Boykin v. People

Decision Date18 May 1896
Citation45 P. 419,22 Colo. 496
CourtColorado Supreme Court

Error to district court, Arapahoe county.

Robert J. Boykin was convicted of murder in the second degree, and brings error. Reversed.

David G. Taylor, for plaintiff in error.

B. Atty. Gen., George H. Thorne, and B. M. Malone, for the People.


Under an indictment charging him with the murder of Milton Smith, the plaintiff in error, Robert J. Boykin, was convicted of murder in the second degree, and sentenced to confinement in the penitentiary for a term of 10 years. To this judgment he prosecutes his writ of error in this court assigning for error numerous rulings by the trial court First, errors relating to the rulings of the court upon defendant's objection to the manner of summoning the jury, and to his challenge to the array of jurors therefor second, insufficiency of the evidence; third, errors of the court in admitting and rejecting evidence; fourth, error in allowing witnesses to testify whose names were not indorsed on the indictment; fifth, errors in the instructions to the jury.

1. Early in the month of February, 1895, upon application of the defendant, an order was made by the court setting aside the sheriff, and appointing elisors to act, in summoning jurors and throughout the trial. On the following day, the court modified the same by substituting the county coroner for the elisors. After these orders were entered, the cause was continued, and set for trial on the 18th of the following March. Upon the day set for trial, the defendant interposed his challenge to the array of the panel of jurors, upon the ground that they had been summoned by the sheriff, and not by the coroner, as previously ordered. It appears that the panel in question was summoned generally by the sheriff for service at that term of court, and for specially for this trial. Whether summoned before the order setting aside the sheriff was entered, or thereafter, does not clearly appear. The court overruled the challenge, which ruling is assigned for error.

If there was no waiver by the defendant of this irregularity, the court should have sustained the challenge; but an inspection of the record discloses the fact that the attorney for the defendant, at the time of the hearing of the challenge to the array, expressly stated that the jurors included in said panel were not prejudiced, or illegally drawn or summoned in any other respect than that specified, and there was no suggestion at all as to prejudice or bias on the part of any of the jury. It further appears from the record that the defendant did not exhaust his peremptory challenges. In view of these facts, we are of opinion that the irregularity was waived. As defendant's counsel admits not only the personal qualifications of the jurors, but that, as jurors, in all respects they are unobjectionable, it would be idle to quash the panel, when no possible injury could result to the defendant from selecting a jury therefrom. Ferris v. People, 35 N.Y. 125; Light Co. v. Haldeman (Neb.) 52 N.W. 892; Wilhelm v. People, 72 Ill. 468; State v. Gray (Nev.) 8 P. 456.

2. The contention of the defendant that the evidence was insufficient to justify the verdict is not tenable. The evidence was conflicting, but there was, to say the least, sufficient evidence, if the jury saw fit to believe it, to justify the verdict.

3. There is nothing in the objection that there was not sufficient foundation laid for the admission of evidence for the people as to deceased's reputation, which had been attacked by defendant. The record discloses that such foundation was laid, though not in that orderly way which should be observed. Neither was there error in refusing to permit defendant to reopen his case after the people's rebuttal evidence was in, nor in the other rulings upon the evidence assigned for error.

4. The court, over defendant's objection, permitted the district attorney, prior to the trial, to indorse upon the indictment the names of two witnesses not thereon when defendant was arraigned, and these witnesses testified. This was not the occasion of surprise to defendant, though he insists that it was; but the record affirmatively shows that he and his counsel knew of these witnesses, and what their testimony would be, and there was no showing below, or reasonable claim here, that defendant did not have ample time to meet this testimony.

5. The fifth instruction given by the court omitted the words 'from the evidence,' and from this it is argued that the jury were left to predicate their belief upon something other than the evidence, and that the error was prejudicial. We do not think, however, that the defendant has been prejudiced, because in nearly all of the other instructions the jury are expressly told that their findings must be based upon the evidence, and upon the evidence alone. The mere omission in one instruction of this language is not sufficient to work a reversal. Gorman v. People, 17 Colo. 596, 31 P. 335; Ingols v. Plimpton, 10 Colo. 535, 16 P. 155; Salomon v. Webster, 4 Colo. 353.

6. The sixth instruction to the jury was as follows: 'The law presumes that the defendant is innocent of the crime charged against him in this indictment, and it is your duty, in considering this case, to give him the full benefit of that presumption. If he is to be convicted at all of either of such crimes, it must be upon the testimony which has been produced here upon this trial.' Counsel for plaintiff in error concedes that the first sentence in the instruction was correct, but contends that the addition of the words by us italicized was improper. Why they are improper we are not advised. Certainly, the effect of the language is to make emphatic the presumption of innocence referred to in the first sentence of the instruction, and it evidently was given for the benefit of the defendant, and its effect on the jury must have been favorable to him.

7. The criticism of the seventh instruction given, as to the definition of reasonable doubt, we think, is not sound. Therein the definition, while not exactly in the language of the instruction approved by this court in Minich v. People, 8 Colo. 454, 9 P. 4, is, nevertheless, in harmony therewith. Where, however (as in the case cited), this court has approved of an instruction relating to 'reasonable doubt,' and defining those words, it is the safer practice for trial courts to give it, particularly when so asked, rather than to run the risk of expressing the same though in different language of their own. We say it is the safer practice, because defendant's counsel will acquiesce therein, and it will relieve this court of unnecessary examination of instructions claimed by one counsel, and denied by the other, to be kindred in meaning to the one already approved.

In the twenty-fourth instruction, the court instructed the jury, inter alia, that, in determining the credibility that should be accorded to the testimony of the defendant, they had 'a right to take into consideration the fact that he is interested in the result of the prosecution, as well as his demeanor and conduct upon the witness stand and during the trial.' The objectional part of the instruction is said to be that the jury may consider the demeanor of the defendant during the trial, and that such instruction, containing such words, constitutes prejudicial error, and was so held by the supreme court of Illinois in the cases of Purdy v. People, 140 Ill. 46, 51, 29 N.E. 700, and Siebert v. People, 143 Ill. 571, 593, 32 N.E. 431. The instruction given by the trial court, as to that part now under consideration, is identical in language with one approved by the supreme court of Illinois in Hirschman v. People, 101 Ill. 568, and also in Rider v. People, 110 Ill. 11. In the subsequent case of Purdy v. People, 140 Ill. 46, 29 N.E. 700, an instruction containing the same language is condemned as to the words 'during the trial.' Again, in Siebert v. People, 143 Ill. 571, 32 N.E. 431, the same instruction, omitting, however, the words 'during the trial,' received the sanction of the court, which, in the immediate connection, refers approvingly to the two cases supra, from 101 and 110 Ill., and says that there was no intention in the Purdy Case to change the rule of law in said two earlier cases, and that there was no conflict between them and the Purdy Case. A critical examination of the decision in the Purdy Case shows that the defendant was the only witness in his own behalf, and this fact, and the further fact that the court was in grave doubt as to the sufficiency of the circumstantial evidence to warrant a conviction, led the court to hold that the instruction did not fully and fairly submit to the jury the question of defendant's credibility. We are unable to harmonize the decision in the Purdy Case with the two earlier cases, unless the former rule announced is to be confined to the peculiar state of facts of that case, and possibly, as so restricted, it might not be objectionable. We are, however, of the opinion that the instruction as given by the trial court in the case at bar is correct, certainly as applicable to the facts of this case.

We cannot agree with the argument that the defendant's conduct during the trial of a case and in the presence of the jury is not a proper subject of their observation. Indeed, we know it to be a fact, grounded in human nature, that the conduct of a defendant or of a party to a suit during the trial is more or less potential, and has necessarily more or less influence with the court and jury upon the question of his credibility; and it would manifestly be improper to instruct the jury that they should not accord to a defendant's demeanor at such times due...

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