Power v. People

• Decision Date: 01 February 1892
• Citation: 17 Colo. 178,28 P. 1121
• Parties: POWER v. PEOPLE.
• Court: Colorado Supreme Court

28 P. 1121

17 Colo. 178

POWER v. PEOPLE.

Supreme Court of Colorado

February 1, 1892

Error to district court, Montrose county.

Indictment against Mark Power for murder. Verdict of guilty, and judgment thereon. Defendant brings error. Affirmed.

Thomas J. Black, James B. Belford, and S. H. Baker, for plaintiff in error.

Joseph H. Maupin, Atty. Gen., and H. H Babb, for the People.

ELLIOTT J.

The assignments of error will be considered as presented in the briefs of counsel.

1. The refusal of defendant's application for a change of venue is assigned for error. The defendant applied for a change of venue, alleging that the inhabitants of Montrose county were prejudiced against him. His petition was duly verified, and supported by affidavits. Counter-affidavits were also filed on behalf of the people controverting the matters alleged in defendant's petition and affidavits. This procedure was in accordance with the act of April 10, 1885, (Sess. Laws, p. 385.) Section 4 of the act of 1885, supra, provides that an application for a change of venue on the ground of prejudice of the inhabitants shall be granted or refused by the court or judge upon the consideration of the petition and all the affidavits. In many cases the trial court will have advantages, not possessed by a court of review, for determining the necessity or propriety of granting a change of venue upon such ground; and the court should exercise a sound discretion in passing upon such an application. It is only in case of a manifest abuse of such discretion that its decision will be reversed by this court. State v. Billings, 77 Iowa 417, 42 N.W. 456. The affidavits filed in behalf of the defendant showed that certain newspapers of general circulation in Montrose county had denounced the defendant as guilty of murder in severe terms; that, in consequence of such publications, the inhabitants of the county had become prejudiced against the defendant, and had assembled in large numbers near the jail for the purpose of doing violence to him shortly after the homicide; and that such demonstrations of violence had received the countenance and approval of some of the leading citizens and certain officials of the county. In behalf of the people, however, it was shown by affidavits that only the inhabitants of a certain part of the county had been prejudiced against the defendant, and that from other parts an unprejudiced jury might be obtained. It was further shown that one newspaper, at least, published in the county, had published a guarded account of the homicide, and had deprecated any resort to violence against the accused, asking in temperate and commendable language for a suspension of judgment until the testimony should be heard, and concluding with remarks such as: 'Every man should have a fair trial;' 'Sensible people will withhold judgment until they learn the facts in the case.' Undoubtedly newspaper articles containing criminal accusations produce considerable effect upon public opinion, and thus occasion much difficulty in securing impartial jurors; but, as a rule, citizens who are fit to try criminal cases will not allow previous opinions, based upon unofficial reports, to control their judgment against the sworn evidence in a case. This is the theory of our laws at the present time. 2 Mills, Ann. St. § 2592. The duty is devolved upon the trial judge to determine whether or not a person who has formed an opinion concerning the guilt or innocence of the accused is qualified to serve as a juror. See Babcock v. People, 13 Colo. 515, 22 P. 817, and cases there cited. If a publication be too violent or denunciatory, it is not likely to have as much influence upon thoughtful minds as a more temperate article. Intelligent citizens understand that verdicts should be based upon opinions formed only upon sworn evidence given by reliable witnesses, evidence which has stood the test of cross-examination, and, perhaps, adverse testimony, and not upon ex parte statements. In this case we cannot say that the court erred in denying the application for a change of venue.

2. It is assigned for error that the court refused to allow certain witnesses for the prosecution, on cross-examination, to answer questions concerning their connection with a mob. The witness Brown was asked if he did not go to Montrose with a view to help men take defendant out of the jail and hang him. An objection to this question by the state's attorney was sustained by the court, and the ruling was excepted to. The question, not being objected to by the defendant himself, was proper at the time it was asked for the purpose of testing the animus of the witness, and thus affecting, if possible, his credit with the jury. 1 Greenl. Ev. § 450; 1 Whart. Ev. § 532 et seq. But the witness Brown did not testify to the shooting, nor to any part of the res gestae. His testimony related wholly to troubles between Baer and the Power family about an irrigating ditch, previous to the shooting. The purpose of such testimony was to show that there had been a quarrel between the parties, from which the malice of the defendant might be inferred. That there had been such a quarrel was not denied by any witness. Both Power and his sister testified to its existence. Their testimony showed even greater animosity than the testimony of Brown indicated. It follows from this that there was no real occasion to attack Brown's credibility, since the truth of all that was material in his testimony was established by defendant's evidence. The ruling of the court was, therefore, altogether harmless. Similar questions were asked the witness Johnson on cross-examination. In response Johnson testified that the defendant, Power, was a perfect stranger to him; that he had no more feeling against Power than he had against any other stranger; that he had not taken any interest in working up any feeling against the defendant; that he had not counseled taking the matter out of the hands of the courts; that he had not knowingly been with a number of men that came to Montrose for the purpose of taking defendant out of jail, though he admitted that he might have been with men who were there for that purpose. Further cross-examination upon this point was refused by the court. Considering the discretion necessarily vested in trial courts in respect to the examination of witnesses, we cannot say that the refusal was error. Opportunity for cross-examination upon every proper subject must, of course, be allowed; but the extent to which such examination may be carried in any particular matter may be controlled within reasonable limits. In this case the witness appears to have answered in a straightforward manner, and the examination was carried far enough to lay the foundation for the impeaching testimony which was subsequently offered and permitted without objection. Thus full opportunity was given to show the animus of the witness. Johnson did not testify to seeing the shooting. He testified that he reached Baer while he was lying by the ditch, and examined his person and clothing, and found no arms upon him. In this Johnson was corroborated by Mrs. Singledecker, who was first to reach the wounded man, and who saw the examination made. There was no testimony that Baer had any fire-arms upon or about his person after the shooting.

3. It is assigned for error that 'the evidence did not establish the death of Charles A. Baer;' and it is urged in argument that the evidence does not show the date when his death occurred. The evidence shows that on July 2, 1890, late in the afternoon, Mr. and Mrs. Singledecker heard the report of a gun at a distance of 135 steps from their home in Montrose county, Colo., and, hastening to the spot, found Mr Baer, wounded in the right leg, and in an unconscious condition. Mr. McLain, a physician and surgeon, who was called to attend Mr. Baer a few hours after the shooting, testified that he found a large gunshot wound in Baer's right thigh, caused by a large bullet, ranging upward, coming out back, and doing great damage; that there was no pulse in the wrist; that he gave the patient some stimulants to revive him; that, upon examination, he found large quantities of black blood coming from the wound, and that, upon pressing upon the leg, greenish blood would come out; that, after giving the stimulants, the patient began to throw himself around, and complain of distress in his stomach; that one-eighth of a grain of morphine was administered, and shortly after that the patient became unconscious. The doctor further testified that from the nature of the wound he had no doubt but that it was the bullet wound that caused the death of Baer; that he made a post mortem examination, and satisfied himself that the bullet was the cause of the man's death. The doctor further testified: 'I found the large femoral vein cut right off. About...