. A. reference” C. VI, to section article 2, Rep. p. 132, 325. In Lamb, Ernst Colo. power gave to Pac. prescribe we this held that that act court practice procedure, it was not rules delegation legislative power, is consti and that it pro “was tutional. We said mulgated by rule there involved that the authority act of this court under the sponsored the March were bar 3, 1913.” Similar bills associations of In other state words, other states. the appealed bar the associations of this and other states legislative department, power, the to confer source of upon supreme power prescribe several courts practice procedure rules of in inferior courts. We now are called to believe that from dates day highest of their creation to this the na- highest including tion court, state this courts, through ignorance, timidity apathy, permitted have legislative department usurp power ju- diciary; that the American Bar Association bar wrong associations of this and other states were all legislative appealing department as the source of power; passed that the Colorado act of 1913 was not any rule-maldng power upon confer but be- court, Legislature cause the had come to a realization of its mis- passing conduct Practice of 1861, Act the Code of prescribing practice Civil Procedure and the acts procedure repenting usurpa- in criminal and, cases, of its passed power tion, act order to restore stolen to the court. 27,300
Of the members American Bar Associa- (A. Rep. p. 1408), expressed tion A.B. several have opinion; majority views similar those found in the expressing one of them—one the ablest—after today, seventy- concludes: “It views, be that after
49 proced- practice prolific years acts and of codes five pronounce legislation, go such far as to we so can’t ural legislative operations of a coordi- with the interference Perhaps department unconstitutional. nate to be ground could not have that the courts far debatable so Today, legislative of that domain. annexation resisted legislature possibly, that the enact we must concede procedtire practice 12 A. detailed acts.” codes of B. 1926) p. (Sept., 601. A. Jour. majority opinion cited in the
Most authorities .the position taken in the case sustain the on this branch of recognizes dissenting opinion. p. Thus, J., 1103, C. procedure, provided validity concerning of statutes any pro deprive do-not the accused substantial says: tection. And 6 L. 294 the same effect. R. C. is to It making changes remedy procedure “Statutes in the always law-making within the discretion power.” (8th Cooley’s And Constitutional Limitations Ed.) ‘‘ says, page 551-52 552: is to the same effect. at It * * * legislature may altogether prescribe The differ procedure though ent it cannot modes of discretion, its lawfully, doing, any dispense we think, so those protections existing substantial with which the law sur ’’ person Supe rounds the accused of crime. In State rior Court, Wash. 267 Pac. cited in the ma jority opinion, legislative there was involved a act “au thorizing” Supreme relating Court to make rules practice procedure courts state. suggested question rule-making whether the
power purely judicial was not function, and referred Hayburn’s Supreme case, Dallas where the legislation, Court of the States, United in the absence of already adopted practice English noted, of King’s Chancery practice courts of Bench and for the Supreme prac Court—not, it will be observed, for the Washington tice in the inferior federal courts. The point court concluded, that “the however, here in contro versy can be decided fara more stable foundation,” *35 Legis-
and held that the act constitutional; was that may deleg-atepower Supreme lature to the Court to make rules for other courts. in The article the December, 1929, number of Journal of American Judicature Soci- ety, majority opinion, also cited in the discusses Washington supra, says: safety case, “As to the permitting Supreme regulate pro- Court criminal nearly cedure the doubters should recall the fact in rule-making power all states the conferred, Washington, by legislature repeal which can its act at any authority.” time and reassume its accustomed majority opinion quotation
In the there is a from clearly 269 U. S. which Ohio, 167, Chatfield recognizes legislative department power that the has the pass regulating procedure. Speaking pro acts forbidding vision of pass the Constitution states to ex post provision facto laws, the court said that that legislative not intended “to limit the control of remedies procedure and modes of which do not affect matters of ’’ substance. majority opinion, only In the recognizes, this court not upon, binding page insists effect of section 321, of the statutes now section L.,C. adopting procedure the common law trial rules “except chapter points when evidence, this out a differ- adopting ent mode”; and section 6516, L.,C. the common ‘‘ ’’ England, law of applicable. so far as the same is says that as “neither of the two last mentioned sec- * * * repealed, tions has been we must determine the procedure,” common law Legis- etc. In other words, having prescribed procedure, lature the courts are by bound its action. pretension So it seems that the court’s to exclusive power regulating practice procedure to make rules in other courts respect- has no constitutional I warrant. fully possess submit that the court does not the exclusive rule-making power claimed it, unless, we as- indeed, super-power sume that some resides the court, and in- long dis- principle since doctrine, akin voke some king divine rules and abandoned, credited right. just concurring opinions specially have been
Two my Burke brother me. The one written handed to expressed strong view, contains confirmation dissenting opinion, ex- the court does not have procedure power regulate in the trial clusive join praise work courts. bestowed *36 request performed the the at Institute, American Law organizations very highest standing. institute The of the prepared for sub- Procedure a model Code of Criminal throughout legislatures the United mission to the state procedure from arrest to and States. It covers the entire including appeal It of the sentence. and the execution provision conferring. upon the trial courts contains jury, power, giving to comment the in its instructions to the of- In introduction institute the evidence. the presen- cooperate preparing, “for with the bar1in fers to “embodying provi- legislature,” the tation to the bills recognition of the a clear sions of the Code.” This is pro- power regulate legislative department repudiation emphatic an cedure in the and courts, exclusively ju- power belongs claim that diciary. adopts The contention that the com- 7099, L., section C. impliedly con- mon law method of trial in criminal cases Legislature power. has such That section fesses that procedure, “except adopts when common law trial chapter points mode.” section this out a different That very chapter Compiled Laws; and that 153 of the 7105) points chapter (sec. mode concern- out a different namely, ing' court shall in- that the district instructions-; only. on the law struct the comparison and state constitutions
A of the federal majority position in the not aid the assumed does and in concurring opinion. my The fed- brother Burke’s judicial power of the United eral Constitution vests the any exception, in the States, without reservation or Su- preme If, Court and the inferior courts. as claimed regulate pro- majority opinion, power inherently exclusively judicial power, cedure is. and Supreme alone—possesses federal courts—not the Court power; yet Congress we exclusive have seen that always power, vested negatives has which with, exercised, possession the exclusive thereof the courts. provisions The III Colorado Constitu- article express tion no more the rule both fed- than enforced namely, department eral and courts; state that one government usurp powers belong- properly shall ing to another. There are these differences between federal Constitution and the state Constitution: judicial power any former vests the- the courts without exception, reservation whereas latter vests power “except courts, as in the Constitution other- provided” (Art. 2); wise §§1 VI, section of “superintending article VI, court’s control” over ‘‘ subject inferior regulations courts is made to such prescribed by limitations as law”; and section 25 recognize leg- of article V and section of article VI power regulate practice procedure islative *37 courts.
Me. Justice Hilliaed, dissenting. expressed
I opinion my concur in the views in the brother reasons I Butler, since believe are additional there
why
judgment
propose
should be reversed I
length.
set
to
them
at
out
some
I am in accord with the
statement
concern-
rule
ing conspiracy
testimony showing-
and the admission of
conspirators
made
statements
one of the
in further-
design.
ance of the common
Such seems
be
settled
People,
of this
decisions
court. Davis
v.
Colo. 1,
People,
I how it can be said that certain see, therefore, do not testimony B. was Morrison the- witness J. proper. example, in De- For witness that testified after all over the Southwest cember, 1929, he had been expense, for some at the he of the defend- said, so time, ants he Kolkman, came back to Colorado and was ar- presence rested. ofOut of the defendant Kolk- John * * * “ Boy man he said that Kolkman him had told they the time the Court sets the fall would have * * thrown out Court and there no *. would be trial Boy everything told me him and had I John fixed if sign papers nothing would some and there would be it. figured Never did see the I I told them the Dis- papers.^ Attorney only trict was the man who could me. release Boy Judge gone they said the was couldn’t fix the papers they bring on that account, but could to got them me in Oklahoma. I then went back to Oklahoma and February back here about the last of [1930]. Thlked Boy night Boy got everything I in. said he had fixed testify ground and I could refuse to on evi- that the gave might dence me; incriminate that the Court could testify; thing not force tome would do the same identify hog*s and Burson would not these case * # would be thrown out of court testimony given response ques- This to three objected exception tions, each which was to and saved. requires I believe it error to have overruled them. It great imagination stretch of one’s to conclude that these conspiracy. They statements were in furtherance of the *38 merely they only narrative; amount to a recitation meeting of remarks made at a between the witness and subject Roy Kolkman when the under discussion was not ways escape, to conceal the how to devise and means anything perfect or do aimed to the common de- crime, sign. Nothing planned; nothing agreed upon; no was act contemplated; merely no done. act It was said that un- testify; der the law Morrison could refuse to the Kolk- identify mans could do likewise; Burson would hogs; Attorney and that the District would have no case prosecute. any How furthered the these statements design thought any iton common or can to have effect be perceive. I do not
Perhaps any testimony event, immaterial was upon the but that jury could have had an unfavorable effect very well conceivable. I think it was Besides, as supra, was en- said in “The defendant Walker, State v. guilt, jury from free titled to the of the as to his verdict any prejudice might reasonably from the sub- arise improper mission to illegal of this evidence. ‘Without them testimony may verdict not have found the comple- testimony may made the for have State; proof minds. In that case which satisfied their ment upon illegal evi- would have been convicted the defendant quantity cannot determine what dence. This court ’ lawfully the verdict. evidence sufficient authorize 328.” 49 Iowa Westfall, State v. charged
Simply
men
two or more
have been
because
jointly
of a crime does not make
with the commission
day
alleged
every
between the
word
utter
of their trial admissible.
the commencement
offense and
which
law,
is the effect
hold that that is
To
is to
statute
here,
of the court
emasculate
decision
repeals
separate
right
giving
trials; more, it
it.
reasons,
three
understand the
at
There are
least
inoperative.
why
held to be
rule 14b should
our
law,
post
alleged
ex
facto,
bar,
the case at
as to
It is,
February
while
4, 1929,
the rule
was committed
crime
September
Garvey
1,1929.
in force until
become
did not
Kring
People,
Missouri,
v.
107 U. S.
If he in Beazell v. U. Ohio, there S. Kring case, overrules the do not find either from the excerpt quoted reading the court here or from a Kring whole case. But if the case overruled it I only regret guaran can the relaxation of constitutional expediency ties the interest of or other motives which judges workings should never control minds or the *40 of courts.
Next, the rule is unconstitutional for another reason. adopted power pursuance it is a rule in Remember, thought granted chapter by be to this L. 121, S. power 1913. True, the court has that the determined perhaps malee the rule statute, existent without the present purposes right but for I in shall assume that our premises assuming arose out of So, that statute. it ordinary must be admitted that while not a in statute meaning word, of that it is a statute in the sense that it through is law created other than rule of decision. legislature by is forbidden article section “by Constitution to revive or amend a law reference to only, its title but so much revived, amended, as is thereof published conferred, extended or shall be and reenacted length.” People at v. Friederich, 67 Colo. 185 Pac. power, my opinion, 657. Our in sole to make rules, such gravely if we it I have at and of that am all, doubtful, is legislative grant in found end. Are we greater by grant creator; than our can virtue of we this powers exercise make and laws forbidden be exercised legislature? or made I think not. How, then, lawfully—constitutionally—adopt we tainty, nebulous uncer ‘ ‘ governing The rules comments district * * * judg’es fully say respect in the United States courts.” I in
that all the authorities cited the court and intended to show what the “rule” is federal courts show instead that there no rule. It grace to me seems we could have much more de clared this rule to be void than to defend as we have. proper light If the is a one we could then, rule of what taught init certain experience have redrafted us, has plain I submit, now and must, what is made terms, misunderstanding, source of remain and a indefinite insensible, this I am not recrimination. doubt and pass- “It seems has said that that the court connection, ing empowered strange under this rule has that no one meaning any thereof, the ex- doubt as indicated duty power and that thereunder,” tent of his # * “* profes- [by rule] to advise we intended expect respect, they might thereafter that, sion the same in the state courts to be conducted trials If courts. district States were conducted United imper- purpose, it is because in this we have failed preclude language English definite, a more fections comprehensive statement of the rule, certain, adept more more submits a rule until some one in its use clearly expressing defining the intention of those accept promulgated profession who we must ask the it, presume present and use it in its form.” judge quotation has court means no district first *41 duty any power rule, of under the indicated doubt very obvious reason. that that is so is for a question meaning us been hitherto before of its has not way apprised of busi- in no other and since we are passing it would be ness and conduct of trial courts strange any if indeed we had information on the attitude judges of the district whatever. presume quotation
I the court that the second greater cer- means that the rule cannot be with stated tainty, lay language in the blame at the door of thoughts expressed. a which our must be I cannot for say To that moment subscribe such an announcement. highest sovereign tribunal of circum- a state is so say stating’ any incapable is to of scribed that we proposition in terms. It is that of law certain no answer conferring section L. the common law 6516, C. scarcely us uses more words than are in rule 14b. prior year The common law as it existed fourth of growth King of I of centuries decisions James was the upon every nearly touching all the re- and statutes of flexibility lations men. marvelous that exist between Its meeting* changing of has been needs man and time repeatedly explained praised, I the diffi- and concede culty codifying of Law it. The American Institute has surely of task. But found the restatement the law hard procedure single proposition that not mean of does practice may diligence or, not the exercise intelligence be to terms more more reduced cer- definite, capable understanding, productive tain, more and less of doubt than I our rule 14b. would not to undertake care very simple such a for I draft rule reasons that power adopt do believe we have it or such any my posi- a rule is wise in I event, but cannot see that require very tion should confi- me to do that which am my fully capable doing. dent brethren are If the court properly believes that a rule this character is to be procedural made, and that an it is advance methods, surely among us we the wisdom set have down words meaning that will make our and intention clear. only
It is- too obvious, I fear, the rule is indefinite require If uncertain. it were otherwise it would not explanation, interpretation. voluminous definition and legislature We have not hesitated to condemn acts of the they understanding. because defied reasonable In Re House 485. Resolution, Colo. Pac. We should pass similarly upon not hesitate to own if our rules good attacked reason. IAs said, have the federal authorities cited uncertainty the- court indicate rather than Many existence of a rule. cases, these Ias read them, ample would furnish reason reverse at case bar *42 language employed by judge. because of the the trial Bogileno (2d) States, v. United Fed. 584, is one. The only perceive I distinction can it and this between cause language that the of the trial is court there was not as guilty as the certainly in verdict of to result calculated employed language here. court trial question greatly of termi- I concerned am not my majority nology brethren. disturb which seems to many capable The is of definitions. We word “rules” “principles speak of law,” law,” of “doctrines of “rules expressions those of Often are “theories of law.” law,” necessarily pointed meaning; of not so. We like are Plympton, Pac. out in 85 Colo. Parker v. procedure practice often to- are
that of our rules gathered of not all them found in our decisions and up green the Su- called “Rules of volume the little my proper appear preme does it Court—1929.” But publish make a rule and mind we that when undertake green lan- couch it such it in guage volume we should that inkling attorneys judges will have an profession assumption meaning. that the would our Our my part, subject sanguine, for was too understand it rule rather redraft I would above, to what I have said than interpret it. to endeavor to
Assuming, I view of the however, must, as agree I effective, that the court, rule is cannot applied properly was not that it was here. do believe certainly it is the law rule, intent not may say judge of the United that the trial courts States, guilty. trier The still the the defendant judge may usurp As not that function. facts and the pur- Bogileno supra, “The States, was said v. United pose may assigned impressed [the defendant] he have and even unbelievable, court as unreasonable but the the pass question not that. for could It jury. question intent was 'fact, an issue of jury’s determination.” The testi- law, not impressed mony Kolkmans have trial unworthy judge of credence, case but that did in this especially in view of his him, own state- authorize direct conflict there was between ment that the evidence given by Kolkmans and that two Mor- offered *43 60 say
risons, to that he “that the evidence believed taken as a whole and all the been circumstances as have presented here show that all four of these defendants guilty. (2d) 288, were States, Leslie United Fed. opinion cited the court, the was reversed because judge’s gen trial the “It to me, statement that seems guilty tlemen, crime; this defendant is of this put up to me seems here that will he has defense not hold water under is differ this evidence.” There no hardly language, ence objectionable substance, between that comment and the trial words uttered the judge quoted. in the case at bar and If our above rule the same as that district courts of United might judgment upon we States well reverse authority of the Leslie case alone. may
Starr v. United S. States, U. afford some light subject. page quotes on the at 625, the There, approval Selfridge, with guage: from Commonwealth v. this lan- guide
“As to the I have no evidence, intention to just operation upon or interfere with its and natural your privilege jury minds-. I hold it of the to ascer- tain the facts, and that of to law, the court declare the independent. to be distinct and Should I interfere with my opinion, testimony your the- order to influence way, certainly step to minds incline either I should out province judge of the of the into that of an advocate. All necessary proper that I can see for me to do in this part your points of the cause is to call attention or may prominent on facts testimony which the1cause turn, state- may in tend case which to establish or dis- prove give you points, you these some rules which weigh testimony, contrariety if a should have oc- you according curred, to form a decision leave your judgment, you giving best without to understand, my opinion subject if be it can what own avoided, merely inquiry is. into Where matters of fact, clearly law where the facts and can be discriminated, I always should wish leave the stand without court as being what ascertain able to may left en- minds their be, facts to those testimony weigh tirely settle the unprejudiced merits of case.” *44 quoting
Again, page from a decision of the Su at Pennsylvania: preme “When there is sufficient Court go jury, given point the it is the to evidence impartially. calmly duty judge of the to submit it opinion upon expression evidence such And if of an duty of the under the circumstances becomes a matter of particular great exercised that such care should be ease, expression espe given mislead, be as should so not cially if The evidence, that it should not be one-sided. accurately, stated as well that all, at should stated party makes which makes in favor of a as that which by against warranted him; deductions and theories not studiously They can evidence should be avoided. hardly injustice.” fail to mislead the and work v. 81 Pa. Maxwell, 139, 153. Burke Dictionary (Eawles Eevision), In Bouvier’s Law Third ‘‘ ‘‘ ” subject Charge (p. 460): Though
under the this is it is said customary many judge in not courts, is bound up Thomps. Charging facts; to sum Juries, §79; State up Morris, 10 N. 390. But if he do he C. sum must present facts; all material Parker v. 6 Donaldson, W. (Pa.) & 132; Bank, S. Merchants’ Bank Macon v. Ga. practice 428. This in the courts of is the the United Exp. States; Co. v. Bros., United States Kountze Wall. 342.” practice
I take it the federal is courts judge may, required, up but is not to sum the facts. present If he does he must all so that are material. He liberty problems, not is at discuss isolated draw con- testimony. clusions unwarranted all the He not must province jury by stating invade that the evi- controlling upon conflict, if in should be dence, one side duty jury, or the other. It is his to advise and assist the place. not to take its my disagree- especially emphasize
I must, therefore, ment with the doctrine announced the court that judge great trial make little or a review as he desires. I do not believe it to be the law of the United States courts that are to be the dis- “Comments made summing- cretion of the trial court” that the in the sense up may be restricted to a that the defendant conclusion guilty. only is discretion the trial court whether is summing- up there shall be a or not. The rule at the quotation common law was to that from effect, as Blackstone found of the court indicates. through gone Blackstone said that “When evidence judge, presence parties, on both sides, the up the counsel and others, all sums the whole jury.”
It does
seem to me that it
not
should be said that
complimentary
juries
say
suscep-
*45
tible to. and influenced
remarks and comments of a
judge.
trial
If
this court
hitherto
so,
has
been unkind in
laymen, frequently
that behalf.
are
Jurors
unfamiliar
they
upon
Why
apply.
they
with the law
are
to
called
give great weight
should not
to the
remarks
com-
judge
contrary"
ments. of
I
the
do not know. It would be
general
course of human nature for them to do
susceptible,
otherwise.
if
are not
Besides,
and are
unlikely
very
to be
our rule 14bwill
influenced,
be of
little
accomplish
thought
use and will not
that which it is
jurors
susceptible
will. That
are
in such situation is the
opinion
Supreme
of the
Court of the United States.
supra;
Starr v. United States,
Hicks v. United States,
I desire also to made Mr. Justice opinion Butler. of the court is to the effect that the part are “comments” of the instructions need writing People, be in not 41 for that reason. Wickham v. Pac. cited that Colo. to end, does not seem support position. to that The definition in that case very question served well because the there, was, what is meaning of sections 7104 the within instruction an the are faced with this we L. 1921. But in cause C. practice. problem in the federal instruction of what is an charges practice or the instructs is that court The federal concerning at the and facts the same both law of his remarks constitute the time and the total supra, charge States, Starr v. United instructions. graft if we are to Hence, therein cited. and cases practice we hold that the “com- federal to ours should part he to should reduced instructions, ments” writing, given in- and be at same time as other partially, least, make structions. That would at adaptable system working Mr. which, rule 14b to a adapted ill receive it. The said, Butler to Justice has opinion suggestion that it made in the confusing per- unprecedented, would be “an novel, practice” require judge to trial make nicious to writing at the time comments and deliver them same me be more other It far as the unprecedented, instructions. seems confusing pernicious allow novel, judge prosecu- speech for the trial make third judge here. the trial did tion as experience has
In the of the court it is said permitting judge proven practice the trial testimony more comment in much has resulted of^justice successful than ob- administration heretofore authority prop- in our No is cited tained courts. procured, I none. osition and know of Statistics could presume, upon persons tried, number the number acquitted, number convicted, convicted number appealed, reversed, number who and the of convictions *46 several and federal But correlate state courts. them, impossible. My be, think, observation, would I many years practice, escape of that more is no offenders escape in a well in a well conducted Colorado court than My contrary opinion, conducted federal court. own my experience that has demon- that of is not brethren, superiority practice of the federal strated justice may ultimate more often courts lie that jurors judge. of than in the the hearts mind of the altogether is not clear what the court means It permitting- judg*e comment, assertion that the trial will the evidence mean a more successful adminis- justice. likely, of It tration it however, that arises out present system of belief that under our it has too fre- quently happened required that the observances of tech- nical formalities has-resulted in reversals of cases where guilt apparently of the defendant was overwhelm- ingly justice, object every established and the ultimate of litigated say had been To matter, done. this I that isit duty Supreme any not the Court or of to be guilt concerned with the or innocence of a defendant. duty of courts is take care defendant that the given according a fair trial to law and that he be not deprived liberty process of life or due of without law. (as itAnd should be remembered that the technicalities need) passing we call rules of law that do suit not our the criminal law were made benefit innocent liberty, men entitled to retain their lives and have their it and ally, is for that If them are enforced. occasion- escapes say guilty I man often, is. just punishment, price pay is the we that order must protection. Marjoribanks’ biog- we In have raphy of Hall, Sir Marshall K. C., Edward eminent reported barrister is to have far said it were better escape guilty majesty men that ten thousand than that of the common Nor law violated. is the of civili- cause government, liberty, zation, constitutional served prece- an man when innocent is convicted of a because process ensuring punishment dent created to a guilt overwhelmingly man whose been has established. question seriously very any great whether number guilt of cases have been reversed where the de- overwhelmingly fendant was established. Indeed, exam- covering- reports -of our ination that last decade shows very few have been cases reversed all, at and that
65 very for substan- reversed were reversed all that were re- would the reversed In none of cases tial reasons. judge anywise had the trial influenced sult have been opportunity power to “comment” had the and taken testimony. 87, inclusive, In volumes 67 period reports, covering 213 1931, from 1920 to our reported. were that number criminal cases were Of something less reversed. In other words affirmed and 46 something per more than 78 were reversed, than per cent greater percentage of civil affirmed. A much cent from but I have drawn no conclusion reversed, cases was point seeking is reversals that. The I. am to make nearly supposed are not as has to be the as common been They appear growing for in common, fact. to be less volumes 80 to 52 criminal cases were dis- 87, inclusive, posed per of and but 5 than 10 cent. In less reversed, reported volumes 81 and 85 all criminal were cases one case affirmed, 82, 83, while volumes 86 and only And, in each was reversed and all others affirmed. they rea- as have were all reversed substantial said, great solely sons, in a number of them for error attrib- judge, part utable to the on the several for misconduct attorney. prolific it would the district So seem that judge properly failure of the source of reversals is attorneys, apply principles that district law, by misplaced partisan stirred no doubt sometimes zeal, very justice bitterly of which so cause failures remedy complain. suggested this review is for One judges attorneys trial criminal trials models of and district to endeavor to make
practice and free from such palpable required judg- errors as have to enter present system juris- ments of reversal. Our of criminal prudence perhaps capable improvement, can- it jails it not be denied that under our and reformatories penitentiaries very are crowded to the walls. It might be better to endeavor to enforce the laws we have procedure attempt change now in force than to procedure judges in such a manner as to relieve attorneys consequences of their errors.
district years; properly growth is too much Law *48 expect may overnight, by hope rule, or the of fiat we jurisprudence correct fancied or defects, real, years by part appellate the of established of research on tempered generations by courts, and in statutes of use. question As to the of under whether the Constitution making province, our of rules of this kind is exclusive the opinion question I think we should until the is reserve before us. thought It is not now. But I do not wish to let it be by failing it I mention have overlooked tacitly approved opinion of the court this re- spect. If one were to reduce to somewhat definite lan- guage subject, of the court on the doctrine that doc- phrased power trine could be thus: “The to make rules always adop- ours; is it now, is and been, has since the responsibilities of tion the Constitution, one of our duties, and shall we it exercise without interference from any department government.” language, other That import, aptly or words of similar could have been made part opinion of the of the court. of that kind have Doctrines been entertained before. King may Louis XIV not but could have “L’etat said, ” King may c’est moi. ‘‘ XV Louis said, could have ’’ deluge. King After us the The fate of Louis XVI was only clearly judicial power too foreshadowed. The of Colorado our hands. The law state is what say right; dispute it we is. We need not be none can us. legislature impotent The of our statutes before our governor decree; no has recourse when his acts are by overturned our decision. We are the state. But how long power, impatient will we be the if drunk with state interference, intolerant of the other branches government, aggrandizement we continue warranted by predicted court’s here? The Consti- majority my tution which a brethren have said clothes rights sprang us with these awesome from the will, not people. may but of courts, We be the state, our coming may their suc- flood, see successors immediate away. swept may be cessors effect L. has 1921, C. force Section
That wholly erroneous. is, think, the court ascribed to it grant legislative Standing by be a itself sought cannot right but it rule, to confer we have can adopted as I 1861 but so far alone. It was read attempt provisions to include extend its find no power judges ever evidence was to comment in 1868 the is that heretofore reason this made. The legislature adopted L. what now section C. * * * ‘‘ provides shall that The district which only petit the case the law of as to instruct * * it has is, from this inference obvious considered present always court until been so *49 mat time, that court shall instruct King People, v. Peo 440; 8 Colo. ters fact. Minich v. Ryan People, ple, 50 Colo. v. 235; 129 Pac. 122, Colo. People, 167, 107Pac. 47 Colo. 99, 114 306; Pac. Ausmus v. only escape language latter from the 204. The not and does to hold that the-word “instruct” statute is have de in rule 14b we not meant to include what herein stated for But, “comments.” reasons nominated I am con Butler, of Mr. and the conclusions Justice say fanciful, too that a construction is strained to such previous- plain de of our own effect too-violative of seriously. our if all Besides, to be considered cisions, separate- printed book, in a are not and bound rules among in Parker decisions, as was said our are scattered ought supra, Plympton, that we are bound to hold we v. parties by were, in Parker case much as the them as consequence necessary section L. 7099, C. and that as a right gives for it as is claimed at all. us no such suppose-, theory discussion I is, of the rule under The- by training' judges better fitted and educa- are that trial points sep- of evidence-and to the salient to detect tion grain chaff. stated, from the Otherwise arate judges fitted to determine- facts, better as are arguments, are better fitted to determine These at law. least, the chief advocate ones advanced those who very Many rule. But wonder if this learned is so. men judges weigh have written inability quoted Campbell saying: facts. Lord “I remem is sergeant-at-law having ber a a brilliant at the success always believing bar from client was entitled to although proved succeed, when Chief he Justice with exception, beyond comparison, out all most in judge appeared different who has Westminster Hall my judges time.” And cele of other he said: “The placed brated advocate when on bench embraces plaintiff side or of the for defendant with all his impartiality injustice— mer zeal, and—unconscious of eagerness victory fairly appre in his becomes unfit conflicting arguments ciate evidence, and authorities.” King Lord Chief Justice Tenterden, Burdett, Barn. v. peculiar & Ald. 162, said that it is “one of the advan tages jurisprudence” of our in criminal cases “the conclusion to be drawn men with the conversant affairs and business of life, and not one or more law yers might suspected leading whose habits them to ” indulgence subtlety of too much and refinement. His opinion quoted approval Sparf States, United Judge Jurispru 156 U. 180. S. in Laws and Dillon, England p. dence of “I said: recall America, with interest the late Mr. the views of Justice Miller and change part subject on his on the of trial *50 by jury. opinions by general His are of for con value, among judges sent he ranks the ablest have ever who any country. in held on the bench seat this or He said to me at one that time his notion of an ideal trial composed judges try court was a court of three all years law civil cases of or fact. Some afterwards, as the experience, result of more observation and he told me changed thought juries views, he had and that he judges judges.” page better of fact than At 168 of the Judge good same Dillon volume said: “Twelve disputed judges of facts than men are better lawful judges.” In 21 American Law Review learned twelve willing Mr. Miller himself said: “I am Justice my subject give benefit of observation on this public judges pre-eminently that are not fitted over other good judgment men of in business affairs to decide mere questions disputed reports are re- fact.” Our own plete with en- reversals because the evidence below was tirely judgment. reports insufficient to sustain jurisdictions many of other exam- will furnish similar ples. marvelously The search difficult for truth is a thing and no Pilate nearer successful than when solution question. I, asked one, his famous for believe its pursuit may safely good more entrusted to “twelve * * * judges” and lawful men than learned twelve judge. one learned objection
After all, however, the chief to this rule ours is that we have taken ourselves solution political problem judicial of a and wandered from our legislature, my opinion, duties. problems It is to the such are committed Constitution theory governmental system. Changes whole of our so representatives radical as this should come from the people, assembly, hearings where and debate light day. compose be had in the "Weseven men who Supreme right, Court have no to meet in our think, knowledge star chamber and, or consent of without people, repeal legis- alter, abolish or acts of the right lature. I cannot believe that we had the to make repeals the rule here under discussion which a statute adopted sixty years. force more than political question. Sixty years ago legisla-
It ais judges power, ture said that our trial should not have this during sixty years judge no trial has success- fully appeal defied the statute where was taken when he "Why legislature deprive did. did the of 1868 the courts power, of this which otherwise would have had? Judge says page Was it because, as Dillon at 129 of his *51 Jurisprudence England America, Laws that disguise may, legis- “Soften or the fact as best one such * * * implies capacity lation a distrust of the judge summing up to deal with the evidence in so as likely good.” say, to be to do more harm I we than So, should not assume too much. should not concern We political problems. ourselves with should bear We disputes, appellate mind that the courts, chief even in are not so often what law what about but about is, My experience are the facts. own brief here indicates to my testimony mind that that is so. The of Mr. Justice reported Miller is in 21 American Law Review where say my experience he said: “I must that in in the con- Supreme ference room of the States, Court of United judges, surprised which consists of nine I been have readily judges agreement upon find how those come to an questions they disagree regard of law, and how often questions apparently of fact which are as clear ’’' law. galaxy opinions
In his contribution to herein, my per- Mr. Justice Burke has referred belief that mitting judge prac- comments the trial is an inferior allowing tice. It is his belief that such comments ais superior practice, says authority ample that there is support position. My brother has overlooked the say respectable, fact that I did not there were not even dispute. men on learned, I side did What say authority experience was that I knew of no has superiority system. presume demonstrated the of very gentlemen very honorably some honorable have in- judges powers sisted that should have of that kind, there is no doubt that the American Law Institute has proposed permits drafted a code of which section 337 judge testimony. perceive comment on the IBut very significant things respect two to that section quoted which is full Mr. Justice Burke. First, possible demonstrates that it is to use words other than express thought those used in rule 14b to involved. *52 gentlemen drafted who that demonstrates the Second, it theory be code would that the so on the code did the by legislatures. adopted weighed Iris Mr. Burke Justice
I believe that cannot proposed carefully language that the asserted when'he on evidence confine comments the code section “does the of instructions on identical and method to time judge requires the to submit the section law.” I that charge: part at the a of his and his comments as make charge or inbe and that if the instructions time, same writing Like rule how- 14b, be the comments must also. apprehend language have I more definite could ever, that duly respectful employed, although I am that, been especially now their men drew that it, to the fourteen who proposed judicial approval, received of labor has the seal adequate plain of is a statement not as section might Apparently made. the fourteen the matter as be problem makes had which not considered authors inappropriate practice, viz., to our when shall 14b rule so speech judge evidence, malte about the his form? what happy
I Mr. has mentioned the am Justice Burke that Washington journey lately privileged to to I was to make Law but sessions the American Institute, attend the of my presence my ap- there his conclusions that marks body proval is do, do, of all that has did will done, upon hardly myself I find in this a correct one. As cause minority, at so one time at sessions of side of upon another occasion when I was at institute, Washington, minority. I a I not venture was shall philosophic potential- minorities; dissertation their successes have been often failures and discussed. ities, right. Every Many minorities often of this are member religion subscribes the tenets of a that claims minority people world, and at least a have more adherents our different faiths than two has Christianity. not the Founder our faith done Was minority? He death because a my exception Mr. Justice Burke taken has statement duty any Supreme that it not the Court or of guilt court to be or concerned innocence argument I defendant, but find from we that agreement. theory duty I advanced is the given courts take fair care that defendant according deprived trial to law life he be not liberty process without due of law. Mr. Justice Burke duty juris- holds that i£It is the all vested with courts diction of criminal causes so administer the law and guilty may so conduct within it themselves acquitted.” perceive and the convicted innocent no difference judges our All I is that conclusions. want trial *53 appellate usurp province judges shall not prosecutor of either or the and I not defender, do my any disagree. believd or of brethren, them, will opinions my myself The in this of cause brethren and many pages they reports, will fill of I our but do not feel liberty have been too The Kolkman voluminous. John duty required give atwas stake—our our us reasons imprisonment. opin- for his continued of the The words many justice ion of the court will turn the times scales required duty important —our such matters be set length. language dissenting opinions out at of the determining will aid in be of effect ascribed be opinion of the court. expressed, For the reasons above and for the reasons expressed opinion of Mr. Butler, Justice I am judgment should be reversed and new granted. trial concurring. specially
Me. Bueke, Justice Believing persuasive portions that much of the force of opinions dissenting of Justices Butler and of the Hilliard they upon what rather than overlook, rests what already obliged I to add to the too note, feel voluminous questions here discussion involved. throughout, in mind
It should borne that the recent applica- no legislative has to in dissent referred act under considera- is here the instant case and tion to prac- investigations passed our It after were tion. tically It is in- reached. finished and our conclusions obliged, answering only have been far as we volved so examining objection here raised constitutional support reasoning thereof, of Mr. Justice Hilliard power ques- inquire make the into the source rule. tioned duty Supreme not the are told “It
We guilt any be concerned with the or of court to Court This is the doctrine which of a defendant.” innocence game into out- criminal trial a where rules transforms a judge position relegates of an to the rank results, permit umpire. neither it nor it to can subscribe to unquestioned. province pass in crim- Juries, whose sole guilt, decide the as much trials to' facts inal judge. part of their be ad- the court as the If verdict supported and be defendant, evidence, verse granted if and a new trial nevertheless be vacated must approval meet the of the conscience it does not People, judge. Is the 52 Colo. Pac. 687. Piel v. guilt or innocence?” trial court not “concerned Certainly spoke for this court White, Mr. Justice who thought so. The most' in that associates case, assignment appellate courts, common of error *54 assignment of error is that no suffi- here, second is there guilt. given evidence of cient most common reason for their to reverse for minor refusal errors is because guilt overwhelmingly is established and the errors are prejudicial. guilt Is not this court not “concerned with often'gone astray. or If innocence?” we have far duty jurisdiction It is of all courts vested criminal causes to so administer the law and so conduct guilty may themselves within it be convicted and acquitted. pur- purpose, innocent For and that pose only, criminal are statutes criminal enacted, courts procedure adopted, compli- criminal created, and all the eated machinery operated. of the criminal law set up
All of the federal authorities cited Mr. But- Justice ler anent the power of the United States Supreme Court to make rules practice and all his con- procedure, clusions drawn from bar association activities relating of their thereto, stripped potency by a comparison the state and federal constitutions.
“No or person persons collection of charged with the exercise of powers properly belonging to one of these executive departments [legislative, judicial] shall exercise either of the any power properly belonging others.” Art. is no Ill, Colorado Constitution. There such provision in the federal Constitution. * * * “The Supreme general Court shall have a Art. control over all inferior courts.” superintending VI, pro- sec. Colorado Constitution. There no such vision in True, the federal said “control” Constitution. is to be exercised “under such and limitations regulations as the two prescribed by law,” Id. But since articles must be referred together construed “law” to must not judicial To determine what usurp powers. powers properly belong judicial department one must to the common law. go (Going there we find the power conferred by was, our rule from time immemorial, place beyond To “judicial.” question section 7099, L. 19.21, C. all ‘ ‘ providing trials criminal offenses shall be conducted to the course of according the com- law” mon 1861. There passed is no such federal statute and “the federal courts have no common-law in criminal jurisdiction cases.” C. J., p. 197, §27. Mr. questions Justice Hilliard the conclusion that from standpoint better practice, the effective ad- ministration is that ‘justice, permitted by the rule, be- no authority cause is cited known to him. Since the proposition incapable mathematical demonstration, and since the to decide it legal power has never been he uses vested, “authority,” term, refer must the conclusions of those whose ability experience *55 accepting, them, justify in express, others qualify and legion. are opinions. authorities such In sense their spoken or jurists ever great have who A list all century require past would subject in the written on the being authori- of such a list filed as before deletion little from the present, case liv- this concrete however, ties. ing at the present. Institute, Law the American In 1925 request American Association, the Bar the American Criminology the As- and and Law of Criminal Institute in to aid undertook Schools, Law of American sociation country rescuing procedure from re- criminal by forcefully up proach Jus- the late Chief summed so by drafting The actual model criminal code. Taft, tice qualifica- men whose done fourteen work was some by any unsurpassed probably similar therefor were tions They group and as- were advised the United States. country throughout and others sisted countless repeated subjected test of of their labors the result years of strenu- After five such and debate. examination presented they completed the council ous work adopted proposed May, which institute, in- “The court shall reads: 337 thereof Code. Section applicable jury regarding to the facts the law struct the may evi- on the make comment such cause, credibility any testimony witness dence and the proper necessary opinion determina- for the is in its as requested inform the if It shall of the cause. tion questions judges of fact of all the exclusive in- it so on the evidence shall comments if the court charge' requested or not. them whether form ’’ or oral. written be either say is as broad least, which, a rule Here represents, of its au- in the it our own. That retrogression, progress, sponsors, in the thors If, of the law is self-evident. administration effective questioned authority high statement for the as court’s aaiy particular, opinion, lacking suffi- it is being ciently writ- the fact that as this is reinforced *56 my representative ten this Hilliard, brother as of by appointment justice, of in attend- its chief is meeting ance at annual of the American Law-Insti- capital. worthy tute in the nation’s It of note this is proposed section in a as vests the trial court discretion broad as our it on rule, that does not confine comment tlie evidence to the identical time of and method instruc- advantage on law, tions and that it hav- lacks the of ing century judicial behind it at least a a of half practice. prac- examination, decision and Moreover, by substantially tice authorized our rule is that of the majority general jurisdiction vast of the courts of of English-speaking world. It is forbidden in but eleven only Michigan states and in “com- Union, is the expressly charge. ment” limited to the meaning past in has, this Because rule questioned, been is said to in it be veiled “nebulous now, uncertainty” and if retained be clarified, should unless incapable stating any proposition '“we are of law Amplification promises only certain terms.” confusion. every every every legislature other court, Like incapable stating any propo- textbook writer, we are preclude sition of law terms so certain as the mean- ing being questioned. language thereof ever Human is incapable accuracy of mathematical and law is an not questioned exact science. The most is the Book of our Faith. work in all the world
Why expect should we suc- inspiration where cess failed? salutary definitely expressed
I think the rule a one, as language system fitted allows, to our diffi- without culty; purely judicial concerns' exercise of power, powers and that the exclusive of such exercise only is not sanctioned, courts but commanded people through themselves the Constitution which their supreme law.
Mb. Chief Justice Adams, specially concurring. opinion, concur the main as written Mr. Justice evidence I think unanswerable. which. Alter, overwhelming. These facts .crime is the defendant’s kept if member, Kolkman, should be in mind: John hog gang organized was con- thieves, of an leader, paper penitentiary. The sentenced to the victed and justices dissenting directed are so of the honorable shafts they may fact that to divert attention from the tend Charley Bur- and his band of marauders stole Kolkman on the hoof. son’s bacon exhaustively questions
Legal involved have been so respect, I am there is little to add treated that *57 significance of the fact that the efforts with the struck Bar Association directed toward American by judges to comments on of the rule as the extension If restriction. such rule is instead its evidence, paint strange, after a it, enemies seems as bad its century experience half the American it, and a try abrogated altogether, does not to have it instead bar securing extension the states. its quiz- that the weird admonitions and have no doubt warnings gratuitously Hil- bestowed Mr. zical Justice majority to their on the members of court as liard judicial conduct are well his hint meant, duties and but popular opinions acclaim, if meet with we our do not away coming politi- swept flood, contains a pernicious shocking philosophy cal so that it cannot If be overlooked. courts are to be or if intimidated, weigh judgments reprisals their must polls, they in fear of at the judicial basely
stain the ermine and are un- worthy public My confidence. undisturbed faith worthy integrity my brother is such that I cannot imply. he means that which believe his words No one can fail to be entertained Mr. Justice Hil- subject kings, liard’s dissertation on the French Charley’s hogs? what about
Judgment affirmed.