Sabon v. People
| Decision Date | 04 April 1960 |
| Docket Number | No. 19063,19063 |
| Citation | 350 P.2d 576,142 Colo. 323 |
| Parties | Fred J. SABON, Plaintiff in Error, v. PEOPLE of Colorado, Defendant in Error. |
| Court | Colorado Supreme Court |
Isaac Mellman, Gerald N. Mellman, Bernard H. Thorn, Denver, for plaintiff in error
Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., John E. Bush, Asst. Atty. Gen., for defendant in error.
Adjudication of mental illness by a jury in the county court, resulting in commitment of Fred J. Sabon to the Colorado State Hospital at Pueblo, is the judgment sought to be reversed by this writ of error.
In preliminary proceedings instituted as a result of a complaint by Sabon's wife, a medical commission, appointed according to the statute, made findings that Sabon was mentally ill. He thereupon demanded jury trial as provided in C.R.S. '53, 71-1-13 (Cum.Supp.1957), and it is to alleged errors in that trial that our attention is directed.
The only points in the summary of argument of plaintiff in error which we deem necessary to discuss are:
1. That the court erred in giving its instruction No. 2 to the jury.
2. That the court erred in permitting Sabon's wife to testify in the proceedings after objection had been made on the grounds of privilege.
In attempting to instruct the jury as provided in C.R.S. '53 71-1-13 (Cum.Supp.1957) did the court commit error?
This question is answered in the affirmative.
The portion of the statute concerned in the first question upon which the erroneous instruction was predicated reads as follows:
* * *'
Instruction No. 2 given by the court reads:
'The Court instructs you that the Colorado Statutes provide that the Medical Commission's report of January 5, 1959 can only be overcome by a preponderance of evidence, but also that the City must prove by a preponderance of all of the evidence in the case that Fred John Sabon is mentally ill.' (Emphasis supplied.)
The instruction as given by the court was contradictory, is not a clear statement of the law involved, and unduly restricts Sabon in challenging the findings of the medical commission. It places upon him the burden of overcoming the commission's report by a preponderance of the evidence, and at the same time asserts that the city must prove his mental illness by a preponderance of all the evidence. The two cannot be reconciled. The statute provides that the jury trial should be conducted as are other civil cases. Therefore, the burden is upon the city to establish the mental illness of Sabon by a preponderance of the evidence. The burden of proof cannot be shifted. American Insurance Company v. Naylor, 101 Colo. 34, 70 P.2d 349. We do not construe the statute as requiring the respondent to produce any evidence whatsoever. The phrase in the statute reading 'the findings of the medical commission may be overcome by a preponderance of the evidence' is redundant and is merely a reiteration of a fundamental proposition of law which exists without the aid of the statute. The instruction, however, by using the words 'can only' was so restrictive that it told the jury the respondent Sabon was limited to overcoming the findings of the medical commission by evidence sufficient to outweigh the findings in the commission's report. Thus the instruction gives no recognition to the fact that affirmative evidence is not the only way in which a report such as this medical report can be overcome. The respondent might overcome it by showing it to be questionable or unreliable or predicated upon incompetent evidence or false statements. He might overcome it by demonstrating it to be the result of error or prejudice. Cross examination of the persons who participated in the preliminary medical hearing might elicit admissions or might reveal conduct that would entirely discredit the report. The respondent would, therefore, not be required to produce any evidence or call any witnesses on his own behalf. Because he did not offer any evidence, the effect of the instruction was to make the report conclusive.
We hold, therefore, that the instruction, in substituting 'can only' for 'may', was not in the language of the statute, and being unduly restrictive, was erroneous.
Was it a violation of the respondent's rights to permit the wife to testify in the proceedings?
This question is answered in the negative.
The pertinent statute (C.R.S. '53, 153-1-7) relied upon by Sabon reads:
'A husband shall not be examined for or against his wife without her consent, nor a wife for or against her husband without his consent; nor during the marriage or afterward shall either be examined without the consent of the other as to any communications made by one to the other during the marriage; but this exception does not apply to a civil action or proceeding by one against the other, nor to a criminal action or proceeding for a crime committed by one against the other.'
The action in the county court can best be described as a special statutory proceeding, and is neither a criminal case nor a civil action. Kendall v. People, 126 Colo. 573, 252 P.2d 91; Hultquist v. People, 77 Colo. 310, 236 P. 995.
It is in no sense an adversary proceeding, and we do not deem the privilege statute to have any application to the inquiry into the mental health of the respondent. The testimony of the wife was neither for nor against her husband. The only matters testified to by the wife were as to threats made by him to her and his conduct toward her. The purpose of the testimony was to show the mental condition of the husband as illustrated by his acts. On a similar question involving privileged communication between attorney and client, this court commented in Hawkyard v. People, 115 Colo. 35...
To continue reading
Request your trial
-
Stephenson, In re
...Baltimore City Criminal Court (1972), 407 U.S. 355, 92 S.Ct. 2091, 32 L.Ed.2d 791 (preponderance of the evidence); and Sabon v. People (1960), 142 Colo. 323, 350 P.2d 576 (preponderance of the evidence). Contra In re Ballay (1973), 157 U.S.App.D.C. 59, 482 F.2d 648; Suzuki v. Quisenberry (D......
-
Young v. Colorado Nat. Bank of Denver
...of his client in a suit between the latter and another. Cases like Hawkyard v. People, 115 Colo. 35, 169 P.2d 178, and Sabon v. People, 142 Colo. 323, 350 P.2d 576, are distinguishable from this case. In the Hawkyard case the attorney for the alleged incompetent testified and informed the c......
-
Gilford v. People, No. 99SC79.
...91, 93 (1952). Rather, they are special proceedings conducted according to statutorily defined procedures. See Sabon v. People, 142 Colo. 323, 327-28, 350 P.2d 576, 579 (1960); Hultquist v. People, 77 Colo. 310, 315, 236 P. 995, 997 (1925). Since commitment proceedings are not designed to a......
-
Marriage of Bozarth, In re
...the child's best interests, I would hold that the spousal privilege as to observations does not apply in this case. In Sabon v. People, 142 Colo. 323, 350 P.2d 576 (1960), this court held that the spousal privilege statute did not apply to an adjudication of mental illness because the proce......
-
Attorney-client Privilege-the Colorado Law
...v. People, 115 Colo. 35, 169 P.2d 178 (1946); cf., Young v. Colorado National Bank, 148 Colo. 104, 365 P.2d 701 (1961); Sabon v. People, 142 Colo. 323, 350 P.2d 576 (1960). However, a recent case involving physician-patient privilege draws these earlier holdings into question. People v. Tay......
-
The Spousal Privileges
...(dependency and neglect proceedings). 13. See Bozarth, supra, note 6 at 1352. 14. CRS § 13-90-107(1)(a)(II). 15. See Sabon v. People, 350 P.2d 576, 578 (Colo. 16. Burlington N. R.R. Co. v. Hood, 802 P.2d 458, 465 (Colo. 1995). 17. Id. 18. Id. 19. See Cummings v. People, 785 P.2d 920, 926 (C......