11 Colo. 213 | Colo. | 1888
1. While the grounds upon which the district attorney asked to be excused from prosecuting this case are not very fully stated, there is sufficient, we think, to indicate that a statutory ground existed. It is evident that he regarded, and that the court below regarded, his retainer in the other case as a disqualifying fact. So far as the grounds for the action of the court in this respect are disclosed, they do not contradict, but strengthen, the presumption that is always indulged in favor of the action of the trial court. Even if this were not the case, we are not prepared to say that a nisi prius court may not make such an appointment for good and sufficient reasons other than those specified in the statute.
2. A motion to compel a prosecutor to elect upon which count in an indictment he will proceed, when such in
3. We see no good reason why witnesses who have handled and become familiar with the ore taken from a certain mine may not testify in reference to the same for the purpose of identifying it, in the same manner and to the same extent as they are allowed to testify as to the identity of other personal property. The extent to which such evidence would be satisfactory and reliable would depend upon the existence of marked characteristics, rendering it easy of identification. Absence of such characteristics would go to the value of the testimony, not to its admissibility.
4. The evidence in the record before us relates chiefly to the charge of larceny contained in the first count of the indictment. It is upon this count the conviction of the prisoner must be sustained, if at all. The chief contention by counsel for the defendant in error is that the evidence does not show the corpus delicti. While direct evidence of the corpus delicti is always desirable, it should not be held indispensable. To so hold would, in many cases, give immunity to crime, especially in the class of cases to which this belongs. There is some conflict of authority; but we regard this as the better doctrine. If, however, circumstantial evidence is relied upon for this purpose, it should be such as to exclude all reasonable doubt. 1 Bish. Grim. Proc. § 1071, and cases cited. In the case at bar we have to deal with the admission of the prisoner. The general rule is that extrajudicial confessions of a prisoner are not sufficient to warrant a conviction without proof aliunde of the corpus delicti; or, as it is sometimes stated, the prisoner^ confession of the crime must be corroborated by other and independent evidence. Id.; Whart. Grim. Ev. § 632. 'We are of the
5. We do not notice the instructions in detail. We have carefully examined them, and find nothing of which the prisoner is entitled to complain. In our opinion they inform the jury fairly and fully as to the law applicable to the facts. These are all the errors regarded as demanding notice.
The judgment of the court below must be affirmed.
Afflrm'ed.