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This section provides that: "In every indict-, curred, and upon the sidewalk in front therement for perjury or subornation of perjury of, the said A. F. Meyers handed to any one it shall be sufficient to set forth the substance a pistol or revolver of any kind, saying at of the offense charged upon the defendant, the time, "Take this.'” And further avers and before what court or authority the oath that the plaintiff in error "did depose and of affirmation was taken, averring such court swear, amongst other things, in substance, or authority to have had full power to admin

that, as the said A. F. Meyers came ister the same, together with the proper aver- out of the door with the said J. H. Cremar, ment or averments to falsify the matter or the said J. W. Thompson saw the said A. F. matters wherein the perjury is assigned,” Meyers hand to someone a blue-barreled etc. It will be observed that by the provi- pistol, saying at the time, "Take this;'” and sions of this section it is sufficient to aver in negatives the truth of this statement. We the information that the court or authority cannot see any force in the contention of before which the oath was taken had full counsel that these allegations do not suffipower to administer the same. This section ciently charge that the plaintiff in error is substantially the same as St. 23 Geo. II. c. swore falsely “in a matter material to the 11. Under that statute the English decisions issue or point in question.” On the contrary, are that it is only necessary to state the we think, under the rule announced in the substance of the offense, the name of the foregoing authorities, these averments sufficourt, and aver the court's authority to ad- ciently charge that the false testimony was minister the oath. To the same effect are in respect to a matter material in the action the decisions in this country under similar in which it was given. Under these allegastatutes. Lavey v. Reg., 17 Q. B. 496; Rex tions evidence was admissible to show in v. Callanan, 6 Barn. & C. 102; Reg. v. Dun- what manner the testimony given by the ning, L. R. 1 Crown Cas. 290; 2 Chit. Cr. Law, plaintiff in error became and was material 507; Rex v. Dowlin, 5 Term R. 311; Peo- upon the trial of the Cremar case. The eviple v. Phelps, 5 Wend. 10; Halleck v. State, dence introduced for this purpose was, in 11 Ohio, 400; State v. Maxwell, 28 La. Ann. effect, that Cremar was charged with the 361; People v. Greenwell, 5 Utah, 108, 13 crime of murder for killing one Meyers. It Pac. 89; Masterson v. State, 144 Ind. 240, 43 appeared that as an officer he did the shootN. E. 138; Maynard v. People, 135 Ill. 416, ing in attempting to arrest Meyers. The ste25 N. E. 740; State v. Green, 100 N. C. 419, nographer who took the notes of the evi5 S. E. 422. While it is true that the infor- dence testified that upon the trial he heard mation does not contain an express averment the testimony given by Cremar, and that he that the district court of El Paso county had testified, in substance, that the reason of his jurisdiction of the case in which the alleged | firing the shot was that Meyers resisted arfalse testimony was given, it does aver that rest, and struck him several times, and finalupon the trial of a certain criminal case, of ly got him by one hand, and reached around which that court prima facie had cognizance, behind, as if to pull a pistol, and that he the plaintiff in error was duly sworn as a was fearful of his own life at the time he witness by the deputy clerk, and that he had fired the shot. It was also shown by this sufficient authority to administer the oath. witness that one W. H. Ryan was sworn as We think, therefore, that in this particular a witness, and testified that immediately the information not only conforms to the re- before the shooting by Cremar he saw the quirements of the statute, but by necessary deceased, Meyers, pull from his hip pocket implication states that the proceeding in a revolver, and hold it up. It was also which the oath was administered was one shown by the same witness that the plaintiff over which the district court had jurisdiction. in error testified that he saw Meyers and the Nor is the information defective because of officer when they came out of the building, the failure to set forth how, or in what way, and saw Meyers hand a blue-barreled pistol the evidence alleged to be false was material to some one, and say, “Here, take this.” As to the issue. It is well settled that it is suffi. was said in Dilcher v. State, supra: “A witcient if its materiality appears either from ness may be guilty of perjury not only by the facts alleged or by direct averment. 2 swearing corruptly and falsely to the fact Bish. Cr. Proc. $ 915; Williams v. State, 68 which is immediately in issue, but also to Ala. 531; Dilcher v. State, 39 Ohio St. 130; any material circumstance which legitimatePeople v. Brilliant, 58 Cal. 214; Gandy v. ly tends to prove or disprove such fact, or State, 24 Neb. 717, 40 N. W. 302; 16 Enc. Pl. to any circumstance which has the effect to & Prac. p. 343, and cases cited in note 1. strengthen and corroborate the testimony

The information avers that "at and upon upon the main fact." It requires no arguthe trial of the issue so joined between the ment to demonstrate that the testimony of parties aforesaid it then and there became plaintiff in error tended to corroborate the and was a material question whether, upon theory of the defense, and, if believed by the evening of August 11, 1897, after the the jury, would necessarily influence their shooting of one A. F. Meyers by the said determination as to whether or not the homiJ. H. Cremar, and while the said J. H. Cre- cide was committed by Cremar under a reamar was leading the said A. F. Meyers from sonable apprehension that his life was in the store in which the said shooting had oc- danger at the time he fired the shot.

We have examined the errors assigned oath, was an inadvertent error on the part of upon the admission and rejection of testi- the court; and the sentence quoted, standing mony, and are unable to see wherein the by itself, would have the misleading effect testimony objected to was not admissible, claimed by counsel. But we think that the or that there was any error in the exclusion instruction, taken as a whole, does not conof that which was rejected. The twelfth and vey that idea. It expressly states that the thirteenth assignments of error challenge th evidence of one wit ess as to the falsity of ruling of the court below refusing instruc- the evidence upon which perjury is assigned tions 1 and 3 asked by plaintiff in error. We is not sufficient; and concludes by informing think the court committed no error in refus- the jury that it is for them to determine ing these instructions. While the rule stated whether the corroborating circumstances are in instruction No. 1 is correct, it was fully sufficient to justify a verdict of guilty. And, expressed in instruction No. 9 as given by when considered in connection with the fact the court. The objection to No. 3 is that that the people did not rely upon the oath it included a direction to the jury to acquit of one witness and corroborating circumstandefendant unless, among other things, the ces to show the falsity of the statement, but people had proven beyond a reasonable upon the evidence of four witnesses, it did doubt that the district court of El Paso pot mislead the jury. county had jurisdiction over the case being The next error relied on is the giving of intried, and in which the oath was adminis- struction No. 8, which is substantially in tered. From the record in the former case the language of the information, because it introduced in evidence by the people, it was leaves to the jury the question of the maclearly shown that the court had jurisdiction teriality of the alleged false testimony. That of that case; and there was no attempt on on a trial for perjury the question of the mathe part of plaintiff in error to show the teriality of the testimony is one of law for contrary. If it be conceded that it is within the court is well settled, and in this particuthe province of a jury to determine the ques- lar the instruction as given was objectionable. tion of jurisdiction,-a question which we do As we have seen from an examination of the not now decide,-nevertheless a submission testimony, the evidence of plaintiff in error of that question under the evidence in this was material, and the district court would case was improper, since it tended to confuse have been compelled so to charge, and must and mislead the jury by creating in their necessarily have so found in overruling the minds a false impression that the court was motion for a new trial; so that the submisin doubt as to the sufficiency of this proof, sion of the question of the materiality of the or that there was some evidence in the case evidence to the jury, they having found in controverting the fact of jurisdiction.

their verdict that the false testimony was maThe next objection relied on was the giv. | terial, in no way prejudiced the rights of ing of instruction No. 6, which reads as fol- plaintiff in error. State y. Lewis, 10 Kan. lows: "The court instructs the jury that the 157; Montgomery v. State (Tex. Cr. App.) 40 evidence of one witness as to the falsity of S. W. 805. the evidence upon which perjury is assigned A further error is predicated upon the overis not sufficient to warrant a conviction. If ruling of defendant's challenge of the juror there is but one witness testifying directly to A. L. Bateman. This juror upon his voir dire the falsity of the evidence of one charged oath stated that he had formed and expresswith perjury, there must be evidence or cir- ed an opinion as to defendant's guilt or incumstances corroborating such falsified testi- nocence, and that he still held that opinion. mony. There is no rule by which the exact But in answer to questions propounded by weight of corroborating circumstances req- the court he stated that he could and would uisite to warrant a conviction can be deter- lay aside his opinion, and decide the issues mined, and it must be for the jury to deter- under the instructions of the court, and upon mine whether such corroborating circumstan- evidence produced, irrespective of the

are sufficient to justify a verdict of opinion that he had theretofore formed; and guilty." The particular objection which coun- that it should not in any manner shade or sel urge against this instruction is contained color the conclusion he should arrive at upin the sentence: "If there is but one witness on the trial. The court thereupon overruled testifying directly to the falsity of the evi- the challenge for cause, to which plaintiff in dence of the one charged with perjury, there crror duly excepted. Section 2592, Mills' Ann. must be evidence or circumstances corrob- St., provides that: “No person summoned as orating such falsified testimony.” It is con- a juror in a criminal case shall be disqualified tended that the effect of this instruction was to serve as such by reason of a previously to convey to the jury that the burden is upon formed or expressed opinion with reference the accused to produce evidence or circum- to the guilt or innocence of the accused; prostances corroborating his testimony. It is evi- vided, the court shall be satisfied, from the dent that by using the word “falsified” as de- examination of the juror or from other eviscribing the testimony to be corroborated, in- dence, that he will render an impartial verstead of the word "falsifying," as should dict, according to the law and the evidence have been done, to designate the testimony of submitted to the jury in the trial of such the witness testifying to the falsity of the cause." This statute makes the trial court


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the trior of the qualifications of the jurors CAMPBELL, C. J. This action was begun when challenged on the ground of having by plaintiff, the defendant in error, before formed opinions, and it is for that court to a justice of the peace of Rio Grande county, determine, as a matter of fact, whether the against the board of county commissioners juror stands indifferent; and its finding in of that county, to recover for nursing a pauthat is conclusive, and not subject to review per. The judgment

in favor of the ly this court, except in case of gross abuse board, plaintiff appealed to the county court; of discretion on the part of that court. So- and the action was there tried, resulting in lander v. People, 2 Colo. 48; Babcock v. Peo- a judgment for him, upon an agreed stateple, 13 Colo. 515, 22 Pac. 817; Jones v. Peo- ment of facts, from which, aside from formal ple, 6 Colo. 452. Upon the showing made, we matters, it appears that one Crowley was do not think the court committed any error sick and destitute, and became a county in overruling the challenge. Upon a careful charge, and that plaintiff attended him as a examination of the record, and consideration nurse for 22 days and nights. Crowley for of the objections so ably presented by coun- some time theretofore had been an inmate sel for plaintiff in error, we are satisfied that of the soldiers' and sailors' home at Monte no error intervened upon the trial of the cause Vista, but was discharged and refused readthat would justify a reversal of the judg- mittance. He was helpless and required an ment, and it is accordingly affirmed. Af

attendant constantly. French, as the comfirmed.

mander of the home, engaged the plaintiff to take care of Crowley for one day, and paid

him therefor, but refused to pay him any ad(27 Colo. 107)

ditional compensation. There was an BOARD OF COM’RS OF RIO GRANDE derstanding between French and the chairCOUNTY V. PHYE.

man of the board of county commissioners,

who was ex officio overseer of the poor, (Supreme Court of Colorado. Nov. 9, 1899.)

whereby French would try to furnish atCOUNTIES-SERVICES TO PAUPER-PRESENTA



upon Crowley.


knew that plaintiff expected compensation 1. Where the agreed statement of facts on for his services, but it does not appear that which a case was tried in the county court fails

he was aware that this was expected of the to show a compliance with section 801, Mills' Ann. St. (Sess. Laws 1887, p. 241), requiring all

board. It further appears that the commisclaims held by any person against the county to sioners paid the board of plaintiff and Crowbe presented for audit and allowance to the ley for the full period during which plainboard of county commissioners, in due form of

tiff's services were rendered. This writ of law, before an action can be maintained there. on, the action must fail, as such presentation is

error was brought by the board to review a condition precedent of the right to maintain an the judgment. action on a claim in any court.

The first clause of section 801, Mills' Ann. 2. The appellate courts will not regard the

“All oral admission of counsel, made below, and not

St. (Sess. Laws 1887, p. 241), reads: appearing in the record, that a condition preced

claims and demands held by any person ent of the right to bring an action had been against a county shall be presented for audit complied with.

and allowance to the board of county com3. Objection that a claim against a county was not presented for audit and allowance be

missioners of the proper county, in due form fore action thereon, as required by section 801, of law, before an action in any court shall Mills' Ann. St. (Sess. Laws 1887, p. 241), can be maintainable thereon.” There is nothing be first raised on appeal.

in the record to show that the claim upon 4. The commander of the soldiers' and sailors' home employed and paid plaintiff for one

which this action was founded was presentday's care of a sick pauper, who had previously ed for such audit and allowance, and this been an inmate of the home, but had been dis

presentation is a condition precedent of the charged and refused readmittance. There was

right to maintain an action thereon in any an understanding between the commander and the chairman of the board of county commis

court. Had the action originated in a court sioners that the commander should try to fur- of record, where pleadings are required, the nish attendance upon the pauper. The chairman

complaint must have contained an averment knew that plaintiff expected compensation for his services, but was not aware that this was

of such presentation, otherwise it would fail expected of the board. The commissioners paid to state facts sufficient to constitute a cause the board of plaintiff and the pauper for the of action. For the purpose of determining full period during which plaintiff's services were

the sufficiency of plaintiff's case, the agreed rendered. Held, the county was not liable, as the facts do not constitute either an express or

statement of facts corresponds to, and may implied contract on the part of the county to be deemed the equivalent of, the complaint; pay plaintiff for his services.

and, since there is an absence therefrom of Error to Rio Grande county court.

a showing that this statute was complied Action by James F. Phye against the board

with, the action must fail. Such is the plain of county commissioners of Rio Grande coun

meaning of our statute, and to this effect are

the authorities. ty. Judgment for plaintiff. Defendant brings

Board of Sup'rs of Law

rence Co. v. City of Brookhaven, 51 Miss. 68; error. Reversed.

Hohman v. County of Comal, 34 Tex. 36; C. M. Corlett, for plaintiff in error. Jesse Ellissen v. Halleck, 6 Cal. 386; McCann v. O. Wiley, for defendant in error.

Sierra Co., 7 Cal. 121; Powder River Cattle Co. v. Commissioners of Custer County, 9 We do not, therefore, direct what judgment Mont. 145, 22 Pac. 383.

shall be rendered by the county court, but Defendant in error says, however, in argu- reverse the judgment, and remand the cause ment, that, as a matter of fact, this claim for a new trial. Reversed. was presented to the board, and when the statement of facts was signed its attorney

(26 Colo. 539) admitted that this condition precedent had been complied with. If this be true, it is

EDWARDS v. PEOPLE. unfortunate for plaintiff; for appellate courts (Supreme Court of Colorado. Nov. 9, 1899.) do not regard oral stipulations of counsel, CRIMINAL LAW-TRIAL - INSTRUCTIONS -- AP

PEAL AND ERROR-MOTION FOR NEW TRIAL made below, and not appearing in the record.

RULING - EXCEPTIONS - BILL OF EXCEPWe are limited in the case at bar to the TIONS. stipulation of facts, and bound by its recital; 1. Where an instruction is given orally, and and, since it does not show a compliance

the division thereof into paragraphs in the ab

stract was subsequently and arbitrarily made with the statute, we must hold that this ac

by counsel, a general objection to a paragraph tion was premature, and that the objection of the instruction, referring to it as “Instruction may be raised at any time.

No. 7," is insufficient.

2. Where error is alleged to instruction as a In the event of a new trial, we deem it

whole, separable parts of which are correct, the proper to say that, on the facts as stipulated, assignment is bad. the county is not holden. Our attention has 3. Where the first sentence of an instruction been called to a line of cases declaring that

might be construed to mean that it was not nec

essary for the people to show that at least some a municipality may be liable under an im

of the cattle stolen corresponded with those deplied contract for necessaries furnished and scribed in the information, and is immediately services rendered to a county charge, and to

followed by a correct statement of the law such

as will disabuse the minds of the jurors of such another class which lays down the doctrine

an inference, the objectionable feature is cured. that the county is bound only upon an ex- 4. Where there is no specific assignment of erpress contract. We are inclined to the view ror on the ground that the evidence was insuffithat, in some circumstances, under our stat

cient to support the verdict, the defendant can

not be heard to allege any error on that ground, ute expressly making paupers a county touching the ruling on the motion for a new charge, the county may be liable on an im. trial. plied contract. But that question is not nec

5. In criminal cases, the motion for a new

trial, the ruling thereon, and defendant's excepessarily before us; for, if it be assumed that

tions thereto must be preserved in the bill of a recovery may be had upon an implied con- exceptions, as they have no place in the record. tract, the facts appearing in this record do not establish it. That the county ought to

Error to district court, Logan county.

R. Edwards, convicted of larceny, brings have furnished and paid for the nursing of

error. Affirmed. the county charge may be, and doubtless is, true. That it did not, through its proper

W. E. Crissman, for plaintiff in error. officers, expressly or impliedly incur the David M. Campbell, Atty. Gen., Calvin E. obligation to pay plaintiff, seems clear, if Reed, Asst. Atty. Gen., and Dan B. Carey, the agreed statement contains all the facts. Asst. Atty. Gen., for the People. The chairman of the board, it is true, knew that plaintiff expected payment for his sery- CAMPBELL, C. J. The defendant was ices, but there is nothing in the stipulation to convicted of the larceny of 24 head of neat show that he supposed that the plaintiff in- cattle, and to reverse the sentence imposed tended to rely upon the county. If'any fact on him has brought the case here on error. other than those stipulated is to be implied of the errors assigned, all were abandoned from those expressed, it is that the chairman by counsel for plaintiff in error at the oral of the board inferred that the compensation argument except the two following: "(a) would be made by French, representing the The court erred in giving to the jury what soldiers' and sailors' home, inasmuch as that is now called 'instruction No. 7,' reading: official had employed and paid the plaintiff "The court further instructs you that it is not for one day's services, and the understanding necessary for you to find that all of this between French and the chairman was that stock, or in fact any of it, has been proved to the former would at least try to furnish a have been in all respects as described in the nurse for the pauper. At any rate, there is information, but it is your duty to find that nothing in the stipulation to show that the some one or more of them were substantially chairman of the board employed the plaintiff

the same. The point for you to determine is to give his services, or bad cause to believe the identity of at least a portion of the propthat the county would be expected to pay for erty lost by McRoberts, if any was lost, with them; nor are any facts shown which con- at least a portion of the property described in stitute an implied contract to pay. Though the information. In order to make myself the amount involved is small, and the de- clear, if it has not already been done, I furmands of humanity would seem to appeal to ther say to you that it is not necessary for the board to allow this claim, we can find no the state to prove the description given to the justification in the stipulated facts for sus- full twenty-four head of stock named in the taining the judgment against the county. information, but as to that part of the case it Upon a new trial the facts may be different. has done what the law requires if it has proyed that any one or more of those twenty-four | gued in the original brief of plaintiff in error, dead were branded and otherwise marked as į but was at the oral argument, and the pardescribed in the information. In other ticular error then pointed out was that the words, you are instructed that, when one or evidence was insufficient to support the vermore articles are alleged to have been stolen, dict. There is no specific assignment of erproof of any one of them is sufficient to make ror on this ground, and the defendant cannot the case, so far as that part of the case is now be heard to allege any error touching concerned.' (b) The court erred in overruling the ruling on the motion for a new trial. the motion for a new trial."

Neither the motion nor the ruling, nor de1. For the present purpose, it may be con- fendant's exception thereto, is preserved in ceded that the first sentence of the above- the bill of exceptions. The established rule quoted instruction, taken by itself, is an in- of this court, announced so many times, is correct statement, in that it is susceptible of that, in a criminal case, these matters have the interpretation that it was not necessary no place in the record, but must be preserved for the people to show that at least some of by bill. But, in order to affirm this judgment, the cattle stolen corresponded to those de- it is not necessary to invoke these rules of scribed in the information. In the first place, practice; for the reading of all the evidence it may be said that the plaintiff in error is in the case satisfies us that every material not in a position to urge this objection. The averment of the information is abundantly charge was given orally, and apparently the established. Affirmed. division thereof into separate paragraphs in the abstract was subsequently and arbitrarily made by counsel for the plaintiff in error.

(26 Colo. 542) The general objection, therefore, made to

ROWE v. PEOPLE (two cases). what is now called "Instruction No. 7,” would (Supreme Court of Colorado. Nov. 9, 1899.) not, under our practice, be good. But if it be

LARCENY-INFORMATION-EVIDENCE VARIconceded that this was given as a separate in- ANCE - APPEAL - RECORD -- FAILURE TO

ASSIGN ERROR-DISTURBING VERDICT. struction, and designated by a number, the

1. Where the statute provides several ways objection made at the time was not sufficient.

in which a larceny may be committed, and the Confessedly, the latter portion states the law information charges in a single count that decorrectly; and under rule 11 of this court fendant did all the forbidden things, by employ(38 Pac. vi.), and under the established prac

ing the conjunction "and" where the statute

used "or,” a conviction is proper if there is proof tice where error is alleged to an instruction that defendant committed the offense in any of as a whole, separable parts of which are cor- the ways specified. rect, the assignment is bad.

2. Where, it being evident from an inspec

tion of the record in a prosecution for larceny But, aside from these considerations, we

of a horse that the variance in the name of the are satisfied that the jury were not misled; owner as charged in the information and as for, in immediate connection with, and direct- shown by the evidence was a typographical erly following, the objectionable feature of the

ror, the district attorney, by leave of the court,

withdrew the bill of exceptions and corrected instruction, the attention of the jury is speci

the error, an objection that there was a fatal fically called three times to the proposition variance between the allegations and proof is of law which the court was endeavoring to


3. Where a motion for a new trial is not pre

served in the bill of exceptions, it cannot be conwas necessary to find that at least a part of sidered on appeal. the property proved to have been stolen was 4. Where no error is assigned on the ground identical with at least a part of the property

that the evidence was insufficient to support the

verdict, and that the verdict was rendered undescribed in the information. We understand

der the influence of passion and prejudice, such the law to be, where one is charged with questions cannot be considered on appeal. larceny of a number of articles, all of which 5. Where there is evidence to support the verare described in the same terms, that number

dict, it will not be disturbed on appeal.

6. Where the improper language alleged to is not descriptive, and proof of any one or have been used by the district attorney in admore of the articles—which this record clearly dressing the jury is not preserved in the bill of shows was furnished-will sustain the allega- exceptions, the objection cannot be considered

on appeal. tions of the charge and avoid a variance.

7. Where the judge left the bench for a short The concluding portion of the instruction, time while the district attorney was addressing which is but a restatement of the proposition

the jury, and went to his room, which was a attempted to be laid down in the first sen

few feet away, his absence was not such as to

constitute reversible error. tence, must have disabused the minds of the jurors of any inference they might otherwise

Error to district court, Boulder county. have derived from the first part that it was

Edward Rowe and George H. Rowe were not necessary for the description, as laid in

separately convicted of larceny, and both the information, to be met by the proof.

bring error. Affirmed. Whart. Cr. Ev. (8th Ed.) $8 121, 123, 125, 129, The above-named plaintiffs in error were 132, 145; 1 Bish. Cr. Proc. (30 Ed.) 8 488b; separately charged by information, in the disPeople v. Wiley, 3 Hill, 194, 213; Alderson v. trict court of Boulder county, with the larState, 2 Tex. App. 10; Kollenberger v. Peo- ceny of a horse, the property of one Freder. ple, 9 Colo. 233, 11 Pac. 101.

ick Sherwood. The first counts of the infor2. The second error assigned was not ar- mations, omitting the formal parts, were as

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