Osborn v. People

• Decision Date: 12 December 1927
• Docket Number: 11903.
• Citation: 83 Colo. 4,262 P. 892
• Parties: OSBORN et al. v. PEOPLE.
• Court: Colorado Supreme Court

262 P. 892

83 Colo. 4

OSBORN et al. v. PEOPLE.

No. 11903.

Supreme Court of Colorado, En Banc.

December 12, 1927

Rehearing Denied Jan. 3, 1928.

Error to District Court, Grand County; Chas. E. Herrick, Judge.

Arthur Osborn and another were convicted of first degree murder, and they bring error.

Affirmed.

Robert Emmet Lee and Edward L. Compton, both of Denver, for plaintiffs in error.

William L. Boatright, Atty. Gen., and William W. Gaunt, Asst. Atty Gen., for the People.

BUTLER J.

The plaintiffs in error, Arthur Osborn and Jasper Raymond Noakes were found guilty of murder in the first degree and sentenced to death.

Fred N Selak resided in a cabin near Grand Lake, in Grand county. On July 25, 1926, Nair, his employee, sought him at his cabin, but did not find him. The condition of the cabin aroused the suspicions of Nair, who reported to the sheriff that Selak was missing. A search was begun. Osborn and Noakes were taken into custody by the sheriff. Osborn was 22 years old at the time; Noakes, 20. They are cousins, and lived with Osborn's father in the neighborhood of Selak's cabin. Noakes and Osborn were brought to Denver. Both of them confessed. The trial was held in Hot Sulphur Springs March 7, 8, and 9, 1927. At 1:30 p. m. on the 7th, before the jury was selected, the defendants filed a joint sworn application, stating that their defense would be 'insanity or mental irresponsibility,' asking to be permitted to defend as poor persons, and requesting the court to order process for the attendance of 'some competent alienist to be designated by the court.' The court granted the application, and ordered that Dr. Howell T. Pershing, of Denver, be called at the expense of the people, at $100 per day and expenses, as a witness for the defendants. A recess was taken until the next morning to enable Dr. Pershing to be present during the taking of the testimony. At the conclusion of the people's case, at 4:27 p. m. on the 8th, the court took a recess to 9 a. m. the next day to enable the defendants' attorneys to confer with Dr. Pershing. The next morning, having been advised by the doctor that in his opinion the defendants were not insane, that they knew the difference between right and wrong, and had the intellectual capacity to choose between them, and to do the right and resist the wrong, the defendants applied for an order for the attendance of Dr. Leo V. Tepley, of Denver, as an expert witness in their behalf on the question of insanity. This application was denied.

Three assignments of error are argued: (1) The court's refusal to order, at the expense of the people, the attendance of Dr. Tepley as an expert witness in behalf of the defendants; (2) the alleged failure of the people's witnesses to identify the defendants; and (3) the admission of the confessions.

1. Years ago, in England, defendants in criminal cases were not, even at their own expense, entitled to process to compel the attendance of witnesses in their behalf. It was because of this injustice, and to prevent a recurrence of the practice, that our Bill of Rights (Const. art. 2, § 16) provides that in criminal prosecutions the accused 'shall' have the right to have process to compel the attendance of witnesses in his behalf. That provision is mandatory. But to have such process at the expense of the public is another matter. Section 7121, C. L., provides:

'Whenever any person, indicted in a court of the state of Colorado, shall make affidavit setting forth that there are witnesses whose evidence is material to his defense; that he cannot proceed to trial without them; that they are within the judicial district in which the court is held, or within one hundred miles of the place of trial; and that he is not possessed of sufficient means and is actually unable to pay the fees of such witnesses, the court in term, or the judge thereof in vacation, if it appears to said court or the judge thereof that the evidence of such witnesses would be material in the trial of the cause, may order that such witnesses be subpoenaed, if found within the limits aforesaid. In such case the costs incurred by the process and the fees of the witnesses shall be paid in the same manner that similar costs and fees are paid in case of witnesses subpoenaed in behalf of the people.'

The statute says 'may' order, not 'shall' order. In Nesteroff v. People, 71 Colo. 208, 210, 205 P. 531, 532, Mr. Justice Burke, speaking for the court, said:

'Counsel for defendant admit that the issuance of the order as to this witness rested in the sound discretion of the court. The record clearly shows that discretion to have been properly exercised.'

In a note to Pittman v. State, 51 Fla. 94, 41 So. 385, reported in 8 L.R.A. (N. S.) at page 509, the annotator says:

'It seems to be well settled that the constitutional right of defendant in a criminal case to compulsory process to procure the attendance of witnesses in his behalf does not include the right of having them brought into court at public expense'--citing Bishop, New Crim. Proc. § 959b; 3 Rice Ev. § 188; and a number of cases.

Applications for the procurement of witnesses in behalf of defendants, at the cost of the people, should be made at the earliest opportunity, and not withheld until the case is actually called for trial. Pittman v. State, 51 Fla. 94, 41 So. 385, 8 L.R.A. (N. S.) 509. See, also, State v. Thornton, 49 La. Ann. 1007, 22 So. 315. In the present case, the defendants made no application whatever until several months after their arrest, and just before the jury was selected. The first application was granted, and Dr. Pershing was called at the expense of the people to examine the defendants and testify in their behalf. Not until after the state closed its case did the defendants make the application, now in question, to have Dr. Tepley summoned. Assuming that in the present case the court had discretion in the matter, it did not abuse that discretion in refusing to grant the application. However, the court has such discretion only when the witness sought to be subpoenaed is within 100 miles of the place of trial. If the witness is beyond that distance, the court has no power to order the witness to be subpoenaed at the expense of the people. In the application, sworn to by both defendants, they sought to procure the attendance of Dr. Leo V. Tepley, 'of Denver, Colorado.' In support of the application, Mr. Lee, one of the attorneys for the defendants, testified to there being at that time 'no other means of transportation from Denver to Hot Sulphur Springs, except by way of the railroad, the automobile roads being all closed.' The court took judicial notice that the distance between Denver and Hot Sulphur Springs by railroad is over 100 miles. It was not disputed then, and it is not disputed now, that the distance by railroad is over 100 miles. It is claimed, however, that the distance should be measured by a direct line between the two places, which is less than 100 miles. In determining how the distance is to be measured, regard must be had to the purpose of the statute. Section 7907, C. L., provides that witnesses shall be allowed mileage fees of 15 cents per mile 'for each mile actually and necessarily traveled in going from his place of residence to place named in subpoena.' It seems clear that the purpose that the Legislature had in providing a limitation of 100 miles (section 7121, supra) was to limit the amount of expense for mileage, when a defendant obtains compulsory process at the expense of the people. Such expense is determined by the number of miles necessarily to be traveled by the witness. It follows that the distance is to be measured, not in a direct line, but by the route that the witness is necessarily required to travel. In Jennings v. Menaugh (C. C.) 118 F. 612, the circuit court held that whether a witness lives at a greater distance than 100 miles from the place of holding court, so as to authorize the taking of his deposition, is to be determined by taking the ordinary, usual, and shortest route of public travel, and not by a mathematically straight line between the place of residence and the place of trial. See, also, In re Fostor, 44 Vt. 570; Smith v. Ingraham, 7 Cow. (N.Y.) 419. In State ex rel. v. Mostad, 34 N.D. 330, 158 N.W. 349, under a statute with reference to school accommodations 'within a distance of 2 1/2 miles of' the homes of the children, it was held that the distance is to be measured by the roads that are actually opened and passable. In the present case, there was no other means of transportation except by railroad, the automobile roads being all closed.

There was no evidence of the distance between Denver and Hot Sulphur Springs by railroad, and the contention is made that the court cannot take judicial notice of the distance. McConnell v. Schultz, 23 Colo.App. 194, 128 P. 876, is cited in support of the contention. In that case, Mr. Justice King said that the court is 'not required' to take judicial notice of 'the distance from Cripple Creek to Alamosa by the sinuous route between those two places.' That is true. 'There are numerous topics, near the line of doubt in their feature of notoriety, of which the court may, but not must, take notice.' 5 Wigmore, Evid. § 2568. In Johnson v. Atlantic C. L. C. Railroad Co., 140 N.C. 582 53 S.E. 362, the court took judicial notice of the distance by railroad between Warsaw and Clinton, N.C. In Mutual Ben. L. Ins. Co. v. Robison, 58 F. 723, 7 C.C.A. 444, 22 L.R.A. 325, the court took judicial notice that the distance between Dubuque, Iowa, and Asheville, N. C., exceeds 100 miles. In Pettit v. State, 135 Ind. 393, 412, 34 N.E. 1118, the court took judicial notice that the distance between East Portland, Or., and...