Bahrman v. Terry

• Decision Date: 02 March 1903
• Citation: 31 Colo. 155,71 P. 1118
• Parties: BAHRMAN v. TERRY. [*]
• Court: Colorado Supreme Court

71 P. 1118

31 Colo. 155

BAHRMAN v. TERRY. ^[*]

Supreme Court of Colorado

March 2, 1903

Error to Boulder County Court.

Action by W. R. Terry against Henry Bahrman. From a judgment for plaintiff, defendant brings error. Reversed.

T. M Robinson, for plaintiff in error.

John R Wolff, for defendant in error.

STEELE J.

A judgment was rendered in the county court against the plaintiff in error in the sum of $125. We shall consider those assignments of error only which relate to the refusal of the court to permit certain of the witnesses to testify. At the trial a rule was entered excluding the witnesses while others were testifying. Two witnesses returned to the courtroom during the trial, and the court refused to permit them to testify fully. Their examination was limited to matters not under consideration when they were in the courtroom. It did not appear that the defendant knew the witnesses had returned to the courtroom, or that the defendant induced them to violate the rule. 'The prevailing doctrine is that the violation of such an order by witnesses will not deprive the party, whose witness he is, of the benefit of his testimony, if the party himself is without fault. But where the order has been disobeyed by the consent or procurement of the party seeking to use the witness, the court may, in the exercise of a sound discretion, refuse to receive the testimony.' Kelly v. Atkins, 14 Colo.App 208, 59 P. 841. In some circumstances, however, where close relationship exists between the witness and the party calling him, it is incumbent upon the party to show that he is without fault; and in the absence of such showing it is within the discretion of the court to exclude the testimony. Hennessey v. Barnett, 12 Colo.App. 254, 55 P. 197.

In this case it does not appear that the court, in the exercise of its discretion, excluded the testimony upon a showing, but the testimony was excluded solely because of the violation of the rule by the witnesses. This is not in accordance with the doctrine as announced by the Court of Appeals, nor as supported by the various text-writers upon the subject. It is stated by Wharton, in his work on Evidence, speaking on the subject of separation of witnesses, that 'whenever sufficient ground is laid for the application the judge may at his discretion, order such a separation of witnesses as may prevent those not yet examined from hearing the testimony of the witness on the stand. Whoever is yet to be examined, if his presence be not necessary, is subject to this rule. A witness' testimony, it is true, will not be ruled out because he remain in the court, even willfully after being ordered to withdraw; but he exposes himself, by his disobedience, to an attachment for...