Porter v. People , 31 Colo. 508 ( 1903 )

Mr. Justice Gabbert

delivered the opinion of the court.

A witness by the name of Grant had been instrumental in securing evidence connecting the defendant with'the offenses for which he was tried. It appears that this witness had obtained evidence against one Toner, who had previously been convicted of the larceny of cattle. For services rendered in that prosecution the witness had been paid one hundred dollars by the local cattle growers’ association. This association had a standing reward for the arrest and conviction of cattle thieves, and this reward appears to have been paid the witness after the conviction of Toner. It is claimed on behalf of the defendant that the witness had demanded of the association the sum of one hundred dollars for his testimony in the ease at bar, and that the association had agreed to pay him this sum. After questions on cross-examination the purpose of which was to show what and by whom he had been paid in the Toner ease, the witness was asked: “What are you after, the conviction of Porter or the hundred dollars you spoke of?” An objection to this question was sustained. Unless it appears that by sustaining an objection to a. question on cross-examination the defendant in a criminal prosecution was prejudiced, such ruling will not constitute reversible error. The purpose of cross-examination is to test the truthfulness of the direct testimony of a witness by showing any facts which might affect his credibility, so that the jury may have some criterion by which to correctly estimate the weight to be given his testimony. To this end reasonable opportunity should be afforded to cross-examine a witness on all proper subjects, but the extent to which such examination may be carried is subject to the control of the trial judge within reasonable limits.—Powers v. People, 17 Colo. 178; 8 Enc. Pl. & Pr. 112. The object of the question under consideration was to show the interest of the witness in the result of the prosecution, but even if proper, other questions were asked and answered on cross-examination which were sufficient to enable the jury to determine whether or not his testimony was in any degree prompted by a desire to secure the reward of the cattle growers’ association.

The theory of the prosecution was, that defendant was implicated in the crimes for which Toner had already been convicted. The defendant was a deputy stock inspector, and it was claimed on the part of the people, that his part was to falsely inspect out .the cattle stolen by Toner and driven in for shipment. There was testimony tending to establish this claim. Over the objection of defendant, the witness Grant was permitted to state what was said to him by Toner relative to the transaction for which the defendant was convicted, which conversation was had when the defendant was not present, but previous to the consummation of the crimes. Previous to stating the conversation with Toner, the witness had given in detail the arrangement between Toner and Porter as communicated to him by the latter, by which the theft of cattle from the. range was to be accomplished. Consequently, the statements of Toner relative to these matters were admissible against the defendant. At the time of this conversation the witness did not know that the defendant was to do more than falsely inspect the cattle, but that is immaterial. "Where several persons unite to commit a crime, the acts and declarations of each in furtherance of their common design prior to • the consummation of the crime, are admissible against all. If what Grant said in the conversation between Toner and himself was not admissible, it is plain that.'what he did say could not have affected the case one way or the other on the merits.

Error is assigned on the reception of testimony on the part of the people after the defense was closed; The particular objection urged is that this testimony was not rebuttal, but testimony-in-chief. It does not appear that the defendant was prevented from meeting. this testimony, or in any manner prejudiced thereby, except as it may have tended to establish his guilt. The admission of evidence as rebuttal which should properly have been introduced in chief is not error of which the party iagainst whom such evidence is admitted can complain unless it appears that the discretion of the trial court as to the order of proof was abused to his prejudice.

■ By an instruction' given it is contended by counsel for defendant that the jury were limited in determining the innocence or guilt of the accused to the one question of the possession of the stolen property. Instructions must be considered as a whole, and in this particular case the judge, at the close of his instructions, particularly advised the jury that they were not to consider the instructions separately or apart from each other, but that they were to be read and considered together. . If, therefore, the instruction, standing alone, would be subject to the criticism offered, it is not objectionable for the reasons assigned, when considered in connection with the other instructions given.

The next instruction given by the court is challenged because it is said that thereby the jury were advised, in substance, that an inference of guilt as a matter of law might be drawn from the possession of the stolen property. The instruction is not susceptible of that construction. The jury were advised that if they believed from the evidence, beyond a reasonable doubt, that the defendant was connected with others in a plan to steal the property, and that such property or any portion of it was found in the possession of the accused or any of those concerned in the plan to steal the same shortly after it was taken, then that such possession would, in law, be treated as the possession of all, and that the inference of guilt arising from such possession would apply equally to all, so that the court did not instruct to the effect that the inference of guilt arising from the possession of stolen property was to be inferred as a matter of law, but that such possession in the circumstances narrated would.be considered in law as the possession of all.

The next instruction is also challenged for the reason that thereby the jury were instructed to the effect, without any qualification whatever, that an act on the part of defendant, such as issuing false certificates of inspection, would be sufficient to justify a verdict of guilty, and that by this instruction the court assumed that such certificates were issued by defendant as a matter of fact, or in furtherance of a common design to commit the larcenies for which he has been convicted. The court did not assume that any of the facts necessary to be established in order to* warrant a conviction of the defendant were proven, but simply advised the jury to the effect, when the instruction is read as a whole, that if they believed from the testimony, beyond a reasonable doubt, that the defendant took any part in carrying out the common plan entered into between himself and others to commit the larcenies charged, that then the act of each in carrying out such plan was the act of all.

At the close of an instruction to the jury touching the weight and credibility which should be accorded the testimony of the defendant, it was stated; in substance, that such testimony should not be re-: ceived blindly as true, but that the jury should determine for themselves whether it was true, and made in good faith, or only for the purpose of avoiding' conviction. This part of the instruction is objected to because, it is claimed, that thereby the defendant was singled out and his testimony made a target for a distinct and specific method of measuring the truth or falsity of his testimony. Doubtless the better practice would be to confine an instruction on the question of the credibility of the defendant in a criminal prosecution where he testifies on behalf of himself to the usual rules by which the truth or falsity of testimony of other witnesses' may be der termined; but where, as in this instance, the jury were previously advised that the accused was a competent witness in his own behalf, that the credibility of his testimony was a matter exclusively for them to determine, 'and that in doing so they had a right •to take into account his interest in the result of the case, the mere fact that the court went a step further and directly called the attention of the jury to what that interest was, was not an indication that they should test his credibility by any different standard than that which should be applied to the testimony of other witnesses.

Error is also assigned on two further instructions, the first of which defined an accomplice, and that a person was not an accomplice whose co-operation in the crime was not real, but merely assumed, and the second advised the jury that if they believed the witness Grant was employed as a detective by the cattle inspectors, and his action with the defendant and others was for the purpose of discovering crime, he was not an accomplice, and if the jury believed his testimony sufficient to convict, that they should receive and act upon it the same as any other testimony. There is no legal objection offered to either of these instructions. Apparently, from the cross-examination of the witness, it was attempted to convey the idea that instead of his acting the part of a detective he was, in fact, a particeps criminis, and it was, therefore, not amiss for the court to advise the jury what would constitute an accomplice. Further than this, when it appeared that the witness had been co-operating with the defendant and others in thé commission of the crimes charged, it was proper to call the attention of the jury to the difference between such co-operation when real and assumed, so •they might understand that in the latter capacity, if they found such to be the fact, he was not to be regarded as an accomplice. Neither did the court make any statement in either of these instructions by which the jury would understand that it was intended, as claimed by counsel for defendant, to elevate the testimony of the witness Grant, because it is apparent when they are read together, in connection with the entire charge, that the sole purpose of the court was to define an accomplice, and when one was or was not an accomplice, and that the mere fact that the witness had entered into an arrangement with the accused and Toner the purpose of which was to secure testimony which might convict them of the crime of larceny, would not render him an accomplice, and therefore his testimony would, if the jury believed it, be sufficient to convict, although uncorroborated, if thereby the facts necessary to warrant a conviction were established beyond a reasonable doubt. In the circumstances of this case, these instructions do not violate the law as-declared in Connor v. The People, 18 Colo. 373. Grant did not instigate either Toner or the defendant to commit the crimes for which they have been convicted. He knew, so he says, that they were engaged in stealing cattle, and the arrangement between them apparently was, that in order to fill ont a car, he would ship Some of his own cattle with, those they might steal. The defendant did not claim at the trial that he was entrapped or induced by Grant to commit the larceny. His defense was a- straight denial of the commission of the crimes of which the ■jury found him guilty. Grant did not approach him, but on the contrary, so far as disclosed by the record, he spoke to him first, and said he would inspect the ‘Cattle out all right if there was anything in it for him. The facts in the Connor case which prompted the .criticism of the action of the detectives who were witnesses in that cause, are entirely different from those in the case at bar. Grant was not in the employ of the owners of the stolen cattle; they knew nothing of the arrangement between Toner, the defendant, and himself; neither was he an officer of the law.

Two instructions requested on the part of the defendant were, refused, and errors assigned on such refusal. The 'first was to the effect that evidence relating to other offenses was permissible only for. the purpose of affecting the credibility of the defendant as a witness, and that the jury could not convict him of any other crime than that for which he was being tried, no matter how conclusive or convincing such testimony might be, and the second, that if the jury believed from the evidence that the witness Grant was a hired witness, and testified merely for the sake of receiving pay therefor, that they were at liberty to disregard his entire testimony, except wherein it might have been corroborated by other credible witnesses. The court correctly refused each of these instructions. As to the first, it is clearly inapplicable, because the purpose of introducing testimony on the part of the prosecution to prove that the accused had issued false certificates of inspection on the cattle stolen was not to affect bis credibility, or to show that he had committed another crime of the same character as that for which he was being tried, but, on the contrary, its only purpose was to show the part he had taken in stealing the cattle in connection with Toner, in pursuance of a concertéd plan between them. As to the next instruction the court had instructed the jury that the credibility of .the witnesses was a question exclusively for them to determine, and that in so doing they had a right to take into consideration their interest in the result of the case, and to give credit accordingly. This fully covered the purpose of the instruction refused. It is not error to refuse an instruction which is incorporated substantially in those given.

The judgment of the district court will stand affirmed. Affirmed.