28 Colo. 184 | Colo. | 1900
The plaintiffs in error, were convicted of the offense of offering a bride of $500 to one A. T. Wharton, a member of the city council of Grand Junction, to corruptly induce him, the said Wharton, with partiality and favor contrary to law, to vote for thepurchase by the city of Grand Junction of the water works system of the Grand Junction Water Company, and sentenced to imprisonment in the county jail for the term of six mouths, and to pay a fine of $100 and costs. Upon the trial of the cause William Campbell was sworn as a witness on the part of the people, and testified that after the adjournment of the city council on the
The witness was asked the following questions:
“Q. State whether or not, while you were in this hole, they were talking?
“A. They were making some kind of a noise supposed to be a conversation.”
(On motion of counsel for people, this answer was stricken
Mr. Wheeler, counsel for defendants: “We offer to show by this witness and other witnesses, that persons in this hole could not hear these defendants talking in an ordinary tone, standing on the sidewalk forty feet north of the hole.”
By the court: “The conditions might not be the same.”
By Mr. Wheeler: “We offer to prove them to be the same.”
The court: “The evidence can’t be admitted.”
It is, we think, well settled by ’the authorities, that the testimony of witnesses as to experiments made out of court, is admissible in both civil and criminal cases, for the purpose of illustrating or rebutting testimony given in the case, when it is shown that the conditions are the same. Wilson v. State, 36 S. W. Rep. 587; Burg v. C. R. Id. & Pac. Ry. Co., 90 Ia. 106; Chicago etc. Ry. Co. v. Champion, 9 Ind. App. 510; Mo. Pac. Ry. Co. v. Moffat, 56 Kansas 667; Byers v. Railroad, 94 Tenn. 345; Young v. Clark, 16 Utah 42; Smith v. State, 2 Ohio St. 511; Boyd v. State, 14 Lea 161; Lipes v. State, 15 Lea 125; 2 Jones on Ev., § 413; Sonoma Co. v. Stofen, 125 Cal. 32; Schweinfurth v. C. C. & St. L. Ry. Co., 60 Ohio St. 215.
We cannot accept the contention of the attorney general that it is entirely within the discretion of the trial court to admit or exclude such evidence. While it is largely within its discretion to determine whether the testimony shows that the experiment was made under such conditions as to fairly illustrate the point in issue — City of Ord v. Nash, 50 Neb. 335 — yet when it is shown that the conditions were essentially the same in both instances, the testimony should be admitted, and its weight determined by the jury. As was said in Byers v. Railroad Co., supra:
“It is uniformly held that in all such tests, to make them competent, the conditions under which the tests were made must be the same as near as practicable. This requirement
Counsel for defendants offering to prove that the conditions under which Mr. Knowles made his test were the same as those present when the conversation testified to by Campbell and Barton occurred, the court erred in excluding the testimony. Such error necessitating a reversal of the sentence, it is- unnecessary to notice the other questions presented, which may not arise upon another trial.
Reversed and Remanded.