Ware v. People

• Decision Date: 06 October 1924
• Docket Number: 10807.
• Citation: 76 Colo. 38,230 P. 123
• Parties: WARE v. PEOPLE.
• Court: Colorado Supreme Court

230 P. 123

76 Colo. 38

WARE v. PEOPLE.

No. 10807.

Supreme Court of Colorado, En Banc.

October 6, 1924

Error to District Court, City and County of Denver; Geo. F Dunklee, Judge.

Calloway Ware was convicted of second degree murder, and he brings error.

Reversed and remanded.

John M Glover, of Denver, for plaintiff in error.

Wayne Williams, Atty. Gen., and Harold Clark Thompson, Asst. Atty Gen., for the People.

SHEAFOR, J.

Plaintiff in error, defendant below, and so designated here, was convicted of murder of the second degree, and sentenced to a term in the penitentiary of not less than ten years nor more than eleven years. He brings the case here for review. It is assigned as error that the court erred in allowing the people to call, lead, cross-examine, and impeach witnesses Kenny Peach, and Cowns. It appears from the record that on February 20, 1923, at the hour of ten o'clock p. m., in the washroom of the Denver & Rio Grande railroad shops, in the city of Denver, the defendant shot and killed Oscar Sibley. Both the defendant and the deceased were colored, and were employed at the time of the homicide at the Denver & Rio Grande shops in Denver. The only eyewitnesses of the homicide were Joseph Peach and Willie Cowns.

Andrew J. Reynolds, deputy district attorney, was called as a witness by the people and testified, inter alia, that he took statements the next day after the shooting from the witnesses Peach and Cowns; that the statements were taken down by a stenographer; that they were afterwards written out on a typewriter, and signed by the parties. He further testified as to the questions which had been propounded to the witnesses in the statements and their answers thereto. The statements made by these witnesses, testified to by Reynolds differed materially from the evidence given by them upon the trial, and Reynolds' testimony was introduced for the purpose of impeaching them.

The question here presented seems never to have been determined in this jurisdiction. It is conceded that as a general rule a party cannot directly impeach his own witness, but it is claimed by the people that there are important exceptions to this rule, and that the instant case falls within one of the exceptions. On this question, the cases are far from being in harmony.

In 28 R.C.L. 644, it is said:

'And in a number of jurisdictions it is held that a party who is thus taken by surprise on the examination of a witness called by him may not only interrogate the witness as to previous inconsistent statements made by him, but if the witness denies having made such statements may prove the same to impeach him. On the other hand, in many of the states the rule forbidding a party to impeach his own witness is deemed to preclude the admission of proof by him of previous inconsistent statements by the witness to avert the effect of unexpectedly unfavorable testimony given by him.'

Among the cases holding that a party can contradict his own witness by proof of his prior statements, are the following: Deering v. Cunningham, 63 Kan. 174, 65 P. 263, 54 L.R.A. 410; Murphy v. State, 120 Md. 229, 87 A. 811, Ann.Cas. 1914B, 1117; Selover v. Bryant, 54 Minn. 434, 56 N.W. 58, 21 L.R.A. 418, 40 Am.St.Rep. 349; Lindquist v. Dickson, 98 Minn. 369, 107 N.W. 958, 6 L.R.A. (N. S.) 727, 8 Ann.Cas. 1024; State v. D'Adame, 84 N. J. Law, 386, 86 A. 414, Ann.Cas. 1914B, 1109. The following cases, among others, hold the contrary doctrine: Hickory v. United States, 151 U.S. 303, 14 S.Ct. 334, 38 L.Ed. 170; Chicago City R. Co. v. Gregory, 221 Ill. 591, 77 N.E. 1112, 6 Ann.Cas. 220; Rhodes v. State, 128 Ind. 189, 27 N.E. 866, 25 Am.St.Rep. 429; Hall v. Manson, 99 Iowa 698, 68 N.W. 922, 34 L.R.A. 207; Erdman v. State, 90 Neb. 642, 134 N.W. 258, Ann.Cas. 1913B, 577.

We think the weight of authority, and the sounder and better rule, is that a party cannot contradict a witness, voluntarily called by him, by proof of his prior statements. But it is urged that the prosecution was compelled to call the two eyewitnesses, and therefore should be allowed to impeach them. We are aware that there are cases holding that where the law requires or the court orders a party to produce a witness, he may impeach him in the manner suggested. In such cases, the witnesses are not voluntarily called and their truthfulness and integrity are not vouched for by the party producing them. United States v. Hall (D. C.) 44 F. 864; Thompson v. Owen, 174 Ill. 229, 51 N.E. 1046, 45 L.R.A. 682, and others.

But the prosecuting officer is not obliged to call a witness whose testimony he knows, or has reason to believe will be adverse; he is not required to produce all witnesses whose names are indorsed on the information; he is not obliged to call all witnesses to the crime; he is not obliged to call the only eyewitnesses to the crime, and he may try his case in his own way and use his discretion as to what witnesses he will call, so long as he acts in good faith. Keller v. State, 123 Ind. 110, 23 N.E. 1138, 18 Am.St.Rep. 318; State v. Middleham, 62 Iowa 150, 17 N.W. 446; State v. David, 131 Mo. 380, 33 S.W. 28; Dillon v. State, 137 Wis. 655, 119 N.W. 352, 16 Ann.Cas. 913; Chicago City Railway Co. v. Gregory, 221 Ill. 591, 77 N.E. 1112, 6 Ann.Cas. 220; People v. Johnson, 13 Cal.App. 776, 110 P. 965; State v. Campbell, 73 Kan. 688, 85 P. 784, 9 L.R.A. (N. S.) 533, 9 Ann.Cas. 1203.

In Dillon v. State, supra, the court said:

'The rule requiring the state to call eyewitnesses in a homicide case became well established in the English system of jurisprudence at a time when a defendant himself was denied the right to testify or to call witnesses in his own behalf, and when he was even denied the right of counsel. The rule no doubt was adopted to mitigate the rigor and harshness of the situation in which an individual, bound to defend himself in a case involving capital punishment, was placed by the English system of jurisprudence as it was. While the reason for the rule has ceased to exist, some courts still adhere to the ancient doctrine. People v. Deitz, 86 Mich. 419, 49 N.W. 296; Territory v. Hanna, 5 Mont. 248, 5 P. 252.

'* * * To adopt it is to require the state to call a witness to establish its case whom the prosecuting attorney may believe is dishonest, or has been corrupted, and is willing to commit perjury to aid the accused, either from motives of friendship, interest, or relationship. * * * Prosecutions in criminal cases should be carried on without malice and without desire or intent on the part of the prosecution to secure a conviction where the evidence does not warrant it.

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