Dawkins v. Chavez

• Decision Date: 27 June 1955
• Docket Number: No. 17577,17577
• Parties: W. K. DAWKINS, Plaintiff in Error, v. Reymunda CHAVEZ, Defendant in Error. . En Banc
• Court: Colorado Supreme Court

Page 821

285 P.2d 821

132 Colo. 61

W. K. DAWKINS, Plaintiff in Error, v. Reymunda CHAVEZ, Defendant in Error.

No. 17577.

Supreme Court of Colorado.

En Banc.

June 27, 1955.

Rehearing Denied Aug. 8, 1955.

Wolvington & Wormwood, Denver, for plaintiff in error.

Frank A. Bruno, Gail H. Haddock, Denver, for defendant in error.

MOORE, Justice.

We will herein refer to the parties as they appeared in the trial court, where plaintiff in error was defendant and defendant in error was plaintiff.

This action was brought by plaintiff Reymunda Chavez against defendant W. K. Dawkins to obtain a judgment for damages sustained by her as a result of the death of her nine year old doughter allegedly caused by defendant while driving his automobile recklessly, negligently and carelessly in the city of Denver. In her complaint plaintiff included an illegation that defendant had consumed large portions of intoxicating liquor immediately prior to the incident which resulted in the death of the child, and that he was in no condition to operate a motor vehicle on a public highway at the time of the fatal accident.

Defendant by answer admitted ownership of the automobile described by plaintiff, but denied that he was driving same at the time of the accident.

The case was tried to a jury, and verdict rendered in favor of plaintiff for the sum of $10,000. After motion for a new trial was filed and overruled, judgment was entered on the verdict, and defendant, seeking reversal of the judgment, brings the case to our Court for review by writ of error.

Plaintiff's daughter was struck while crossing an intersection at California and Downing streets at about 6:45 P.M. March 15, 1953. The car which struck her was travelling south on Downing street at a high rate of speed. In view of the grounds for reversal of the judgment urged by counsel for defendant, we will outline a more detailed statement of the evidence in connection with the treatment of the matters which they contend constitute reversible error. Their argument consists of four major points as follows:

1. The trial court erred in permitting the witnesses, Grace Martin, to testify concerning her identification of defendant while he was in a 'line-up' at the police department.

2. That there was insufficient evidence connecting defendant with the accident to warrant submission of the case to the jury.

3. That the trial court erred in instructing the jury with reference to the question of driving an automobile while under the influence of intoxicating liquor.

4. That the verdict of the jury was excessive.

Questions to be Determined.

First: In the civil action brought by plaintiff to secure a judgment for damages for the alleged wrongful death of her child, was it error for the trial court to admit evidence that a witness identified defendant, the day after the child was killed, while he was in a 'line-up' in the custody of the police?

This question is answered in the negative. The circumstances giving rise to the foregoing question are, briefly, as follows: Grace Martin testified that she was a waitress in a 'drive-in' where food and drinks were served; that on the date in question she was on duty 'outside' beginning at 6:00 P.M.; that within twenty to thirty minutes after she went on duty outside defendant drove in and ordered some beer, which she served him; that he was alone in the car; that ten or fifteen minutes after she served him the beer she noticed his car was gone; and that the 'drive-in' where she worked was a block or so north of the scene of the accident. The evidence further disclosed, without contradiction, that the automobile owned by defendant was picked up and taken to the police station on the following day.

A police officer was called as a witness by counsel fro plaintiff, and the following testimony was given in the course of his direct examination:

'Q. Did you show Miss Martin the 1941 Buick?

'Mr. Wormwood: I object to this, Miss Martin has testified.

'The Court: We will have to wait until she comes back.

'Mr. Bruno: If your Honor please, this witness can testify as to what he did.

'The Court: We will let him answer. Did you show her the 1941 Buick? The Witness: Yes, I did.

* * *

* * *

'Q. Did you have Miss Martin look at the defendant in this action on that day? A. I do not recall the date. I did have Miss Martin look at the defendant.

'Q. Under what circumstances?

'Mr. Wormwood: I object to all this, if the court please. I object to this questioning. The witness has testified.

'The Court: The only thing is we save time. He would be allowed to testify to this after she testified.

(Argument of counsel).

'The Court: He may answer.

'Mr. Wormwood: May the record show my objection to this entire line of questioning?

'The Court: Yes.

'Q. Under what circumstances did you have her look at the defendant? A. I arranged a police show-up of five or six men at the city jail.

'Mr. Wormwood: I object to that talk about the city jail show-up. That has nothing to do with a civil case and I ask for a mistrial.

'The Court: Objection overruled. He may answer.

'Q. You may answer. A. I stated I arranged a police show-up of five or six men, I do not recall the exact number. In this show-up there were two or three colored men along with one or two while men, and he was picked out as being on the Cowboy Inn lot on Sunday night, March 15th.

'Mr. Wormwood: I assume the court denied my motion for a mistrial?

'The Court: Yes.'

After the foregoing testimony by the police officer, the witness Grace Martin was recalled, and during the course of her continued examination she testified as follows:

'Q. Now, did you see Mr. Dawkins at any time after you served him the beer? A. You mean on Sunday?

'Q. Well, any time after you served him the beer. A. Yes, at the Police Building.

'Q. And when was that? A. When they had a line-up.

'Q. When they had a line-up?

'Mr. Wormwood: I object to this, as I did the other day, I think.

'The Court: Objection overruled and your exception noted, and it will not be necessary to make specific objections to all these questions.

'Q. The Judge said you may answer. A. What was the question?

'Q. Tell the jury the circumstances under which you saw Mr. Dawkins in the line-up. A. Well, they brought out these three men.

'Q. Where you were? A. They just asked us to point out whom we recognized, and I recognized Mr. Dawkins.

'Q. State whether or not you pointed him out at that time? A. I did.'

The point involved in the objection to the above-quoted testimony is stated by defendant's counsel as follows:

'The witness Martin, having stated that she knew the defendant by sight due to the fact that he had been stopping at the Cowboy Inn for many weeks and due to the fact that she had identified him in the court room, eliminated the necessity of having the witness Martin and the police officer then testify regarding the defendant being in a police line-up. The very words 'police line-up' carry with them a stigma, and who is to say how much harm wad done the defendant by allowing such testimony, such prejudicial testimony, to be presented to them? We submit that this error alone was, and is, sufficient to require a reversal of this case.'

Counsel for defendant further state, in argument:

'Our courts have been particularly zealous through the years in keeping out of the record, in a civil action, the fact that the defendant had been charged with a traffic violation or crime in the criminal courts, and also in keeping out all evidence pertaining to what occurred there.'

Our Court finds no merit in this argument. The fact that Miss Martin was able to, and did, identify defendant on the day following the fatal accident, was competent evidence for the jury's consideration, and had probative value in determining the credibility which the jury might give the identification made by her upon the trial of the case which took place sixteen months after the accident. There was no testimony concerning any prosecution of defendant for the violation of a municipal ordinance, and no reference was made to any case of a criminal or quasi criminal nature. The relevancy and competency of evidence cannot be entirely destroyed because the facts related happened to occur at a police station. Evidence which has probative value, and is in all respects competent, cannot be rendered inadmissible simply because it relates to an incident which took place in the presence of officers of the law in the discharge of their official duties. Facts within the knowledge of police officers, acquired by them at police headquarters in the discharge of their duties, can be established by their evidence in the trial of any issue, whether civil or criminal in nature, if the evidence otherwise is material and competent.

With reference to the argument that Miss Martin's identification, made on the day following the accident, should not have been admitted in evidence because she identified defendant in the court room upon the trial, we hold that the first identification was properly admitted in evidence. We find ample authority in the decided cases and in sound reasoning for reaching this conclusion. In Vol. 4, Wigmore on Evidence, (3d ed.) page 208, section 1130, we find the following:

'Ordinarily, when a witness is asked to identify the assailant, or thief, or other person who is the subject of his testimony, the witness' act of pointing out the accused (or other person), then and there in the courtroom, is of little testimonial force. After all that has intervened, it would seldom happen that the witness would not have come to believe in the person's identity. The failure to recognize would tell for the accused; but the affimative recognition might mean little against him.

'The psychology of the situation is practically the same as when Recent Contrivance is alleged. To corroborate the witness, therefore, it is entirely proper * * * to prove that at a former...