Miller v. People

Decision Date03 April 1933
Docket Number13231.
Citation22 P.2d 626,92 Colo. 481
CourtColorado Supreme Court

Error to District Court, Yuma County; H. E. Munson, Judge.

Archie Miller was convicted of the larceny of a calf, and he brings error.

Judgment affirmed.

BOUCK and HILLIARD, JJ., dissenting.

Foster Cline, of Denver, for plaintiff in error.

Clarence L. Ireland, Atty. Gen., and Wallace S. Porth, Asst. Atty Gen., for the People.

BUTLER Justice.

Archie Miller was charged with the larceny of one calf. He was found guilty and was sentenced to imprisonment in the penitentiary. He seeks a reversal of the sentence.

One E M. Odell testified, in substance, as follows: Odell and Miller entered into an agreement, whereby Odell was to steal at a farm designated by Miller, two calves and deliver them to Miller at a certain sand and gravel pit located off the road and about three miles from Wray. The pit was on land owned by Miller's father, and was directly across the road from the house in which Miller and his father lived. Miller was to pay Odell for the calves. If either was arrested, he was to take the blame. Odell stole the calves, put them on a trailer (also stolen by him), took them to the appointed place, arriving at about 1 o'clock at night, turned off his automobile lights, and thereupon Odell, Miller, and a man whom we will call A (who, according to the evidence, was an ex-convict) transferred the two calves to Miller's truck, and Odell received the money that Miller had promised to pay. At Miller's request, Odell signed a receipt for the money. Odell then drove from the pit toward the main highway and was arrested by the sheriff, and immediately thereafter the sheriff arrested Miller.

The sheriff testified that on the night in question he followed an automobile truck driven by Miller; that Miller drove past the gravel pit; that the sheriff and his deputies stopped at the gravel pit 'to look the place over' and sent their automobile back to town: that in about half an hour or longer Miller returned, drove off the road, stopped at the gravel pit, and turned off the truck lights; that at about 1 o'clock at night the witness saw Odell and A transfer the calves to Miller's truck; and that he then arrested both Odell and Miller.

Miller testified substantially as follows: Miller agreed to buy two calves from Odell. Miller wanted the calves delivered at the home of his father, but Odell insisted upon delivering them at the sand and gravel pit. At about 10 o'clock at night Miller started for the pit, but 'inadvertently' drove a considerable distance past it. He returned and went to the pit. Odell was not there. Miller turned off his lights and went to sleep. At about 1:15 o'clock Odell and A arrived with the calves, and Odell, Miller, and A transferred them to Miller's truck, and Miller paid the money he promised to pay. When Miller was about to leave the gravel pit with the calves, he was arrested. Miller denied that he agreed to be a party to the theft of the calves, and denied that he knew that the calves were stolen. He said that he had often worked days and nights in his business, and did not think the time or place of delivery unusual, in view of Odell's statements to him.

1. The most important question raised is whether or not the court erred in denying the application for a new trial, based upon newly-discovered evidence. Such applications are addressed to the sound discretion of the trial court, and, unless there has been an abuse of that discretion, an appellate court will not interfere with the action of the trial court. Colorado Springs & I. R. Co. v. Fogelsong, 42 Colo. 341, 94 P. 356, 359; Blass v. People, 79 Colo. 555, 247 P. 177. Was the court's discretion abused in the case at bar?

In support of the motion for a new trial there were presented to the court several affidavits. Some of them related to unimportant statements said to have been made by A, who did not testify; others related to a supposed 'frameup,' a matter referred to in another part of this opinion; and one related to an alleged separation of the jury. We shall confine our attention to those only that merit consideration. The affidavit of Ray Bell was to the effect that after the sentence Odell made to the witness a statement substantially as follows: That Odell had agreed to sell the calves in question to Miller; that Miller had nothing to do with stealing them, but was merely going to buy them; that the reason Odell had fixed up the story he told on the witness stand was because he had an understanding that, if he would place the blame on Miller, he (Odell) was to be made a trusty and would receive a light sentence if Miller were convicted. Miller's mother made an affidavit to the effect that after Miller was sentenced she was in the jail lobby and heard Miller ask Odell why he had made so many false statements at the trial, and that Odell said that 'they' told him that if he would swear that he took one calf and that Miller took the other 'they' would make him a trusty and let him off easy, and that he 'agreed to go through with it.' Miller, in his affidavit, swore that after he was sentenced Odell told him that he (Odell) had to tell the story he told upon the witness stand, because 'he was promised to be made a trusty and would get off easy' if he connected Miller with the cattle stealing. Foster Cline, who was employed in the case by Miller's father after sentence was pronounced, made an affidavit to the effect that he had interviewed each of the persons who made the foregoing affidavits, and that, in the event of a new trial, all of them would testify that Odell made the statements appearing in the affidavits.

According to the affidavits, Odell contradicted, or repudiated, the statements made by him under oath. In effect, he recanted, but not under the solemnity of an oath. In Blass v. People, supra, we quoted with approval the following statement in the opinion in People v. Shilitano, 218 N.Y. 161, 112 N.E. 733, 736, L.R.A. 1916F, 1044: 'There is no form of proof so unreliable as recanting testimony. In the popular mind it is often regarded as of great importance. Those experienced in the administration of the criminal law know well its untrustworthy character.' In Ives v. People, 86 Colo. 141, 158, 278 P. 792, we again quoted that statement with approval. In Quinn v. People, 60 Colo. 217, 152 P. 148, a witness for the people recanted, and we upheld the action of the trial court in denying the application for a new trial.

The newly discovered evidence is subject to another weakness that merits consideration. Odell made no affidavit, and there is no showing that at a second trial his testimony would be any different from that given by him at the first trial. At a second trial the affiants would not, in the first instance, be permitted to testify that Odell had made the statements appearing in the affidavits. Such testimony would be inadmissible, unless Odell testified as he did Before, and then it would be admissible, not as substantive evidence, but only by way of impeachment of Odell's credibility by showing contradictory statements made by him out of court. In Christ v. People, 3 Colo. 394, 396, we said: 'It is a well-settled rule that newly-discovered evidence going only to impeach the credit or character of a witness is not sufficient ground for a new trial. * * * The exceptions to this rule are rare.' In Beals v. Cone, 27 Colo. 473, 493, 62 P. 948, 956, 83 Am.St.Rep. 92, we said: 'Newly-discovered evidence which only goes to impeach the credit or character of a witness is not sufficient ground for a new trial, except it is clear that such impeachment would have resulted in a different verdict.' In Colorado Springs & I. R. Co. v. Fogelsong, supra, we said that, ordinarily to warrant the granting of a new trial on the ground of newly discovered evidence, one of the requirements is 'that it does not merely tend to impeach or contradict the former evidence, except it may be in cases where it clearly appears that it would probably change the result in case of a new trial.' And in Edwards v. People, 73 Colo. 377, 395, 215 P. 855, 862, where the question of cumulative evidence was involved, we said: 'Courts will see to it that there is not a miscarriage of justice, and are sometimes indulgent in their requirements as to a showing of newly discovered evidence, if they are impressed with the conviction that there has been a miscarriage of justice, even if the newly discovered evidence be incidentally impeaching in its nature and merely cumulative, when satisfied that there is probable cause that the result would be different as the result of such testimony.' It may be noted that the trial court's denial of the application for a new trial in that case was upheld. The newly discovered evidence in the present case is not 'incidentally,' but directly, impeaching; it could be used for no purpose other than that of impeachment. We do not take the view that there has been a miscarriage of justice in this case.

In considering whether or not the trial court abused its discretion in denying the motion for a new trial on the ground of newly discovered evidence, the affidavits should be considered in connection with the testimony given at the trial, in order to determine whether, in the event of a new trial, the newly discovered evidence probably would change the result. Miller admitted at the trial that he had agreed with Odell in advance to buy the calves. Bell's affidavit was to the effect that Odell stated that Miller was going to buy the calves, and had nothing to do with stealing them. It was not stated that, at the time the agreement was made, it was not contemplated by both parties that Odell was to steal the calves. If one...

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