170 P.2d 781 | Colo. | 1946
Lead Opinion
delivered the opinion of the court.
Plaintiff in error, hereinafter referred to as defendant, was returned guilty of stealing cattle. To reverse a penitentiary sentence entered upon that verdict he prosecutes this writ and assigns errors which may be thus properly grouped:' 1. Insufficiency of evidence; 2. Prejudice of jurors; 3. Denial of a motion for a new trial on the ground of newly discovered evidence; 4. Deprivation of a fair trial because of incapacity of counsel; 5. Admission in evidence of Exhibit A3.
No detailed statement of the transaction out of which this prosecution grew would be in the least helpful in understanding the assignments or our reasons for
1. Perhaps no other record before this court has been scrutinized more carefully by all the Justices. It discloses many conflicts in the testimony and doubtless much perjury. Where truth and where falsehood lie is not for our resolution. The verdict testifies to the credence given by the jurors to that which supports it and permissible inferences deducible therefrom. We can not interfere with that verdict on this ground.
2. During the trial the jurors stayed at different hotels. In one group of them, White, stated to others that defendant was “no good”; that he held, or had held, two of his short checks. Another told White that he held such a check from “the Welches.” The White checks referred to were for $1.50 each. There was no discussion of them after the case was submitted. It appeared that those mentioned by White had been given several years before the trial and not by defendant. These' facts were developed on the hearing of the motion for a new trial. Since the motion was overruled we must assume that this loose jury talk was considered by the court as too trivial to have deafened any juror to his oath or colored his verdict. In so holding no abuse of discretion appears. True, the jurors involved testified that this “short check” talk did not influence their verdict. Such evidence was incompetent. McLean v. People, 66 Colo. 486, 180 Pac. 676; McPhee v. People, 108 Colo. 530, 120 P. (2d) 814. Many authorities hold it improper to admit evidence in impeachment of a verdict that extraneous considerations influenced concurrence therein, but even this rule has its well-recognized exceptions. Wharton v. People, 104 Colo. 260, 90 P. (2d) 615. Our attention has been called to no case in which it was held reversible error to admit statements by a juror that such considerations did not influence his verdict. Such testimony amounts to nothing more than the juror’s assertion that he kept his oath and in the absence
3. One ground of the motion for a new trial was newly discovered evidence. This alleged evidence falls into two classes, i. e., the impeachment of two witnesses, and facts appearing by the county records. One witness named was endorsed on the information, hence defendant had notice of his presumed information. One witness, whose impeachment is sought, testified only in rebuttal. The county records referred to were public and kept in the building where the trial was held. Their relevancy, if any, should have occurred to defendant and his counsel prior to the termination of the trial. None of this “newly discovered evidence” tends to negative defendant’s guilt and there is no probability that any of it would change the result, hence the assignment is without merit. Christ v. People, 3 Colo. 394; Miller v. People, 92 Colo. 481, 22 P. (2d) 626; Mitchell v. People, 53 Colo. 479, 128 Pac. 61; Edwards v. People, 73 Colo. 377, 215 Pac. 855.
4. It is contended that defendant failed to have a fair trial because of the physical and mental affliction of his leading counsel. In our opinion there is neither allegation, evidence nor argument supporting this con-, tention save as it applies to the following assignment. We so limit our consideration of it.
5. Exhibit A3 was a prior written statement made by the peoples’ witness, Kohler. It was referred to by him on cross-examination and further developed and offered by the district attorney on re-examination to corroborate
This court has upheld the general rule that the admission of such statements for such purpose constitutes reversible error. Connor v. People, 18 Colo. 373, 33 Pac. 159; 25 L. R. A. 341; 36 Am. St. Rep. 295; DePriest v. People, 64 Colo. 358, 171 Pac. 1004; Baker v. People, 72 Colo. 68, 209 Pac. 791. There are, of course, certain well-recognized exceptions to this general rule. Coates v. People, 106 Colo. 483, 106 P. (2d) 354. The writer here simply records his opinion, on which the concurring Justices express no view, that the present case falls within the exceptions and that, were it otherwise, the rule is devoid of logical support and the foregoing authorities upholding it should be overruled. His reasons for that view are here omitted as immaterial since we base our refusal to sustain this assignment upon a different, and in our opinion impregnable, obstacle.
The ruling, now so vigorously contested, was not called to the attention 'of the lower court by defendant’s motion for a new trial. The holding in this jurisdiction is that alleged errors not so presented will •not be considered here. Eachus v. People, 77 Colo. 445, 236 Pac. 1009; Dockerty v. People, 96 Colo. 338, 44 P. (2d) 1013. There are, of course, exceptions to this rule. These the grounded upon the overriding principle that in clear cases of the absence of sufficient evidence of guilt, or the gravest doubt thereof, we will go beyond the abstract and assignment and notice any reversible '
Mr. Granby Hillyer was leading counsel in this case as he had been in a preceding mistrial of it and it is contended that defendant suffered judgment because of his incapacity. We have disposed of this point, supra, save in so- far as it relates to failure to include the admission of Exhibit A3 in the motion for a new trial. It is here urged that this failure was due to Mr. Hillyer’s incapacity and that oversight so arising should in the interest of justice be included among those exceptions to the rule requiring that before such an error can be taken advantage of here it must be called to the attention of the trial court by motion for new trial and opportunity be there given to correct it. If the failure here apparent could reasonably be ascribed to counsel’s affliction that position would certainly merit our most careful consideration. But that it can be so ascribed we are unable to assume from the record before us and from facts of which this court should take judicial notice.
That Mr. Hillyer was suffering from a most annoying and troublesome affliction is beyond question. But that this went further'than an impediment in his speech does not appear from the record. This affliction had been of long standing. It was with him during the first trial of this cause, as well as the second, and was patent to everyone when he more than once appeared in this court in other causes. It apparently had no adverse
Finding no reversible error in the record the judgment is affirmed.
Mr. Chief Justice Knous, Mr. Justice Hilliard and Mr. Justice Stone dissent.
Dissenting Opinion
dissenting.
I do not pause to discuss all the points which I am convinced should work reversal of the judgment, but in relation to the ones I shall emphasize, namely, (1) the admission in evidence of People’s Exhibit A-3, and (2) the prejudicial conduct of some of the jurors, and particularly that of juror White, I regard the factual statement in the major opinion as inadequate for a proper understanding of the case. I venture, therefore, to undertake a more comprehensive review of the record.
Plaintiff in error and one Robert Kohler were jointly charged with grand larceny, in that they “did steal,” as said, “two head of neat cattle of the value of $90.00,
Kohler, who lives across the state line in Oklahoma, admittedly sold and delivered the cattle to another Oklahoman and collected the agreed sale price in cash. He did not immediately execute and deliver to the purchaser a bill of sale, but subsequently, as he claimed, did execute one and left it with a filling station operator, from whom, presumably, the purchaser obtained it. Shelden, missing the cattle, made inqury and search and learned that they had been sold and delivered by Kohler as already stated. Kohler was charged preliminarily before a justice of the peace, and, flanked with an Oklahoma lawyer, he accompanied the prosecuting witness and an Oklahoma sheriff to the Colorado jurisdiction. When apprehended he claimed that November 11, 1938, he had bought the cattle from plaintiff in error, but admitted he did not have a bill of sale therefor or other writing covering the claimed transaction. He maintained, however, that plaintiff in error had promised to give him a bill of sale. More particularly, Kohler said, that, “When Roy [plaintiff in error] delivered the cows to our place he said that up in Colorado you need a bill of sale. I told him that I did not need one since I intended to keep the cattle around the place. He said that if I needed one he would give it to me.” It is worthy of consideration, I think, to mention at this point that Kohler did not “keep the cattle around the place” of their claimed delivery, as
On the strength of Kohler’s statement he was taken to the home of plaintiff in error in Baca County, the laid venue, were they found and confronted him with Kohler’s statements, to which plaintiff in error made denial. Kohler waived preliminary examination and was held in bond to the district court. February 7, 1939, and while he was being so held, he signed Exhibit A-3. December 11, 1939, he resigned the exhibit and verified it before the clerk of the district court. It is to be remarked that Kohler, while selling the cattle for cash, as stated, testified he got them from plaintiff in error in exchange for three “pickup” truck loads of, corn, to be delivered to the ranch of plaintiff in error’s brother. This ranch was many miles from the home of plaintiff in error. Kohler testified that he made delivery of the corn on three different occasions, but only on the first, when he saw the brother’s wife, as he further testified, did he see anyone. He simply dumped the corn in a metal container near the house and went his way. The Mrs. Welch he claimed to have seen, testified that no such delivery was made, nor, as her constant cognizance of the activities on the ranch justified her claim of opportunity to know, and as she further testified, did Kohler deliver other loads of corn on the premises. A daughter of this Welch ‘family, of high school age, living at home, testified that Kohler made no such deliveries of corn at their place. References to' the foregoing is not made on the theory that the jury was bound to believe Mrs. Welch and her daughter, nor is the relationship of the two Welch families being disregarded. It is fair to observe, however, that incentive to perjury on their part, as I conceive, was not
1. In the matter of the admission of Exhibit A-3, as stated in the court opinion, it was “offered by the district attorney on re-examination to corroborate the witness’s [Kohler’s] testimony and so admitted over repeated objections,” predicated whereon the opinion adds, that, “This court has upheld the general rule that the admission of such statements for such purpose constitutes reversible error.” In support of the holding, the opinion cites Colorado cases, as follows: Connor v. People, 18 Colo. 373, 33 Pac. 159; 25 L.R.A. 341; 36 Am. St. Rep. 295; DePriest v. People, 64 Colo. 358, 171 Pac. 1004; Baker v. People, 72 Colo. 68, 209 Pac. 791. Thus, correctly, the court stated the announced purpose of
While Kohler was under cross-examination by defendant’s counsel, he was asked the following question: “Why were you conferring with Mr. Sheldon, you and your father and your attorney, why were you conferring with Mr. Shelden who was prosecuting you for stealing his cattle?” To which Kohler responded: “A. I never stole them cattle. And I came up here, the sheriff never came after me, I came up here of my own accord and made a written statement here to the officers, and signed it, of the whole transaction, of the deal at that time; there was no one came after me, or anything. I didn’t steal them cattle; I came up and told them about the deal, and I made a written statement.” As is evident, Kohler’s reference to a “written statement” not only was not responsive to the cross-examiner’s question, but there is nothing in the record to indicate that in relation thereto counsel did other than ignore it. On redirect examination by the district attorney, the record reads as follows: “Mr. Mabry: Q. You stated on cross-examination that you came to Springfield, and made and signed a written statement, Mr. Kohler, is that correct? A. Yes, sir. Q. February 7, 1939? A. Yes, sir. Q. You haven’t read that statement before this trial, have you? A. No, sir; I haven’t seen it. Q. Did you say the same thing in this statement, — I am referring to People’s Exhibit A-3, — as you are saying now? Mr. Hillyer: Just a minute — Mr. Mabry: You asked about it. You went into it. Mr. Hillyer: I object to the District Attorney making statements like that, ‘you asked for it.’ That is not the fact; I did not ask for it; he volunteered that statement. The Court: Well, the jury will be instructed to disregard the remarks of both
I have set forth the foregoing record at length because it shows, conclusively, that over continued and consistent objections by defense counsel that the exhibit was hearsay and incompetent to corroborate the witness Kohler’s testimony, the district attorney offered, and the Court admitted, it to serve that very purpose. We have held repeatedly that such testimony is hearsay and that it is reversible error to admit it, because, while it is incompetent, the jury may, and probably will accept it as corroboration of the witness’ testimony. Of the contents of Exhibit A-3, it is sufficient to say that it is what the district' attorney said it was, an earlier statement by the witness consistent with his testimony on the stand. In Baker v. People, 72 Colo. 68, 209 Pac. 791, we said: “The weight of authority is in support of the view that a witness cannot be sustained by proof of prior statements consistent with his evidence given on the witness stand. 40 Cyc. 2761. This rule has been established in this state by the decision in Connor v. People, 18 Colo. 373, 33 Pac. 159, 25 L.R.A. 341, 36 Am. St. Rep. 295, followed in DePriest v. People, 64 Colo. 358, 171 Pac. 1004.” The persistent manner in which the district attorney proceeded in the matter of his offer of the exhibit, his constant reference to its contents and his challenge to defendant’s counsel to point out in what particular that statement and the witness’ testimony were at variance, all as he was laboring with the court for its introduction, emphasized the error. The philosophy of- the rule is expounded, and the cases are reviewed, in Commonwealth v. Tucker, 189 Mass. 457, 76 N.E. 127, 7 L.R.A. (N.S.) 1056. Never, so far as my research, not sparingly indulged, has made me familiar with the authorities, and equipped me to grasp and understand the rule invoked by plaintiff in error here, has the written statement of
But, as stated in the' court opinion, “The ruling, now so vigorously contested, was not called to the attention of the lower court by defendant’s motion for a new trial. The holding in this jurisdiction is that alleged errors not so presented will not be considered here.” The cases cited in the court opinion in support of the pronouncement I have just quoted, are Dockerty v. People, 96 Colo. 338, 44 P. (2d) 1013, and Eachus v. People, 77 Colo. 445, 236 Pac. 1009. In the Dockerty case the reference is to a motion in arrest and a supplemental motion for new trial, disregarded because filed after expiration of the term at which final judgment had been entered. I cannot think it is a point. In the Eachus case, the language of the court, some words of which I italicize, is, that, “A number of defendant’s assignments of error cannot be reviewed here because they relate to matters which were not raised in the motion for new trial, nor in any manner brought to the attention of the trial court.” How different is the record here. Many pages of the record, already set forth, pertain to the point under discussion, during which there was full revelation, concerning which the trial court, when ruling thereon, was fully advised as to defendant’s contention. Rarely, if ever, has the record of a case afforded the trial court such full opportunity to give attention to a controlling point, determination of which
The fact that employed counsel of plaintiff in error, the late Honorable Granby Hillyer, did not recall “everything” as he proceeded in the preparation of the motion for new trial, and evidently forgot to include the matter of the admission of Exhibit A-3, concerning which the record is replete with his objections thereto, should not, I think, operate to close our eyes to the manfiest error attending the court’s ruling on the point. To the general knowledge of all his acquaintances, and to the particular knowledge of the trial court and its officers, and to the members of this court, Judge Hill-yer, in his strength one of Colorado’s most competent trial lawyers, then was in physical and mental decline. He could not speak above a hoarse whisper, a handicap that necessarily deprived him of his well earned and recognized power of advocacy, as well as of foiling and parrying qualities, in which in health he excelled. It was in recognition of the foregoing, and of the importance of the case, that the trial court, proceeding only a few days before the trial, appointed Donald T. Horn, Esquire, of the Lamar Bar, to aid Judge Hillyer. Mr. Horn neither did, nor was he expected to, prepare the defense or be responsible other than to act in aid of plaintiff in error’s employed counsel in the court room. Judge Hillyer, who had tried the case at an earlier time —and which resulted in a mistrial, the jury not agreeing —made considerable use of Mr. Horn’s vocal qualities in the course of the trial, a role modestly accepted by Mr. Horn. Judge Hillyer, residing in Denver, prepared
2. The prejudice of jurors. The court opinion is re-' strained in its exposition of the facts, but even there, juror White is quoted as saying to other jurors “that defendant is no good,” and “that he held, or had held two of his short checks.” Juror Glasgow, testifying in the matter, stated that he heard other jurors talking about what White had said relative to defendant’s short checks, and “out of curiosity” he asked “White about those checks,” and he answered that “he had two hot checks on Welch, and I supposed he did have.” Juror Barnes testified that he heard the jurors talking about the “worthless checks that Roy might have given,” and on inquiry of him, “Frank White told me, just the words he used, ‘He is no good, I have got two bad checks on
The record further shows that White and three other jurors talked much of the “short checks” incident, all proceeding on the theory that there were such checks, and that Welch had issued them. In the course of this prejudicial conversation, another juror, Nevelles, said he had a short check that Welch gave him. The record considered, it is consistent to conclude that the jury must have given as much attention, if not more, to White’s assertion that he held Welch’s short checks, and other jurors’ like contributions of their mistaken beliefs, than to the facts of the larceny charge on which he was being prosecuted. It is to be borne in mind that while the jurors were discussing short checks, it was believed by them that the checks in question had been given by defendant, whereas, in truth, as the jurors learned subsequent to their verdict, and freely testified on the motion for new trial, the checks were not defendant’s. Juror White explained his error by saying that his wife told him that Welch gave the checks they held, and since he himself had not seen the man who had given the checks, he supposed the defendant was the one to whom his wife had referred. Thus fortified, White, proceeding on the erroneous premise appearing, and unmindful of his duty to consider only the evidence in relation to the charge of larceny against defendant, said to other jurors that which not only was calculated to prejudice them, but to fortify himself in his declared conviction that the “defendant is no good.” The fact that White dwelt upon the check matter with other
In considering this question, recourse may be had to the well known procedural rule to the effect that it is not permissible ■ for the prosecutor to introduce evidence of offenses other than the one charged. Suppose that here the district attorney had sought to introduce evidence of the short checks incidents, Is it supposable that the court would have permitted it? No. But assuming the contrary, it would not have been fraught with the insidious implications of the record here, and, besides, defendant could have shown (as the fact was) that he was not the individual who gave the questionable" checks. In the state of the record, White the juror, in secret retirement with his fellows, some of whom contributed thereto, and without the knowledge of defendant or his counsel, unknown to the district attorney, and, of course, without the permission of the court, was urging upon the attention of his fellows that which the district attorney no less than defendant’s counsel, having knowledge thereof, would have denounced at once.
The issue is not met, as I conceive, by the suggestion in the court opinion that for housing purposes the jurors were grouped and lodged in separate hotels, and that juror White confined his efforts to those with whom he was lodged. In the performance of their duty jurors act as an entirety, not in groups, and since to be effective all must agree, a group of the jurors, however small, or even one juror, of the panel chosen to try the case, guilty of the misconduct concededly appearing here, appraised by any measure of justice, should void the verdict returned. It is the fact of the “bad apple” in the barrel, not the place therein, that works destruction of the entire contents. That the two checks White discussed were old and small, does not make his conduct less baneful. Besides, it was not until after the verdict, and then in an open court inquiry, that he disclosed the size and dates of the checks he told other jurors he held. When “working” on his fellow jurors, his story was of “two short checks,” nothing as to dates or amounts, perforce Welch was “no good.” It should be noted, too, that in answer to Welch’s motion for new trial, White made an affidavit in which he swore he did not discuss “short
' Considering the prejudicial attitude of juror White, and some of his fellows, less voluble, their voluntary and secret communications of nonpertinent and non-competent, but most damaging, accusations against defendant to their fellow jurors — brought to light after the event — a verdict of guilty, plus the further challenging fact that they were wholly mistaken in all they said or implied, I submit that denial of defendant’s motion for new trial was shockingly wrong. A man on
Mr. Chief Justice Knous concurs in this dissenting opinion, and Mr. Justice Stone, who'limits his consideration to the admission of Exhibit A-3, also concurs.
Rehearing
On Petition for Rehearing.
In further support of my firm conviction that plaintiff in error was not accorded a fair trial, already stated at some length in my dissenting opinion, in which two other justices concurred in whole or in part, I now set forth his petition for rehearing filed by counsel, which is as follows:
“Petition for Rehearing”
“The Plaintiff in error, by his attorney, Wilkie Ham, prays the Court for a rehearing, and as grounds respectfully suggests:
“1. The Court, in the majority opinion, page 6, stated: ‘That Mr.' Hillyer was suffering from a most annoying and troublesome affliction is beyond question. But that this went further than an impediment in his speech does not appear from the record .’
“The above statement was made in connection with the Court’s discussion of the admissibility of * * * exhibit A-3, and his failure to include it in the motion for new trial.
“I respectfully submit that the Court misapprehends the fact as to Mr. Hillyer’s physical condition and the state of- his health at the time the motion for new trial
“It is certain that the loss of voice conceded by the Court in the majority opinion would have nothing to do with Mr. Hillyer’s ability to prepare a motion for new trial. The Court, in the majority opinion page 6, states: ‘If the failure here apparent [that is, the failure to mention in the motion for new trial the erroneous reception in evidence of exhibit A-3] could reasonably be ascribed to counsel’s affliction that position would certainly merit our most careful consideration.’
“The Court, in the majority opinion, then states: ‘But that it can be so ascribed, we are unable to assume from the record before us and from the facts of which this Court should take judicial notice.’
“From this statement of the Court, it is apparent that the Court would take Mr. Hillyer’s physical condition into consideration, but considered he had only a loss of voice. This is evident by what the Court said, page 6 of the opinion. ‘This affliction had been of long standing * * * and was patent to everyone when he more than once appeared in this Court in other causes.’
“Surely Mr. Hillyer did not appear before the Supreme Court ‘ill and under extreme difficulties and handicaps because of affiant’s critical condition.’ It is clear that the Court in its opinion has misapprehended the undisputed fact of record as stated in the motion for new trial, that Mr. Hillyer’s condition (not his voice) was that he had been ill ever since the termination of the trial, and that the preparation of the motion for new trial had been done under extreme difficulties and handicaps because of ‘Affiant’s critical physical condition.’ It is difficult to imagine a stronger statement
“2. The Court, on page 2, of the majority opinion, states that the record ‘discloses many conflicts in the testimony and doubtless much perjury. Where truth and where falsehood lie is not for our resolution. The verdict testifies to the credence given by the jurors to that which supports it and permissible inferences deducible therefrom.’
“I respectfully submit that, in such a situation, it is the function of the reviewing Court to be especially watchful that no error occurred in the trial of the case. Where the evidence is one-sided, clearly, preponderant and there are not any ^conflicts in testimony, in such a case error might be harmless. But in a case such as the Court describes the case at bar, any error might cause a miscarriage of justice. The case at bar is replete with errors, prejudicial to the plaintiff in error, and especially where as here there is a serious conflict of testimony.
“3. The Court, in the majority opinion, page 3, with reference to the fact that one of the jurors had stated that the defendant was ‘no good,’ and that he had bad checks on him, states: ‘Many authorities hold it improper to admit evidence in impeachment of a verdict that extraneous considerations influenced concurrence therein, but even this rule has its well recognized exceptions. Wharton v. People, 104 Colo. 260.’
“I submit that the Court has misapprehended the law as announced in the case of Wharton v. People. This case holds that affidavits may be submitted by the jurors for consideration of the trial Court in the determination of the trial Court as to whether or not the defendant had had a fair trial, but the case of Wharton v. People nowhere states that a juryman, under any circumstances, may state that his verdict was influenced by extraneous considerations.
“The Court, in the majority opinion, further states: ‘Such testimony amounts to nothing more than the juror’s assertion that he kept his oath and in the absence thereof all presumptions are that he did so.’
“The law, as announced by the Court, makes the rule set forth in Wharton v. People, 104 Colo. 260, of no effect, if the juryman states that his verdict was not influenced by those extraneous matters, and it means that, regardless of the nature of the prejudicial matter coming before the jury, if the juryman states that his verdict was not influenced by this matter, that would dispose of any contention that the juror might have been influenced by this matter.
“It is respectfully submitted that a juryman may not properly state that his verdict was influenced, and he also may not properly state that his verdict was not influenced.
“The statement of the Court from the case of Garden City Feeder Company v. Comm’r of Internal Rev., 75 Fed. (2d) 804, is a rule announced in the Colorado .cases of Brown v. Estate of Roche, 87 Colo. 432, at page 435, and Church v. Ice Cream Co., 89 Colo. 390, at page 392. This is the general rule, but, notwithstanding that rule,
“If the rule citing Garden City Feeder Company v. Comm’r of Internal Rev., 75 Fed. (2d) 804, and the rule announced in the two Colorado cases just cited shall have reference to the effect of evidence taken in the trial by Court and is applied with respect to hearings on the deliberations of a jury, then there would never be any occasion for the rule that a juror cannot impeach or sustain his verdict by stating that certain matters did or did not influence him, because these hearings are always to the Court, and my research has never disclosed a statement of any authority that it was immaterial whether the juryman stated in the hearing before the Court that he was or was not influenced by certain matters.
“4. The Court in the majority opinion states, in effect, that, in order for a defendant in a criminal case to have consideration of an error committed in the trial, he must present it in his motion for new trial. This is a rule adopted by the Supreme Court to cover civil cases, and I respectfully submit that it was not the law in Colorado prior to the announcement herein, and that it creates a very severe burden on defendants in criminal prosecutions who frequently have scant funds to have a bill of exceptions prepared before the motion for new trial is filed. And I further respectfully submit that the authorities cited by the Court on page 5 of the opinion do not support the rule as announced by the Court in its opinion.
“The rule as announced leaves the practitioner in the position of being unable to tell under what circumstances the Court will apply the rules laid down in Reppin v. People, 95 Colo. 192; Stowell v. People, 106 Colo. 258; and other cases. Since the practitioner will be unable to determine when the reviewing Court will
“5. The plaintiff in error was granted in the first rehearing an opportunity for oral argument. When the second rehearing was granted, plaintiff in error in his answer brief requested oral argument. The plaintiff in error is not aware of the reason that oral argument was not permitted on the second rehearing. Various points have been raised by both attorneys for the defendants in error and plaintiff in error, and, in the opinion of the attorney for the plaintiff in error, warranted a discussion before the Supreme Court.”
I think the petition should be granted. In addition to the fact that I regard the contentions therein incorporated legally sound and logically compelling, I commend the document as a model. Not only is it becomingly respectful and dispassionate throughout, but is well colculated, as I believe, to move reviewing ministers of justice to give pause ere they voice final denial of an unfortunate man’s plea for a trial to be conducted in conformity with procedural rules conceived in the interest of the public and of those charged with crime.
