Tourtelotte v. Brown

• Decision Date: 26 February 1894
• Citation: 36 P. 73,4 Colo.App. 377
• Parties: TOURTELOTTE v. BROWN.
• Court: Colorado Court of Appeals

36 P. 73

4 Colo.App. 377

TOURTELOTTE v. BROWN.

Court of Appeals of Colorado

February 26, 1894

Error to district court, Arapahoe county.

Action by Monroe L. Tourtelotte against Joseph M. Brown administrator of Francina Hawkins, to recover on a note. There was judgment for defendant, and plaintiff brings error. Reversed.

Thomson J., dissenting.

The facts appear in the following statement by REED, J.:

This case was formerly before this court, all the questions and issues involved were settled except one. It was alleged in the answer that the note in controversy was a forgery, was not executed by Francina Hawkins. Issue was taken, and the defense relied upon. A large amount of evidence was introduced in an attempt to establish the forgery. No finding as to the question of forgery was made by the jury. The court submitted to the jury the following question for a special finding: "Was the name of Francina Hawkins, at the end of the note, forged?" to which was answered, "Jury cannot agree." A general verdict was rendered for the defendant (defendant in error in this case). The case was brought by writ of error to this court. The jury having failed to find, and disagreeing, upon an important issue specially submitted, was held to vitiate the verdict, and render the judgment void. For that reason, as well as some others, the judgment was reversed, and the cause remanded. See Tourtelotte v. Brown, 1 Colo.App. 408, 29 P. 130. Upon a retrial the only issue to be tried was the question of forgery. The case was tried to a jury, resulting in a verdict: "We, the jury, find the issues herein joined for the defendant." Judgment was entered upon the verdict, and the case again brought to this court by writ of error. The other facts necessary to a full understanding of the case will be found in the opinion of the court.

L.C. Rockwell, W.T. Hughes, and G.Q. Richmond, for plaintiff in error.

Hartzell & Patterson and Browne, Putnam & Preston, for defendant in error.

REED J.

A brief statement in regard to the subject-matter of the controversy and relations of the interested parties will suffice to explain this case. In July, 1887, Mrs. Francina Hawkins was an aged widow of over 70 years, possessed of considerable property,--the amount is not shown. Her heirs were her daughters, Maggie A., wife of Nathan S. Hurd, and Nancy, the wife of H.A.E. Pickard, both of mature age. There was also one A.E. Mansfield, whom, though he does not appear to have been legally adopted, was raised by the Hawkinses from an infant, and was recognized as, or claimed to be, one of the family. Some time prior to the date given, Pickard and family removed to Denver. The old lady conveyed to her daughter, the wife of Pickard, a residence in West Denver, of the admitted value of some $7,000, and also furnished the family money, more or less, as the exigencies of the occasions required. Mrs. Hurd and her husband, who had received nothing from the mother, felt aggrieved at the apparent partiality of the mother, and, fearing an inequitable division of the estate in the interest of the Pickards, attempted to counteract it. As claimed by Hurd, the old lady was by him invited to his house, the error of her ways pointed out, and the necessity of doing equal justice impressed upon her; and she, recognizing the justice of the claim, and not wishing to offend the Pickards, executed the note in question to equalize affairs between her daughters. The execution and existence of the note remained a secret until after Mrs. Hawkins' death, when it was presented for allowance against the estate, out of which has grown the present litigation. The Pickard family and Mansfield resisted the claim, as it would materially affect their interests in the distribution of the estate, and asserted the note to be a forgery. Like all other controversies of this kind, where quite an amount of money is involved, the contest degenerated into a personal one, developing great intensity and acrimony. That this should be the case with Hurd is naturally to be expected, for, although the crime of forgery is not, by the proceedings, directly charged upon him, and no criminal conviction could follow, all the testimony tends to show that, if forgery, it was perpetrated by him, and he is morally, if not legally, convicted of the crime.

At the opening of the trial to the jury the following stipulation was made and entered of record: "And thereupon counsel for the respective parties agreed that counsel for the respondent might read from the cross-examination of the witness Hurd as given upon a former trial of the cause, and as contained in the bill of exceptions made up from a former trial of this cause, wherein the same party was claimant, said cross-examination to be read subject to objections by counsel for the claimant, the same as if the witness Hurd was upon the stand and being orally cross-examined; said cross-examination as read to be considered so far as the same should be admitted as the cross-examination of the witness at this trial, the same as though given at this time in response to oral cross-examination."

The following are the errors assigned requiring examination: "(1) That the verdict of the jury is contrary to law. (2) That the verdict is not supported by the requisite testimony, or any testimony corresponding with the allegations, and confined to the point in issue." "(4) That incompetent and prejudicial evidence was admitted at the trial. (5) That the court erred in failing to give plaintiff's instruction number two, as follows: 'The court instructs the jury, defendant has read to you as evidence a portion of the testimony given by Nathan S. Hurd upon the trial of this case. You are to take what he says regarding the drawing of the note, and the circumstances surrounding the giving of it, as the facts on which you are to act, unless there is other evidence which countervails them, and shows they are other and different from what Mr. Hurd stated them to be. That when a person produces a witness in his behalf he represents such witness as a truthful and credible person, entitled to be believed. And the fact that Mr. Hurd may feel less friendly to the party who calls him than to the other side does not change the rule of the law.' (6) That the court erred in giving the last instruction, to the effect that the jury had a right to consider the conduct and deportment of a witness upon the stand, and his apparent bias or prejudice; because there was no evidence to predicate this instruction upon. (7) That the court erred in admitting the testimony of witness Stipes, and that the subsequent striking out of this testimony did not cure the error."

The second error assigned raises the question of the sufficiency of the evidence to support the finding of the jury. It is ably argued that it is insufficient. Ordinarily, it is the well-settled rule of courts of last resort that questions of fact found by a jury, when supported by competent testimony, will not be disturbed, even though, in the opinion of the court, the preponderance seems to be the other way. This is the rule in civil cases, but in this there are peculiar circumstances. Though in the nature of a civil suit, it is at least quasi criminal, and imposes upon the one person who was interested, and the only one who had the opportunity, all the results of the crime of forgery save the penalty. The case is also complicated by the peculiar stipulation in regard to evidence made by counsel. Why, with only one issue to be tried, viz. the genuineness of the signature, with all the witnesses in court or easily accessible, such a stipulation became necessary, and counsel allowed to read such parts as they might select from testimony taken at the former trial, where two or three important issues were tried, is hard to determine. That it opened wide the door for the admission of irrelevant and impertinent evidence and consequent errors, will at once become apparent. Under the circumstances, the form of the verdict is peculiar: "We, the jury, find the issues herein joined for the defendant." There was but one issue. The form of the verdict suggests a very grave question,--whether or not the jury were misled by the introduction and reading of the evidence taken on the former trial, and considered it a duty to determine all the issues involved in the former case. The form of the verdict, and the use of the plural, "issues," would seem to indicate that more than one issue had been considered and determined. The language is very suggestive of the misapprehension. By the first instruction the jury were instructed that there was but one question to be determined, viz. the genuineness of the signature. This instruction seems to have been entirely disregarded.

To sustain the genuineness of the signature, Nathan S. Hurd was called, and testified as follows: "Q. Mr. Hurd, what is your full name? A. Nathan S. Hurd. Q. What position do you occupy under the state government? A. I am deputy superintendent of insurance, in charge of the insurance department of the state. Q. Did you know Francina Hawkins in her lifetime? A. I did. Q. Look at that signature at the bottom of that note, and state whether or not you saw Francina Hawkins sign that note [showing witness the note in controversy in this suit]. A. That is the signature of Francina Hawkins, and I saw her sign it." No oral cross-examination was had of the witness. Counsel for the defendant, preferring to rely upon the cross-examination had at the former trial, proceeded to read from the former bill of exceptions at considerable length. All that admitted appears to have been pertinent and proper cross-examination. No important fact or evidence was selected, except the fact that the witness testified that...