51 Colo. 461 | Colo. | 1911
delivered the opinion of the court.
Defendant’s evidence showed that he was a musician playing for the dance, and going out during the disturbance, found his brother intoxicated, and in a quarrel or fight with Pedro; at deceased’s request, he intended to take his brother home; but went back in the hall first, to get a pistol he had secreted there early in the evening; this he put on the inside of his trousers, and while standing by deceased and his brother, deceased put his hand on Jayo’s shoulder and asked him to go home; about this time the pistol slipped down the inside of the leg of his trousers, and was coming out at the bottom; he reached down and pulled it out, when deceased grabbed it, and in the
The People introduced without objection, the dying statement of deceased, in which he said that Jayo and Pedro were fighting outside; that he went out and tried to quiet Jayo, when the defendant said he had something for any son of a bitch what wanted to take his brother, and immediately drew his revolver and shot him; that a scuffle followed over the possession of the weapon.
Defendant offered to prove by witness Taylor, that on the morning of the 25th, witness had a conversation with deceased in the dance hall before he was taken home, in which he said, in the presence of two other witnesses, that Florencio Salas shot him; that there were three or four persons scuffling for the pistol and during the scuffle, it went off, and he was shot. The people objected to this offer on the ground that it was hearsay. The objection was sustained, and to the ruling error is assigned.
Defendant claims the offered testimony was admissible upon two grounds: First, as a part of the res gestae of the litigated fact; second, that it was a statement made out of court by the deceased, inconsistent with his dying declaration, and tended to impeach him.
Such is the opinion of this court upon the admissibility of oral statements made out of court by a deceased person, contradicting or impeaching a dying declaration.
The majority opinion does not dispute this principle, but holds, in a dying declaration, there is an exception to it, because death has made it impossible to lay the foundation. I think the law, as well as substantial justice, does not, and should not recognize such an exception; in other words, there is no such exception recognized by the best line of adjudicated cases. The death of the witness does not dispense with the general rule in such cases requiring the foundation to be properly laid. — Mattox v. U. S., 156 U. S. 237: Ryan v. People, 21 Colo. 119; Stacy v. Graham, 14 N. Y. 492; Runyan v. Price. 15 O. St. 1: Wroe v. State, 20 O. St. 460; State v. Taylor, 56 S. C. 360; Craft v. Commonwealth, 81 Ky. 250.
In the Mattox case, 156 U. S. 237, defendant was convicted of murder. On the first trial, a witness by the name of Whitman, testified for the government, claiming to be an eye witness to the shooting. At the second trial, he having died in the meantime, a transcribed copy of the stenographic notes of his testimony, was read by the government to the jury. For the purpose of impeaching this evidence, defendant offered to show, that after the first trial Whitman said his testimony was false; that he did not witness the shooting; and told why he testified falsely. The district attorney objected to this offered testimony because the proper foundation had not been laid, and an opportunity to explain or contradict it had been cut off by the death of Whitman. The objection was sustained and error assigned thereon. After the case had been submitted, counsel were allowed to file further briefs upon the question of the admissibility of this offered evidence, and the case was re-submitted to the full bench. It was insisted that the rule did not apply, because Whitman was dead and the alleged contradictory statements were made subsequent to the giving of his testimony at the first trial, and consequently no foundation could be laid. The court held that the authorities recognized no such distinction or exception. The case decides that the fact that a witness cannot be" produced, because he is dead, does not dispense with the necessity of laying the proper foundation before his evidence can be impeached. The opinion of the court is summed up in this forceful language:
*468 “While the enforcement of the rule, in case of the death of the witness subsequent to his examination, may work an occasional hardship by depriving thé party of the opportunity of proving the contradictory statements, a relaxation of the rule in such cases would offer a temptation to perjury, and the fabrica-'' tion of testimony, which, in criminal cases especially, would be almost irresistible. If it were generally1 understood that the death of • a witness opened the door to the opposite party to prove that he had made 'statements conflicting with his testimony, the history of criminal trials leads one to believe that witnesses would be forthcoming with painful frequency to make the desired proof. The fact that one party has lost the power of contradicting his adversary’s witness is really no greater hardship to him than the fact that his adversary has lost the opportunity of recalling his witness and explaining his testimony would be to him. There is quite as much danger of doing injustice to one party by admitting such testimony as to the other by excluding it. The respective advantages and disadvantages of a relaxation of the rule are so problematical that courts have, with great uniformity, refused to recognize the exception.”
In the Ryan case, 21 Colo. 119, the people took and read to the jury the deposition of a witness named Dulin. Defendant offered to show that Dulin, since it was taken, made statements out of court contradicting his deposition. The offer was x*ejected upon the ground that the proper foundation had not beexx laid. Defendant claimed it was impossible to lay the foundation because the statement was made after the deposition was taken. We then said that the law recognized xio such exception, and that the courts with great unanimity declared that a witness could not be so impeached, without first laying the foundation. I
“The opinion in Mattox v. United States, supra, contains an able and exhaustive review of the authorities upon the question. The exception there and here claimed was held to have been rightfully denied in that case, although the defendant was upon trial for a capital offense, which trial resulted in his conviction and sentence. We fully concur with the reasoning of the majority of the court in that case, and hold in this case that the evidence of the witnesses Coryell and Masterson, sought to be introduced for the purpose of showing that the witness Dulin had made statements out of court contradicting or differing from his deposition, was properly rejected, as no foundation had been laid for the introduction of such evidence.”— Ryan v. People, 21 Colo. 126.
It is difficult to reconcile the Mattox case with Carver v. U. S., 164 U. S. 694. The only attempt of the court to do so is by the statement:
“That case (Mattox case), however, was put.upon the ground that the witness had once been examined and cross-examined upon a former trial.”
In the Mattox case, it should be remembered, Whitman was dead when his evidence was read at the second trial. The alleged statements were made after the first trial. He could not have been cross-examined upon them at the first trial, because they had not been made then. If the court in the Carver case had explained how the defendant in the Mattox case, could' by cross-examination of the witness Whitman on the' first trial, lay the foundation for impeaching him on account of contradictory statements by him after the first trial, I might understand how to distinguish the two cases. On the point involved, I think the two cases are practically the same, and cannot be distinguished in principle. We have gone on record in the
“Counsel for appellant has cited the case of Carver v. United States, 164 U. S. 694, in support of his contention that the testimony in question was competent for the purpose of contradicting and impeaching the statements made by the deceased in her dying declarations, and that case does so hold. But it seems to us, in principle, the case is irreconcilable with the previous case of Mattox v. United States, 156 U. S. 237, which, while not a case of an attempt to impeach dying declarations, the whole subject was fully and elaborately considered — much more so than 'in the case of Carver. In both of these cases the court was divided, and we are not prepared to accept either as binding authority upon us, in a case of this character, where no federal question is involved. On the contrary, it seems to us that the conclusion reached by the Ohio court, in Wroe v. State, supra, is more in accordance with reason than the contrary conclusion. To hold that it is competent to impeach the dying i declarations of a deceased person by testimony tending to show that she had made statements in conflict with those contained in her dying declarations, not under the sanction of an oath nor under the shadow of impending death, would tend not only to afford a strong temptation to the fabrication of false testimony to save the life of the’ accused, when death had rendered it impossible to rebut or explain such statements, but would also tend to absolutely destroy the efficiency of dying declarations as evidence. We do not think', therefore, that such testimony is competent.” — State v. Taylor, 56 S. C. 368.
In Murdock v. State, 90 Tenn. 529, the supreme court of that state', speaking of the M’Pherson case in 9 Yerg. says:
“But in that case, all the statements were made in extremis, and were clearly admissible as dying*472 declarations.” The case turned wholly on conflicting statements in the dying declaration itself. The point under consideration in the case at bar, did not enter into that case in any way, and it is no authority for the contention.
In the Lawrence case, 21 Cal. 368, is the following statement of fact:
“After the evidence for the prosecution had closed, the defendant offered to prove that the deceased, after the shooting and at the primary examination of the defendant before the committing magistrate, swore to facts directly contradicting his dying declarations. The court refused to admit the evidence, and the defendant excepted.”
It appears in this case, that after the. shooting, probably before it was anticipated that the deceased would die from his wounds, there was a preliminary examination of the defendant at which the prosecuting witness was sworn and testified. He died sometime after this, and made a dying declaration regarding the shooting, which was admitted in evidence against ' the defendant on his final trial for murder. There was a material conflict between his dying declaration, and his sworn evidence at the preliminary, and this evidence was offered for the purpose of impeaching his dying declaration. Under the circumstances of that case, his evidence at the preliminary was competent evidence at the final trial. It is universally held where a witness has been duly sworn and examined in court and an opportunity offered for cross-examination, that upon a subsequent trial of the same transaction between the same parties, if the witness is beyond the jurisdiction of the court and cannot be produced, that his evidence at the former trial may be read to the jury. Either party may use it. Not only this, the alleged contradictory state
Reversed and remanded for a new trial.
Reversed.
Decision en banc.