Jaynes v. People

• Decision Date: 04 January 1909
• Citation: 44 Colo. 535,99 P. 325
• Parties: JAYNES v. PEOPLE.
• Court: Colorado Supreme Court

99 P. 325

44 Colo. 535

JAYNES v. PEOPLE.

Supreme Court of Colorado

January 4, 1909

Error to District Court, Mesa County; Sprigg Shackleford, Judge.

Chester E. Jaynes was convicted of killing by poison a horse of another, and he brings error. Reversed and remanded.

Witness' attention must be called to time, place, and person involved in impeaching statement outside court.

Logan & Greer and Wheeler & Weiser, for plaintiff in error.

Wm. H Dickson, Atty. Gen., and S. H. Thompson, Jr., Asst. Atty Gen., for the People.

GABBERT J.

Plaintiff in error, defendant below, was convicted of killing by poison a horse of the value of $125, the property of one O. W Hoskins, and sentenced to a term in the penitentiary. As evidence in chief the people introduced the testimony of one Watson, who testified the defendant had confessed to him that he poisoned the horse in question; that the poison used was cyanide of potassium; that he had obtained it from the Colorado Chemical & Spray Manufacturing Company; and that he had signed a check to pay for it. The defendant, as a witness in his own behalf, denied having made this confession. Griffith, manager of this company, was then called as a witness for the accused, and asked whether or not his company, in the transaction of its business, used cyanide of potassium. To this question an objection was interposed, and sustained. He was then interrogated as to whether or not he ever had this poison in his laboratory or in the establishment of which he was manager. An objection to this question was also interposed and sustained. A confession in a criminal case, unless it is an admission by plea, is merely evidence to be considered by the jury in determining the guilt of the accused. For this reason evidence that a defendant had confessed the crime for which he is being tried may be rebutted the same as any other. Hence it is competent for him to show by independent facts that any statement claimed to have been made by him in the confession could not have been true. 12 Cyc. 484; 6 Enc. 586; Commonwealth v. Howe, 9 Gray (Mass.) 110; Commonwealth v. Howe, 2 Allen (Mass.) 153; People v. Fox, 50 Hun, 604, 3 N.Y.S. 359; State v. Blodgett (Or.) 92 P. 820; 3 Enc. of Evidence, 353.

In Commonwealth v. Howe, 9 Gray (Mass.) 110, the defendant was indicted for breaking and entering a shop and stealing shoe stock therein. The people produced a witness who testified to confessions made to his by the defendant. According to this confession, the defendant had told the witness that he and one George Parmenter broke into and entered the shop and stole the stock, as alleged in the indictment, and that the defendant sold his share of the stock so stolen to one Emory Hobbs. The defendant then offered to show that Parmenter did not break into the shop and aid in stealing the stock, and that Howe did not sell to Cobb any portion of the stock or any other shoe stock. The trial court ruled that this testimony was incompetent. The Supreme Court in passing upon this ruling stated: 'The confessions of which evidence was given embraced in substance three facts: First, that the defendant broke and entered a shop; second, that George Parmenter was with him in so breaking and entering; third, that the defendant sold the stolen stock to Emory Hobbs. The defendant offered evidence to show that the confessions were not true; that the facts did not occur as in the confessions stated. This evidence was rejected.

We think it should have been admitted, that the defendant was not to be concluded by any confessions made, much less by the statements of witnesses that confessions had been made. It was competent to show that the facts could not have taken place as alleged or did not.' The evidence further discloses that at the time of the alleged confession of the defendant he was intoxicated, and the court concludes by saying: 'Especially is this the case where there is evidence leaving it doubtful whether the defendant was in a condition to understand what he was confessing.' This condition of the defendant, however, could not change the principle upon which it was held admissible, namely, that it was competent for the purpose of showing that the defendant had not made the statement attributed to him by the confession. In Commonwealth v. Howe, 2 Allen (Mass.) 153, the defendant was indicted for larceny. His confession, which was introduced, tended to prove that, soon after the larceny was committed, he was in possession of a part of the stolen property, and gave the same to his mother. He offered to prove by his mother that she never had the stolen property. This evidence was rejected, and the Supreme Court held that it was competent testimony, and should have been admitted because it tended to disprove that he had confessed the crime. In People v. Fox, supra, the defendant made an affidavit that he and four others committed the robbery for which he was on trial by entering the house of the victim and binding him. The defendant offered to prove that none of the four persons mentioned in his affidavit were at the place of the crime at the time therein stated. This was rejected. In considering this ruling the court said: 'Now, it is quite correct to say that the confession may be false in every other particular, and yet it may be true that defendant participated in the robbery, but the question here is whether the defendant may not give evidence tending to disprove an alleged fact of which the people have given proof against him. Certainly, when one side gives evidence tending to prove a fact, the other side may give evidence to the contrary. * * * If the defendant had made a confession that he alone went to Plank's and tied him and his boy, and robbed the house, such a confession, under the other testimony, would have received no credit; but he makes a confession of a transaction not improbable on its face, and evidence is offered tending to show that statements in that confession are not true, and these are such statements, furthermore, that, if they are not true, then the truth of the confession becomes doubtful.' It is true in this case that stress is laid upon the fact that the statements which the defendant sought to disprove would render the truth of his confession doubtful if such statements were not true. But that circumstance only goes to the question of the degree of discredit which would be cast upon his confession had he been permitted to introduce testimony tending to establish the fact that the four persons named in his confession were not with him at the time the crime was committed.

In the case at bar the defendant had denied the confession attributed to him by the testimony of Watson. Whether or not he had made the confession was the important question. Watson testified that the defendant told him he had procured the poison used from the company of which Griffith was the manager. If the defendant had been permitted to show facts from which it could be inferred that his alleged statement to Watson as to where he had secured the poison was not true, and could not be true, that was a circumstance proper for the jury to consider in determining whether or not he had confessed the crime for which he was being tried. The court erred in sustaining the objections to the questions propounded to the witness Griffith. The confession above referred to is said to have been made on the 8th of May, 1906. After the conclusion of the testimony on behalf of the defendant, who, as above stated, denied having made the confession in question, the people were permitted, over his objection, to introduce the testimony of one Hyatt, who testified regarding a confession of the defendant made three days later. Error is assigned to this ruling upon the ground that the testimony of Hyatt was not admissible for the purpose of rebutting any testimony given on behalf of the defendant. Conceding, but not deciding, that it was not proper as rebuttal, it was competent as evidence in chief. Ordinarily evidence in chief on behalf of the people should be offered when the case on their behalf is being made; but the trial judge is vested with sound discretion in determining the order of proof, and this discretion is not subject to review unless it appears to have been abused to the prejudice of the defendant. No showing of prejudice appears.

The defendant sought to impeach the testimony of the witness Watson by testimony of another witness (Smith) tending to prove that Watson had made statements to him to the effect that the prosecution was 'a put up job.' This testimony was objected to upon the ground that the proper foundation had not been laid. In order to impeach a witness in this way who is not a party to the action, the proper foundation must be laid. Nutter v. O'Donnell, 6 Colo. 253; Ryan v. People, 21 Colo. 119, 40 P. 775; Mullin v. McKim, 22 Colo. 468, 45 P. 416. For this purpose it is necessary to ask the witness whom it is sought to impeach if he made the statement which it is claimed he did, and, in order that he may have a fair opportunity to understand all the circumstances and explain such statement, his attention must be directed to the time, place, and person to whom or in whose presence the statement was made.

This rule, however, is to be given a practical application, and it is sufficient if the time, place, person, and substance of the statement are designated with such a degree of certainty that the witness will clearly understand the matter about which he is being interrogated and not be misled. 3 Jones on Ev. § 849; 2 Elliott on Ev. § 974; Mayer v. Appeal, 13 Ill.App. 87; Rockwell v. Brown, 36 N.Y. 207; 1 Wharton, Ev. § 555; Bennett v. O'Byrne, 23 Ind. 604; Nelson v. Iverson, 24 Ala. 9, 60 Am.Dec. 442.

The only reason urged...