Wickham v. People

• Decision Date: 04 November 1907
• Citation: 93 P. 478,41 Colo. 345
• Parties: WICKHAM v. PEOPLE.
• Court: Colorado Supreme Court

93 P. 478

41 Colo. 345

WICKHAM v. PEOPLE.

Supreme Court of Colorado, En Banc.

November 4, 1907

Rehearing Denied Feb. 3, 1908.

Error to District Court, City and County of Denver; E. E. Armour Judge.

Peter Wickham was convicted of murder in the first degree, and he brings error. Affirmed.

Bailey and Caswell, JJ., dissenting.

Morrison & De Soto and Morrison & Bailey, for plaintiff in error.

William H. Dickson, Atty. Gen., and Samuel H. Thompson Jr., Asst Atty. Gen., for the People.

MAXWELL J.

Under an information charging murder, plaintiff in error was convicted of murder of the first degree, and sentenced to the penitentiary for life.

1. The court overruled a motion to quash the information, based upon the ground that the information was not supported by the affidavit of any person having knowledge of the commission of the offense, as required by section 1432h, 3 Mills' Ann St. Rev. Supp., the pertinent part of which is: 'BUT IF A PRELIMINARY EXAMINATION HAS NOT beEn had or when upon such examination the accused has been discharged, or when the affidavit or complaint upon which the examination has been held has not been delivered to the clerk of the proper court, the district attorney may, upon affidavit of any person who has knowledge of the commission of an offense, and who is a competent witness to testify in the case, setting forth the offense and the name of the person or persons charged with the commission thereof, upon being furnished with the names of the witnesses for the prosecution, by leave of court first had, file an information, and process shall forthwith issue thereon.' The affidavit was in conformity with the requirements of the statute. Where this is true, this court has held that an information cannot be attacked upon the ground that the party who verified it did not have personal knowledge of the commission of the offense charged. Holt v. People, 23 Colo. 1, 45 P. 374; Bergdahl v. People, 27 Colo. 302, 61 P. 228; Barr v. People, 30 Colo. 522, 71 P. 392; Overland C. M. Co. v. People, 32 Colo. 263, 75 P. 924, 105 Am.St.Rep. 74.

2. Over the objection of plaintiff in error, the day proceeding the day the case was set for trial the district attorney by order of court was permitted to indorse upon the information the names of additional witnesses for the people. This is claimed to be error upon the ground that the witnesses whose names were so indorsed were known to the district attorney at and before the time the information was filed. Section 1432b, 3 Mills' Ann. St. Rev. Supp., referring to the duty of the district attorney in this behalf, provides: 'He shall indorse thereon the names of such witnesses as are known to him at the time of filing the same, and shall also indorse upon such information the names of such other witnesses as may become known to him before the trial at such time as the court may, by rule or otherwise, prescribe; but this shall not preclude the calling of witnesses whose names or the materiality of whose testimony are first learned by the district attorney upon the trial.' Three classes of witnesses are designated by the statute--those known to the district attorney at the time of filing the information, those who shall become known before the trial, and those whose names or the materiality of whose testimony are first learned upon the trial. That this statute is mandatory cannot be doubted. It is the duty of the district attorney to comply with it. Justice to the accused demands such compliance, so that he may be fully advised of those who will confront him as witnesses at the trial. No application for a continuance was made, and no showing of surprise or prejudice was made, by plaintiff in error, by reason of the action complained of, and there is no such contention here. Plaintiff in error may have been fully advised as to what the witnesses would testify to, their character, and all other matters desirable for him to know. Under this condition we cannot say that the action of the court was reversible error. Boykin v. People, 22 Colo. 496, 498, 45 P. 419.

3. It is urged that error was committed in allowing the district attorney to ask a witness leading questions. It appears that the witness had made a previous statement to the district attorney, a portion of which he was attempting to conceal, to the surprise of the district attorney. The questions to which objections were made were propounded for the purpose of refreshing the recollection of the witness. In Babcock v. People, 13 Colo. 515, 520, 22 P. 817, 819, in discussing this subject, it is said: 'Under such circumstances, where a party is really taken by surprise at the conduct of his own witness, it is in the discretion, and is often the duty, of the trial court to allow a party to put leading questions to his own witness, as the only means of preventing an unwilling witness from concealing the truth by unsatisfactory or evasive answers; and in extreme cases, where it is apparent that a witness is giving testimony contrary to the reasonable expectation of the party calling him, such party should be allowed to cross-examine such witness for the purpose of refreshing his recollection, with the view of modifying his testimony or of revealing his real animus in the case.' In Hickory v. U.S., 151 U.S. 303, 14 S.Ct. 334, 38 L.Ed. 170, the court said: 'When a party is taken by surprise by the evidence of his witness, the latter may be interrogated as to inconsistent statements previously made by him for the purpose of refreshing his recollection and inducing him to correct his testimony.' The court committed no error in overruling the objections to the questions.

4. At the close of all the testimony, upon his own motion, the court withdrew from the consideration of the jury testimony relating to the reputation of the deceased for peace and good order, stating that such testimony was received upon the supposition that it would be rendered material and competent by testimony offered later in the case, and that such later testimony was not forthcoming. Davidson v. People, 4 Colo. 145, and Babcock v. People, 13 Colo. 515, 22 P. 817, are cited in support of this assignment of error. Neither case cited supports the contention of counsel. In both evidence of uncommunicated threats made by the deceased against the accused immediately before the killing was excluded. This was held to be error. In the case at bar there is no evidence in the record to justify the admission of testimony as to the reputation of deceased for peace and good order. There was no error in excluding the testimony under consideration. The above ruling was made by the court orally. It was objected to upon this ground. It does not come within the rule which applies to oral instructions. An instruction is thus defined: 'An instruction is an exposition of the principles of law applicable to a case, or to some branch or phase of a case, which the jury are bound to apply in order to render the verdict establishing the rights of the parties in accordance with the facts proved.' 11 Ency. P. & P. 56. The ruling was one which had been reserved upon the question of the admissibility of certain testimony, which had been admitted upon the statement of counsel that testimony to be subsequently offered would render it material. To hold that a ruling upon the admission or rejection of testimony. made during the progress of a trial, must be reduced to writing, would be an innovation. This is the ultimate result of counsels' contention. There is no merit in the assignment of error.

5. Plaintiff in error requested a number of instructions, many if not all of which, were refused. Counsel for plaintiff in error, in their printed brief and upon oral argument, discussed only those assignments of error based upon the refusal of the court to give requested instructions relative to 'cooling time,' and we shall confine our examination to such assignments. A discussion of his assignment of error and others which are to follow necessitates a statement of the evidence in the case. Between 8 and 9 o'clock of the evening of April 21, 1906, Wickham, plaintiff in error, having put a gun in his hip pocket, left a hotel at Elyria in this city, and went to the house of Mrs. Erickson, where he met his wife, who was temporarily stopping with Mrs. Erickson, having recently left the County Hospital. Some conversation took place between Wickham, his wife, Mrs. Erickson, and others present, relating to remarks which Tom Darling, the deceased, is said to have made to Wickham's wife to the effect that Wickham had had improper relations with another woman. Wickham's wife said to plaintiff in error that she was only fooling in what she told him, and that he ought to have no feeling against Darling. Wickham took his gun out of his hip pocket, made threats against Darling, put the gun into his coat pocket, and said that he was going out to hunt Darling. Mrs. Wickham, Mrs. Erickson, and others tried to dissuade him from having any trouble with Darling, and Mrs. Erickson told her daughters to hunt up Darling, warn him that Wickham was after him, and tell him to get away. It appears that an hour or more elapsed from the time when Wickham came to Mrs. Erickson's house and when he left. Wickham left the house, and within a few feet thereof met Darling coming towards the house with three others, accosted him, charged him with telling stories to his wife, struck him with his left fist, and knocked him down. Darling arose, and was knocked down by Wickham three times in succession. Wickham testified that he knocked Darling down once, and that he (Darling) fell down twice. Five witnesses for the prosecution testified that Wickham knocked Darling down three times, and that when Darling arose the third...