Wisdom v. People
| Decision Date | 16 March 1888 |
| Citation | 11 Colo. 170,17 P. 519 |
| Parties | WISDOM et al. v. PEOPLE. |
| Court | Colorado Supreme Court |
Commissioners' decision. Error to criminal court of Lake county.
Indictment for burglary against three defendants, Robert Wisdom, Charles Patten, and Walter Beal. Wisdom and Patten were convicted and they bring error.
N. Rollins and Taylor, Ashton & Taylor, for plaintiffs in error.
Alvin Marsh, Atty. Gen., for defendant in error.
Plaintiffs in error and one Walter Beal were jointly indicted for burglary. A severance was had as to Walter Beal and the plaintiffs in error were tried together and convicted. Twelve errors are assigned. The first and second relate to proceedings had before the commencement of the trial and are not relied on in the argument. The other errors will be considered in the order which counsel have argued them. On the trial Walter Beal was made a witness for the prosecution, and he testified that he told Joe Measures where the jewelry was that was taken. Thereupon he was asked if he went with Measures to show him where the jewelry was. This question was objected to, and the court permitted the witness to answer, and upon this ruling the third assignment is based. Joseph Measures was a witness for the prosecution, and, after testifying that Beal had acknowledged that he knew where the jewelry was, was asked what he did with Beal after such acknowledgment. This question was objected to, and the court permitted the witness to answer, and upon this ruling the sixth assignment is based. These assignments are argued together, and the objection to the questions asked is 'that the declarations, confessions, or admissions of one of two or more persons who are shown to have been engaged in a common unlawful purpose are not admissible in evidence against the others, if made after the completion of the unlawful purpose.' Neither of the questions asked called for an answer which could possibly come within the rule contended for by counsel, and the answers actually given were unobjectionable. Upon the cross-examination of Beal he stated that the first time he accused plaintiffs in error of being implicated in the robbery was after he was arrested and placed in jail, and that he made this first statement to Mr. Hall, who was his attorney. He was then asked what Mr. Hall said to him that caused him to implicate plaintiffs in error. This question was objected to on the ground that the statement was a privileged communication, and the objection was sustained by the court, and upon this ruling the fourth assignment is based. The fifth assignment is as follows: 'The court erred in refusing to permit defendants below to show that Mr. Hall had stated to the witness Beal that he had made arrangements with the district attorney to let the witness go if he would implicate and convict defendants below.' This evidence was objected to on same ground as the objection to the last question. The fourth and fifth assignments were considered together by counsel in their argument.
We do not think the objection urged against the admission of the testimony is well taken; but the proof, if relevant at all was relevant for the purpose of showing what inducements were at any time held out to the witness to get him to implicate others in the burglary with which he was connected, and if the exclusion of such proof at that time was error, the defendants by their subsequent action in objecting to the introduction of proof of the same matter are estopped from now urging such error. Upon the redirect examination of Beal, he was asked whether Hall held out any inducements to him to implicate the defendants. To this question the defendants objected, and the objection was sustained. The witness was then asked to state all that Hall said to him, and this question was objected to, and the objection sustained. The objection made to these questions by the defendants was that the matter was the same that the court had before ruled out. The defendant Robert Wisdom testified, in his own behalf, that on the evening of the 5th day of May he went, in company with John and Tom Robinson, to the pawn-office of Ben Davis for the purpose of borrowing money to get out of town; and John and Tom Robinson each testified that they went with Wisdom to the loan-office of Ben Davis on the evening of May 5th, and that Wisdom borrowed money there. Ben Davis testified that Wisdom, with two colored boys, was in his establishment on the evening of May 5th, in the neighborhood of 6 o'clock, and he was then asked whether Wisdom borrowed any money from him. This question was objected to by the district attorney, and the objection sustained, and upon this ruling the seventh assignment is based. Counsel for plaintiffs in error base their argument, in support of this assignment, upon the ground that the testimony offered was corroborative of facts testified to by defendant Wisdom and the Johnsons; but, if such facts were material and irrelevant, then it was not error to exclude further testimony of the same kind. The only material fact in the testimony of the Johnsons and the testimony of Davis related to the alibi attempted to be proved, and we fail to see how the excluded testimony of Davis had any bearing upon that question. The court gave the following instruction to the jury: 'An accomplice is a competent witness, and if the jury, weighing the probabilities of his evidence, think him worthy of belief, a conviction supported by such testimony alone is legal.' The ninth assignment is based upon the giving of this instruction. The defendants requested the court to instruct the jury as follows: 'The testimony of an accomplice in a crime is not sufficient on which to find a verdict of guilty, unless such testimony is corroborated in a material respect by the testimony of witnesses not connected with the alleged offense.' And defendants requested the court to further instruct the jury as follows: 'A conviction cannot be had upon the uncorroborated testimony...
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...to be the guilty party." Black's Law Dictionary 66 (5th ed. 1979). See Foster v. People, 56 Colo. 452, 139 P. 10 (1914); Wisdom v. People, 11 Colo. 170, 17 P. 519 (1887). An alibi defense essentially denies that the defendant committed the act charged, while an affirmative defense basically......
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