Kelly v. People
| Decision Date | 06 April 1892 |
| Citation | 29 P. 805,17 Colo. 130 |
| Parties | KELLY v. PEOPLE. |
| Court | Colorado Supreme Court |
Error to district court, El Paso county.
Indictment against Ed Kelly for murder and manslaughter. Verdict of guilty of murder in the second degree, and sentenced thereon to the penitentiary for 26 years. Defendant brings error. Affirmed.
Colburn & Dudley, for plaintiff in error.
Joseph H. Maupin, Atty. Gen., and H. B Babb, for the People.
The assignments of error will be noticed as presented by the briefs of counsel.
1. On the trial it was objected in behalf of defendant that one Leonard Jackson, a witness for the prosecution, should not be allowed to testify on the ground that his name was not given in the list of witnesses indorsed upon the indictment, and because he had not been placed under the rule excluding witnesses from the court room during the trial. It appears that notice was given before the jury was sworn that Jackson would be called as a witness, but no application was made by defendant for further time to prepare for trial on that account. If timely application, accompanied by a showing of the supposed necessity for such further time, had been made it might have been granted. This not having been done, the objection to the witness testifying was without merit. Wilson v. People, 3 Colo. 329; Minich v. People, 8 Colo. 445, 9 P. 4, and cases cited. The examination of witnesses out of the presence and hearing of each other is sometimes a valuable aid to the discovery of truth and the furtherance of justice. The exclusion of witnesses from the court room during the trial is a matter resting in the sound judicial discretion of the trial court. Jackson was sheriff of the county. His testimony did not relate to the res gestae of the homicide. It does not appear that the court abused its discretion in permitting him to testify, notwithstanding he had been present during the trial. 1 Thomp. Trials, § 275 et seq.
2. The entire testimony of the witness Jackson related to an alleged escape by the defendant from the county jail while he was in the custody of the witness as sheriff. Some of the matters thus testified to appeared to be within the personal knowledge of the witness, while other matters were stated upon information and belief. After the cross-examination had proceeded at some length, counsel for defendant moved to strike out all the testimony of the witness given on information and belief, without otherwise designating the testimony so given. Such testimony had been elicited in part by the questions propounded upon cross-examination. The court denied the motion, presumably upon the ground that it was not sufficiently specific. The court, however, admonished the witness not to testify to what had been told him. From the whole examination it appears that the jury were well advised by the court as to what portion of Jackson's testimony was competent and what was incompetent; at least, they were as well advised as they would have been if defendant's motion to strike out had been sustained without specific modification. Under the circumstances, considering the nature and subject-matter of the testimony, it is clear that the jury were not misled, nor the defendant injured, by any improper testimony given by the witness. 1 Thomp. Trials, § 719 et seq.
3. The first count in the indictment was for murder; the second for manslaughter. As murder includes manslaughter, the second count was unnecessary, though it did not vitiate the indictment. The district attorney was at liberty to proceed to trial upon both counts of the indictment at the same time; and he could not properly be required to elect upon which count he would rely, so long as it appeared from the evidence that the two counts related to the same transaction. 1 Mills' Ann. St. § 1452. In considering what was said in Roberts v. People, 11 Colo. 215, 17 P. 637, about compelling the prosecutor to elect, the distinction between different counts and different transactions must be kept in mind. See Bish. Crim. Proc. cc. 32, 33, particularly sections 449 and 459; also Packer v. People, 8 Colo. 361, 8 P. 564.
4. In a lengthy instruction explaining the term 'reasonable doubt' the court indicated that the jury 'must not search for a doubt.' The instruction was excepted to on the trial, but it does not appear that the objectionable language was then pointed out. It is now urged that the language above quoted was calculated to lead the jury to think that 'they were not to make full and searching inquiry into the avidence to ascertain whether it was so insufficient that upon a fair consideration of the same a reasonable doubt might be based thereupon.' If the language objected to stood alone, it might be misleading, though, strictly speaking, the jury, in their consideration of the evidence, should search primarily for the truth, rather than for doubts. If, in searching for the truth, substantial doubts of the defendant's guilt should arise from the evidence, or from the want of evidence, such doubts should prevail in favor of the accused, unless, upon a fair consideration of all the evidence, such doubts should disappear. But the language objected to does not stand alone. In immediate connection therewith it appears that the jury were also plainly charged to the effect that the burden of proof was upon the people to establish by the evidence, beyond all reasonable doubt, every material fact necessary to constitute the defendant's guilt; and also that a reasonable doubt must be such a doubt as would naturally arise in the mind of a reasonable man upon a review of all the evidence in the case; that it means a serious, substantial, well-founded doubt, and not a mere possibility of a doubt; that it is such a doubt as, in the important transactions of life, would cause a reasonable and prudent man to hesitate and pause; and that when the jury can say, after carefully and impartially considering all the evidence in the case, that they have an abiding conviction of the truth of the charge, then they are in law satisfied beyond a reasonable doubt. The charge certainly could not have led the jury to believe that they were not to give the evidence a thorough consideration for the purpose of...
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