Babcock v. People

• Decision Date: 06 December 1889
• Citation: 22 P. 817,13 Colo. 515
• Parties: BABCOCK v. PEOPLE.
• Court: Colorado Supreme Court

22 P. 817

13 Colo. 515

BABCOCK v. PEOPLE.

Supreme Court of Colorado

December 6, 1889

Error to district court, Garfield county.

Syllabus by the Court

1. A motion for change of venue on the ground of prejudice of the inhabitants against the accused, not supported by the requisite number of reputable citizens, is not sufficient.

2. A panel of jurors drawn less than 30 days before the term need not be discharged for that reason; but the discharge of such panel, and the summoning of another by open venire it not appearing why the panel was discharged, is not error.

3. Counsel may request, in the presence of the presiding judge or the judge himself may direct, that only good and lawful men be summoned as jurors. But to request the sheriff to discriminate in favor of or against any class of citizens eligible to jury duty would be a grievous wrong. Whether such intermeddling would be ground for reversal depends upon the circumstances of the case.

4. The court is the trier of the qualifications of jurors, and its decision on the ground of previously formed or expressed opinions will not be disturbed, except in case of gross abuse of such power.

5. It is proper to excuse from the jury a person who is not a citizen of the United States, and who has never declared his intention to become such.

6. Where a party is really surprised by the testimony of his own witness, it is in the discretion, and is often the duty, of the court to allow leading questions to be propounded; and in an extreme case, a cross-examination of such witness by the party calling him should be permitted; but sound discretion must be exercised, lest the privilege be abused.

7. A party cannot be allowed to impeach his own witness by showing that his reputation for truth and veracity is bad; nor can a party, in general, be allowed to introduce other witnesses to show that his own witness at another time has made other or different statements from those he has given in evidence on the trial.

8. When a party, by one witness, has introduced certain testimony, he is not necessarily bound thereby, but may give contradictory testimony by another witness or witnesses, and may thereafter in argument claim the benefit of the more favorable portion of such contradictory testimony.

9. It is competent for the state, on a trial for murder, to show threats made by defendant against deceased as tending to prove the malice charged in the indictment.

10. There being some evidence of a hostile act by deceased immediately before the commission of a homicide, evidence of threats by deceased against the accused is competent, though it does not appear that the threat was communicated. The length of time between the threat and the homicide does not destroy the competency of the evidence, though it may weaken its effect.

11. Sections 31, 32, 33, and 39, respectively, of the Criminal Code, may be given as instructions when the killing is in an open manner, and the plea of self-defense is relied on.

12. It is error to charge the jury, upon a trial for murder, that to justify homicide, on the plea of self-defense, it must appear that the slayer had no other possible, or at least probable, means of escaping, etc.

13. It is error to charge the jury that, if they believe the killing was without any malice, deliberation, or premeditation whatever, they should convict of murder of the second degree; and such charge must be considered erroneous, even when the conviction is murder of the first degree.

Jos. W. Taylor, for plaintiff in error.

The Attorney General and H. Riddell, for defendant in error.

ELLIOTT J.

The plaintiff in error was defendant below. He was indicted, convicted, and sentenced to be executed for murder of the first degree at the October term, 1888, of the district court of Garfield county. Having obtained a supersedeas upon the writ of error from this court he asks a review of the record of such conviction, and a reversal of the judgment, upon numerous assignments of error.

The motion for a change of venue, on the ground of the alleged prejudice of the inhabitants of the county against the accused, was not supported by the requisite number of reputable citizens, as provided by the act of 1885; nor does it appear that there was any abuse of discretion on the part of the court in not allowing defendant a longer time to prepare for trial. It does not appear that defendant asked for a continuance. The cause was set down for trial six days in advance; it does not appear that a postponement was asked for. In many of the counties of the state the time allowed for the term of the district court is only one or two weeks, and the court sits only once or twice a year. Hence it is often of great importance that the trial of a criminal case should take place at the term when the indictment is returned; otherwise witnesses might become scattered, and a failure of justice be thereby occasioned. It must not be inferred from this, however, that a really meritorious application for a change of venue or for a continuance should be denied.

The panel of petit jurors was drawn on September 3, 1888, and the venire issued thereon was made returnable as required by law on the first day of the next term, which was the 1st day of October following. We agree with defendant's counsel that there was no necessity for discharging such panel of jurors on the ground that the statute literally requires the drawing to be 30 days before the term. But we are not prepared to say that the discharge of the panel, and the summoning of another by open venire, as provided by statute in such cases, was an error requiring the reversal of the judgment. It does not affirmatively appear why the panel was discharged. Minich v. People, 8 Colo. 440, 9 P. 4.

When a panel of jurors, grand or petit, is ordered to be summoned by the sheriff upon an open venire, it is not error for the district attorney or other counsel to request, openly, in the presence of the presiding judge, nor for the judge himself to direct, that the officer charged with the selection of the panel shall summon only good and lawful men, for such is the command of the writ. But for any officer of the court or other person to request the sheriff to discriminate, in such selection, in favor of or against any class of citizens eligible to jury duty would be a grievous wrong, and the court should not tolerate such practices for a moment. Whether such intermeddling, if shown, would be ground for reversal would depend upon the circumstances of the case. In this case defendant's charge of such improper conduct is not sustained by the record.

Several persons called as jurors stated, in substance, when examined upon their voir dire, that they had opinions or impressions previously formed or expressed with reference to the guilt or innocence of the accused, and that it would require evidence to remove the same; but that, notwithstanding such opinions or impressions, they could give the accused a fair trial, and render an impartial verdict, according to the law and evidence submitted on the trial. The statute of 1872 (Gen. St. § 1893) makes the trial court the trier of the qualifications of jurors when challenged on the ground of such opinions or impressions; and this court will not disturb the finding of the court thereon, except in case of gross abuse of such power. In this case, we think the rulings of the trial court were entirely correct. That a person has an opinion or impression concerning the guilt or innocence of the accused which can only be removed by evidence is by no means conclusive of his disqualification to serve as a juror. Solander v. People, 2 Colo. 48; Jones v. People, Id. 351; Mining Co. v. Bank, Id. 565; Jones v. People, 6 Colo. 452; Railroad Co. v. Driscoll, 12 Colo. ----, 21 P. 708.

It was quite proper that the court should excuse from the jury William Wood, when it was shown that he was not a citizen of the United States, and had never declared his intention to become such. Gen. St. § 1891; Acts 1885, p. 263.

JohnMarshall a witness in behalf of the people, having testified concerning the shooting of deceased by the defendant, said, also, that deceased had dropped his cane, and put his hand in his hip pocket, just before the shooting, and that when witness came to the wounded man immediately afterwards his hand was still in his hip pocket. The district attorney, having shown by further examination of the witness that he had testified concerning the shooting at the coroner's inquest a day or two after the occurrence, proceeded to ask the witness if he had at the inquest stated anything about deceased's dropping his cane and putting his hand in his hip pocket, and other questions of like character. These questions were objected to, on the ground that the district attorney should not be allowed to impeach or cross-examine his own witness. It is evident that these questions were propounded to the witness with the hope of modifying or breaking the force of his testimony. How far a party may be allowed to go in an attempt to overcome the consequences of damaging testimony given by his own witness is a question of considerable difficulty. Questions of this character have engaged the attention of able jurists, as well as learned authors on the law of evidence. The doctrine of the common law, as sometimes stated, is to the effect that the party calling a witness recommends him as worthy of credit, and therefore cannot be permitted to impeach, cross-examine, or discredit him in any way; also that, as a witness is presumed to be favorable to the party calling him, he must not be asked leading questions on his examination in chief. Exceptions to these rules have long existed, and it may be doubted if in common practice ...