Highley v. People, 9046.

• Docket Nº: 9046.
• Citation: 65 Colo. 497, 177 P. 975
• Case Date: January 06, 1919
• Court: Supreme Court of Colorado

177 P. 975

65 Colo. 497

HIGHLEY
v.
PEOPLE.

No. 9046.

Supreme Court of Colorado, En Banc.

January 6, 1919

Error to Larimer County Court; Fred W. Stover, Judge.

Walter Highley was convicted of carrying intoxicating liquors into the state for the purpose of delivering them within the state for unlawful purposes, and he brings error. Reversed and remanded.

White, Teller, and Allen, JJ., dissenting in part.

[65 Colo. 498] L. D. Thomason, of Ft. Collins, for plaintiff in error.

Leslie E. Hubbard, Atty. Gen., and Ralph E. C. Kerwin, Asst. Atty. Gen., for the People.

HILL, C.J.

The plaintiff in error was convicted of carrying intoxicating liquors into this state for the purpose of delivering [177 P. 976] same within the state for unlawful purposes. Numerous errors are urged. The instruction given which requires serious consideration is No. 6, pertaining to a reasonable doubt. It does not follow any form heretofore approved by this court. It includes the following:

'You have no right to disbelieve as jurors if you believe as men. Your oath imposes on you no obligation to doubt where no doubt would exist if no oath had been administered.'

This instruction was given on May 26, 1916. In Sarkisian v. People, 56 Colo. 330, 138 P. 26, decided in January, 1914, three members of this court condemned this language, two others not considering it, one member not participating, which left only one who gave it approval in his dissenting opinion. It is true that quite similar language was reasoned out as harmless upon account of the other language used in McQueary v. People, 48 Colo. 214, 110 P. 210, 21 Ann.Cas. 560, but it was not commended in that case. The same reasoning, with a condemnation of the language used, will be found in Foster v. People, 56 Colo. 452, 139 P. 10, decided in January, 1914. The giving of this kind of an instruction was condemned in Van Wyk v. People, 45 Colo. 1, 99 P. 1009, decided at the September, 1908, term, wherein it was suggested that, as this court, in Minich v. People, 8 Colo. 440, 9 P. 4, had approved a particular form concerning reasonable doubt, it would recommend its use without further change. It might also be observed that in the Van Wyk Case the instruction considered included:

[65 Colo. 499] 'You are not at liberty to disbelieve as jurors if, from all the evidence, you believe as men.'

The words 'from all the evidence' are omitted from the instruction under consideration. This omission is one of the complaints here. Regardless of past condemnations of such instructions and recommendations that they be discontinued, the practice apparently has been, by some of the district attorneys and trial courts, to ignore the recommendations of this court concerning it, evidently because it has been possible, in some cases, to reason out that it was harmless error upon account of other language used.

The question which now presents itself is: Shall we ignore our repeated condemnation of this language and our previous suggestions that its use be discontinued and try again to reason out that the use of it is harmless error, even where, as here, the instruction goes farther than any given in the past. In Robinson v. State, 18 Wyo. 217, 106 P. 24, the judgment was reversed for the giving of this instruction. The same instruction, where it contained the language 'from all the evidence,' was condemned in People v. Johnson, 140 N.Y. 350, 35 N.E. 604, Siberry v. State, 133 Ind. 677, 33 N.E. 681, and Cross v. State, 132 Ind. 65, 31 N.E. 473. The criticism which we offer to it with the words 'from the evidence' omitted is that it tells each juror that he is not at liberty to disbelieve as a juror if he believes as a man. A juror might thus construe it as meaning that, if as a man and citizen, from sources outside the record, he believes the defendant guilty, or if that is his belief based on outside knowledge, or otherwise, then it was his duty to convict, even though under oath as a juror from the evidence he would not be thus justified. As said by the Wyoming court:

'A lack of evidence to prove such guilt cannot be supplied by what a juror knows or believes regardless of his oath. Under our procedure he is required to base his verdict solely upon the evidence and the law as given him by the court.'

This rule applies in this jurisdiction. The defendant, in the common parlance of the street, was [65 Colo. 500] charged with what is known as being a bootlegger. In a city the size of Ft. Collins the entire community might believe as men that he was guilty of the crime charged. They might base that belief upon sundry matters not disclosed by the record, even though there was no substantial testimony to convict, and when told that they had no right to disbelieve as jurors where they believed as men is to convey to them the impression that they had a right to convict the...