Kolkman v. People ( 1931 )

JOHN Kolkman, Roy Kolkman, J. B. Morrison and William Morrison, fathers and sons respectively, were jointly charged with the crime of grand larceny. The court granted the Morrisons a separate trial. Upon the trial of the Kolkmans, John was convicted and sentence pronounced, while the jury failed to agree upon a verdict as to Roy. John Kolkman, who will hereinafter be referred to either by name or as defendant, prosecutes this writ, seeking a reversal because of two alleged errors occurring during the proceedings, i. e., (1) Refusal of the trial court to grant his motion for a separate trial; (2) the trial court's comments to the jury.

The record discloses that, on February 14, 1929, an information was filed in the district court, and the capias issued thereon was made returnable at the March, 1929, term of court; it also shows the apprehension of the Kolkmans, and the giving of bonds for their appearance; on March 10, 1930, the Kolkmans filed their verified joint motion to disqualify the trial judge, which motion was on that day denied; on March 21, 1930, the Kolkmans filed their joint motion to quash the information, which motion was also on that day denied; on March 21, 1930, the Kolkmans filed their joint motion for a continuance, which motion was supported by their joint affidavit and was granted, and the case set for trial on April 14, 1930. On March 21, 1930, the Kolkmans each verified separate motions for separate trials, which motions were identical in every respect, except as to the name of the moving party, but which were not filed until April 14, 1930, just as court had convened for the trial of the Kolkmans. The motions were denied, and the trial followed immediately. The record also discloses that the Kolkmans were represented throughout the entire proceedings by counsel who represent John in this court.

1. The pertinent parts of the motions for a separate trial are:

"1. That there will be evidence offered on behalf of the People which will not and does not relate to the reputation of this defendant, but which will be material and admissible against said defendant, John Kolkman, if tried jointly with this defendant, but which would be immaterial, incompetent and inadmissible as to this defendant, and which would be prejudicial to his rights."

"2. That evidence will be offered on behalf of the People at the trial of this case which will be highly prejudicial to this defendant and which will be wholly incompetent and irrelevant as to this defendant, but which will be material and competent as against said John Kolkman, and which prejudicial evidence will necessarily reach the ears of the jurors, whereby the constitutional rights of this defendant to an impartial trial to a jury will be violated and the liberty of this defendant jeopardized without authority of law, and this defendant is informed and, therefore, alleges that it is the intent and purpose of the district attorney to offer in evidence certain statements, confessions, conversations and acts of the defendants, J. B. Morrison and William Morrison, and other witnesses and alleged acts, statements, conduct and conversations of defendant, John Kolkman, not made or done in the presence of this defendant or participated in by him, all of which will be competent and material evidence as against the defendant, John Kolkman, but not as against this defendant, and that certain documents, letters, papers and other written evidence will be competent as against defendant John Kolkman, but not as against this defendant, will be offered in evidence to the great prejudice of this defendant; that this defendant cannot more definitely advise the court as to what the testimony to be offered by the People and which may or will be competent as against John Kolkman, and wholly incompetent and prejudicial as to the defendant, will be, and this moving defendant says that if he is compelled to proceed to trial under the information filed herein and in this case upon a joint trial of the two remaining defendants (while he is wholly innocent of the charge filed against him) he will be greatly prejudiced and his constitutional rights will be violated and his right to a separate trial under the law of the land and the statutes of the State of Colorado will be denied."

[1] We have held that, unless the bill of exceptions discloses the admission of prejudicial evidence, no error is committed in denying a motion for a severance; Stonev. People, 71 Colo. 162, 167, 204 P. 897; Sarno v. People,74 Colo. 528, 531, 223 P. 41.

[2] We have also held that the motion for a severance, or the affidavit supporting the same, must set forth the incompetent and prejudicial evidence so as to advise the trial court in determining the question of granting or denying the motion; Robinson v. People, 76 Colo. 416,419, 232 P. 672; Garcia v. People, 88 Colo. 267,295 P. 491.

The defendant seeks to avoid the rule announced in the Robinson and Garcia cases, supra, by alleging in his verified motion for a separate trial that he "cannot more definitely advise the court as to what the testimony to be offered by the People and which may or will be competent as against Roy Kolkman, and wholly incompetent and prejudicial as to the defendant, will be," and, of course, if the truth of this statement is borne out by the evidence offered at the trial, the motion for a severance would not be insufficient because of defendant's failure to do the impossible.

The serious question raised by the assignment of errors relates to the admission of the evidence of witnesses J. B. Morrison, William Morrison, and one Denton with reference to acts, conversations, and admissions of Roy Kolkman when defendant was absent.

The evidence on behalf of the people was that in January, 1929, John Kolkman was at Morrison's house, near which lived a man named Burson, whose hogs were in a field near the Morrison house; defendant inquired of J. B. Morrison as to the ownership of the hogs, and was told to whom they belonged, and then defendant made the remark, "Why not let's get these hogs," to which Morrison replied, "Well we would get into it, would we not?" defendant replied, "Why no, we can take these hogs and take them up to my place and butcher them and nobody will ever know what went with them." Morrison further testified that about February 4, 1929, at a certain public sale, he had a conversation with defendant and Roy Kolkman with reference to the theft of the hogs, and in the evening of the same day the Kolkmans came to his place, and there and then it was determined between witness and the Kolkmans that the hogs should be stolen during the night and taken in the Kolkmans' truck to defendant's ranch, where they would be butchered next day, and the pork would be equally divided between witness, defendant, and Roy Kolkman; that pursuant to this plan, the hogs were stolen, trucked to the Kolkman ranch, and butchered the following day, and in the butchering, witness, his son, defendant, and others participated, but be fore the division could be made, the officers and the owner of the hogs took the pork out of defendant's possession. After the pork had been discovered, and that very night, John and Roy Kolkman went to the house where witness resided, and there, in the presence of William Morrison, entered into a discussion, and formulated plans for evading arrest and conviction. Following this conference, witness was taken by defendant and Roy Kolkman to a farm where a man by the name of Pottsberg lived, and there it was stated by both defendant and Roy Kolkman that they had all been involved in the theft of Burson's hogs, and that the sheriff was after witness (J. B. Morrison), who also stated: "He was trying to get me out of the way so they could lay the blame on me until he could get it fixed up." Roy and defendant left witness at Pottsberg's house, and they said "they would get somebody down there to get me away from there the next morning." The next morning one Stevenson came to Pottsberg's and took witness to Aguilar, and delivered to him five hundred dollars, which according to previous arrangement between him and the Kolkmans, was to be sent with the man who came to move witness out of the country. Witness was left at Aguilar, where he remained for several days, when John Kolkman came to see him and inquired what he wanted, and the money witness had received having been lost or stolen, he replied: "I told him I wasn't going to leave until I got to see my wife and I had to have some money, they would have to get me some money to get away on, leave on." Defendant then left for his home, and in two or three days returned to Aguilar with witness' wife, and after witness had conversed with her a few moments, defendant said, "We better get out of here because the sheriff is liable to be here any minute." During the conversation between witness and defendant at Aguilar, defendant, according to witness, stated: "Him and Roy was to take my cattle and finish wintering them and summer them free of charge and I was to stay out of the way till they could get the thing straightened up, make it look like I was the guilty party and they would buy the prosecuting attorney off and Burson would get the thing straightened up so I could come back and it would be straightened for all of us." Defendant then took the witness to Memphis, Texas, where, after giving him forty dollars, he left him and returned to Colorado. Witness, using the name of Joe Hoket, wired defendant for money on several occasions, and the money was sent to him either at Memphis or San Angelo. At San Angelo, Texas, defendant brought witness' wife to see him, and from there witness and his wife and defendant went to Big Springs, Texas, where it was arranged between them that defendant and witness' wife were to return to Colorado to get witness' car, and it was arranged that either defendant or Roy Kolkman was to return with the car and witness' wife to Big Springs. Roy returned with the car and wife, and all three went in the car to Amarillo, Texas, where Roy took the train and returned to Colorado. While at Big Springs, Roy telegraphed to defendant for one hundred dollars, which he gave to Morrison's wife. Witness then went to New Mexico, then to Oklahoma, back to Raton, New Mexico, and eventually returned to Colorado, where he was arrested and charged with the theft of the hogs. Witness, at Roy's solicitation, went to see the attorneys for the defendant for advice as to his constitutional rights with respect to testifying, and he testified that Roy told him "that him and John had everything fixed if I would sign a bunch of papers they had seen and they would release my bond and I would not have to come back and the case would be thrown out of court and there would be nothing to it."

William Morrison testified that he was present at the conversation between his father, defendant, and Roy Kolkman, at his father's house the night the pork was discovered, and that defendant stated something would have to be done, to which his father replied, "Yes, it looks like something had to be done." Witness further testified: "They wanted the old man to leave and he didn't want to, and he tried to get John to, and they said, `No, John couldn't leave, he was under bond,' and the old man offered to pay half the bond he was under and Roy the other half and he wouldn't do that, and Roy claimed he couldn't leave because he had his outfit up there and he couldn't get away and they decided he would leave and they was to give him a thousand dollars and fix this up for all of them while he was gone," and witness then testified that his father left that night.

Denton was merely a "go-between," and testified to conversations with Roy concerning ways and means of having the charges dismissed, and witness' efforts in that behalf.

Everything testified as having been said and done, in the absence of defendant herein, was objected to by him.

In Van Wyk v. People, 45 Colo. 1, 99 P. 1009, the defendants were charged with the crime of murder, and the trial court instructed the jury on the law of conspiracy, and this was assigned as error. Upon this question, at page 11, in disposing of this contention, this court said: "It is true that the defendants were not charged with having conspired and confederated together to kill and murder, but they were jointly informed against and charged with murder. Under this charge it was entirely proper to show a conspiracy on the part of the defendants to commit the offense, and the acts and declarations of one conspirator in furtherance of the common design were admissible against both the defendants;" * * *.

[3] It is not necessary an information should charge a conspiracy, but although no conspiracy is charged, if it is made to appear that there was concerted action between codefendants, the acts and declarations of one are admissible against the other. 16 C. J. 647.

"While the commission of the crime to which a conspiracy relates' will in many cases mark the accomplishment of its object and its consequent termination, so as to exclude evidence of subsequent acts or declarations of one conspirator against another, this is not necessarily true, but the conspiracy may continue for various purposes, as for instance * * * the division of such proceeds, the concealment of the crime, effecting an escape, the concealment of evidence tending to incriminate the conspirators, procuring witnesses to leave the state, * * * and where this is the case, the acts and declarations of one conspirator are admissible against the others, where made while the conspiracy continued, although after the actual commission of the crime." 16 C. J. 661, et seq.

The evidence offered by the people, if believed by the jury, warranted it in finding that the Kolkmans and the Morrisons entered into a conspiracy to commit the crime of larceny; that the larceny was in fact committed, and before the division of the loot, and when the participants therein were in danger of apprehension, the original conspiracy continued; or that another conspiracy was entered into between all the parties to conceal the crime and evidence thereof, so that punishment might not be suffered thereafter. In either event, the position of the parties is not changed; they were coconspirators, if the evidence of the people is to be believed, and as such the acts and declarations of one are admissible as against the other.

[4] The gravamen of the offense charged is not conspiracy but larceny. Evidence of such conspiracy is admissible to prove the crime charged. Where, as here, the conspiracy was entered into between defendants jointly charged and tried, having for its object not only the crime charged, but escape from punishment therefor, evidence thereof is proper for the purpose of showing a consciousness of guilt.

In Byrd v. State, 68 Ga. 661, the syllabus correctly supports the holding of the court, and is: "The acts and conduct of one accomplice during the pendency of the wrongful act, not only in its perpetration, but also in its subsequent concealment, are admissible against the other."

In Carter v. State, 106 Ga. 372, 377, 32 S.E. 345, in commenting upon the rule announced in the Byrd case, supra, the court said: "It seems, therefore, under the decision of this court in Byrd v. State, 68 Ga. 661, that this evidence was admissible against Carter. In that case it was distinctly ruled that the acts and conduct of one accomplice during the pendency of the wrongful act, not alone in its actual perpetration but also in its subsequent concealment, were admissible against another accomplice. This holding was doubtless based upon the idea that the criminal enterprise was still pending while the conspirators continued to be active in taking measures to prevent the discovery of the crime or the identity of those connected with its perpetration."

"Acts of the parties, although after the consummation of the crime, done for the purpose of escaping detection are admissible." 3 Enc. of Ev. 432.

[5] It is evident from the testimony of Jim Morrison that, at the time the larceny of the hogs was first suggested to him by defendant, he had in mind the fear of detection and punishment, and this fear was allayed by defendant's remark as to how the theft could be accomplished and concealed, and detection and punishment evaded. It is also obvious that when the pork was found, and taken into the possession of the officers and the owner, that, according to the Morrisons' testimony, another separate and distinct conspiracy was entered into between all the parties, including this defendant, the purpose and object of which being to avoid apprehension, arrest, conviction, and punishment. If the first conspiracy extended beyond the commission of the larceny, for which defendant was tried, or if the latter conspiracy was entered into, as witness testified, all the acts and declarations of all the parties connected therewith and pertaining thereto were admissible as to this defendant.

"The common design of a criminal enterprise may extend, however, as appellant concedes, beyond the point of the commission of the act constituting the crime for which the alleged conspirator is on trial. * * * The reasonable inference to be drawn from the foregoing evidence is that all of these subsequent acts were consummated in the execution of a scheme to evade arrest and escape punishment, and, therefore, under the rule of the authorities cited, the trial court was justified, we think, in receiving the evidence in order that the jury might determine whether or not the original conspiracy extended up to and included the scheme to escape, and, if so, whether the act of the Broses in registering under an assumed name was in pursuance thereof." People v.Lorraine, 90 Cal. App. 317, 327, 265 P. 893, 897.

To the same effect see: State v. Arnold, 84 Mont. 348,275 P. 757, 760; People v. Sampsell, 104 Cal. App. 431,286 P. 434, 437; 1 Greenleaf on Evidence, (16th Ed.) 305, note 2; State v. Pettit, 74 Wash. 510, 133 P. 1014,1019; State v. Gauthier, 113 Ore. 297, 307, 231 P. 141;Scott v. State, 30 Ala. 503, 510; Miller v. Dayton,57 Ia. 423, 429, 10 N.W. 814; Commonwealth v. Scott,123 Mass. 222, 235; Sanders v. State, 35 Okla. Crim. 139, 249 P. 356,357; Allen v. Commonwealth, 176 Ky. 475, 485, 196 S.W. 160;O'Brien v. State, 69 Neb. 691, 693, 96 N.W. 649;People v. Fox, 269 Ill. 300, 322, 110 N.E. 26; People v.Pitcher, 15 Mich. 396, 402; State v. Pratt, 121 Mo. 566,572, 573, 26 S.W. 556; People v. Mol, 137 Mich. 692, 707,100 N.W. 913; State v. Roberts, 95 Kan. 280,147 P. 828, 831, 832; Carter v. State, 106 Ga. 372, 376, 377,32 S.E. 345; State v. Dilley, 44 Wash. 207, 87 P. 133, 136.

As such evidence would have been admissible had defendant been tried separately, there was no prejudicial error in denying the motion for a separate trial.

The trial judge, pursuant to the authority granted by our rule 14b, after the written instructions had been read to the jury and counsel had completed their arguments, commented to the jury upon the evidence as follows:

"Gentlemen of the Jury: There are four defendants named in the information. All four of these defendants have testified in this trial. Only two of the defendants, viz.: John Kolkman and Roy Kolkman, are on trial. The two Morrisons who are named as defendants are not on trial here.

"There is a direct conflict between the evidence offered by the two Kolkmans who are on trial and that given by the two Morrisons who are also defendants. The two Morrisons have testified for the State. The court believes that the evidence when taken as a whole and all the circumstances as they have been presented here show that all four of these defendants are equally involved in the crime charged in the information and all four stand equally before the law in the same position.

"These comments that the court makes are not binding upon you. You are to make your finding and return your verdict as you may find the evidence warrants."

Counsel for defendant interposed the following objection: * * * "that it invades the province of the jury, and denies to the defendant his constitutional right to a trial by a jury." In view of the importance of the question and its novelty in this jurisdiction, it has seemed advisable to fully consider and discuss possible objections not specifically urged by defendant's counsel.

[6] Our rule 14b reads as follows: "The rules governing comments by district judges on evidence shall be those now in force in the United States district courts."

Our rule 14b was unanimously adopted on July 1, 1929; became effective on September 1, 1929, which was subsequent to the commission of the alleged offense, but prior to the trial therefor. It may be contended that there is no printed rule in the United States courts permitting comments on the evidence by trial judges, and therefore our rule is indefinite and uncertain. So far as we are aware the premise is correct, but the conclusion is wrong. We have caused to be printed and distributed among the profession "Rules of the Supreme Court of the State of Colorado, 1929"; but it should not be assumed that every rule adopted and effective in the state of Colorado can be found within its covers, for in the recent case ofParker v. Plympton, 85 Colo. 87, 96, 273 P. 1030, it is said: "Many of our rules of practice and procedure are printed in a separate book, appropriately labelled, and distributed free to the attorneys practicing before this court. But a vast number of such rules are contained in the printed reports of our decisions, promulgated as justice demanded, and when the occasion therefor arose. Manifestly they are too numerous to make it possible to put them all in one book, but they are as binding as if they were all contained between two covers, and there should be no misunderstanding as to the meaning of the one stated as often as this has been."

[7] The word "rules," as the same is used and intended in our rule 14b, is synonymous with practice, procedure, custom, method, and/or system. It seems passing strange that no one empowered under this rule has indicated any doubt as to the meaning thereof, or the extent of his power and duty thereunder. It was our intention in adopting the rule to advise the district judges in our courts that they possessed the same rights and duties as judges in the United States district courts with reference to comments upon the evidence; the wisdom and purpose of the rule was for us to determine; it was unanimously adopted, pursuant to what we believed to be our right and duty; we thought it to be a step forward in keeping with modern ideas of practice and procedure, and, by it, we intended to advise the profession that, in this respect, they might thereafter expect trials to be conducted in the state courts the same as they were conducted in the United States district courts. If we have failed in this purpose, it is because the imperfections of the English language preclude a more definite, certain, and comprehensive statement of the rule, and until some one more adept in its use submits a rule more clearly expressing and defining the intention of those who promulgated it, we must ask the profession to accept and use it in its present form. The only objection to our rule comes from those who doubt its wisdom; from those who are loath to see any advance in procedural methods in the trial courts, and when the rule is challenged as indefinite and uncertain, may it not be supposed that the real objection is to the rule itself, rather than a criticism of the language in which it is couched. It should be noted that some of the ablest writers of today approve and commend the practice and procedure which our rule permits. See: The Law of Evidence, Wigmore et al., 1927; Journal of the American Judicature Society, June, 1930, p. 8; Illinois Law Review, Vol. 23, p. 276; American Bar Association Journal, Vol. 12, p. 599; Harvard Law Review, Vol. 34, p. 424.

In other portions of this opinion reference is made to the "common law of England" as it was adopted by our territorial and state legislatures, and it should be noted from the act itself that the language used in adopting this "common law" is little longer than the rule under discussion, and yet it covers a subject infinitely greater in its scope; affecting more rights, and called into almost daily use by our profession, and no one has yet seriously objected to it as indefinite and uncertain, and its scope, so far as we are advised, has never been challenged, nor have serious controversies arisen as to its intent and meaning.

It cannot seriously be questioned that the rule (the term being used as hereinbefore defined) in the federal district courts permits comments by the trial court upon the evidence.

In Carver v. Jackson (Astor). 29 U.S. 1, 79 (4 Pet. 1), Mr. Justice Story, in determining the right to do so, said: "With the charge of the court to the jury, upon mere matters of fact, and with its commentaries upon the weight of evidence, this court has nothing to do. Observations of that nature are understood to be addressed to the jury, merely for their consideration, as the ultimate judges of matters of fact; and are entitled to no more weight or importance than the jury, in the exercise of their own judgment, choose to give them. They neither are, nor are they understood to be, binding upon them, as the true and conclusive exposition of the evidence."

In Smith v. Carrington, 4 Cranch (U.S.) 62, 71, Mr. Chief Justice Marshall, in speaking of an exception to the refusal of a trial judge to charge on the evidence, said: "There can be no doubt of the right of a party to require the opinion of the court on any point of law which is pertinent to the issue, nor that the refusal of the court to give such opinion furnishes cause for an exception; but it is equally clear that the court cannot be required to give to the jury an opinion on the truth of testimony in any case."

In Vicksburg Co. v. Putnam, 118 U.S. 545, 553,7 Sup. Ct. 1, Mr. Justice Gray, in disposing of an exception to the trial court's comments on the evidence, which comments are particularly forceful and amount almost to the direction of a verdict, makes this interesting observation upon the practice in the federal courts: "In the courts of the United States as in those of England, from which our practice was derived, the judge, in submitting a case to the jury, may, at his discretion, whenever he thinks it necessary to assist them in arriving at a just conclusion, comment upon the evidence, call their attention to parts of it which he thinks important, and express his opinion upon the facts; and the expression of such an opinion, when no rule of law is incorrectly stated, and all matters of fact are ultimately submitted to the determination of the jury, cannot be reviewed on writ of error."

In 7 Enc. U.S. Supreme Court Reports, p. 28, it is said: "It is the usual practice for the presiding judge at a nisi prius trial, in his charge to the jury, to take up the facts and circumstances in proof, explain their bearing on the controverted points, and declare what are the legal rights of the parties arising out of them."

At page 50, Id., after quoting verbatim the language of Mr. Justice Gray in Vicksburg Co. v. Putnam, supra, it is said: "And this rule applies both in civil and criminal cases. But there is no rule that compels the court, in making such statement, to recapitulate all the items of the evidence, nor even all bearing upon a single question. There are, however, limitations on the power of a federal court, in commenting on the facts of a case when instructing a jury; limitations inherent in and implied from the very nature of the judicial office."

At page 49, Id., the author has this to say with reference to the practice in the state courts: "In some of them [state courts] the court neither sums up the evidence in a charge to the jury nor expresses an opinion upon a question of fact. Its charge is strictly confined to questions of law, leaving the evidence to be discussed by counsel, and the facts to be decided by the jury without commentary or opinion by the court. But in most of the states the practice is otherwise; and they have adoptedthe usages of the English courts of justice, where the judge always sums up the evidence, and points out the conclusions which in his opinion ought to be drawn from it; submitting them, however, to the consideration and judgment of the jury."

In Wharton's Criminal Procedure (10th Ed.), vol. III, p. 2176, § 1736, it is stated: "A judge has a right to express his opinion to the jury on the weight of evidence, and to comment thereon as much as he deems necessary for the course of justice, and an erroneous opinion on matter of fact, it is said, expressed by the judge in his charge, is no ground for new trial, unless the jury are thereby led to believe that such fact was withdrawn from their consideration."

The extent to which a trial judge may go in commenting on the evidence is set forth in Cook v. United States,18 F.2d 50, 52, wherein it is said: "* * * we think the line of demarcation between what a court may say to the jury in a criminal case in expressing his opinion on the facts, and what he may not say, is to be drawn between mere expression of opinion not partaking of such argumentative nature as to amount to advocacy, leaving to the jury absolute freedom to determine the facts, and such discussion as amounts to an argument and makes the court in fact an advocate against the defendant. A trial judge is not merely a moderator or umpire; neither is he an advocate."

For recent cases illustrating the extent to which a trial judge may comment upon the evidence, see: Buchanan v. United States, 15 F.2d 496, 497; Morris v. UnitedStates, 19 F.2d 131, 133; Egan v. United States,22 F.2d 776, 778; Eddington v. United States,24 F.2d 50, 51. See also: Reynolds v. United States, 98 U.S. 145,167, 25 L. Ed. 244. See also: Starr v. UnitedStates, 153 U.S. 614, 624, 14 Sup. Ct. 919, for the rule and interpretation thereof.

Counsel for defendant call our attention to the recent case of Bogileno v. United States, 38 F.2d 584, 587, where the trial court was reversed because of comments. In that case, Bogileno was being tried for bribery, and the only question in dispute was the intent with which the plaintiff in error paid the money. The trial court in its comments said: "The question is that this defendant, having been arrested and in the custody of the government — whether he offered this bribe to induce them to drop the charges or not to appear as witnesses against him. The evidence on that point is that he gave the officers, after a discussion with them, $400. He admits he gave them money. He admits he gave it for that purpose,so there can hardly be a dispute about that fact. * * * In this case as I see it there is very little dispute in the evidence. He admits he gave the money, and gave themoney for the purpose of bribery." (Italics ours.)

The Circuit Court of Appeals, in an opinion by Judge Lewis, in reversing the judgment, said, in part: "The instructions were brief, covering less than two pages, and we cannot believe that these two excerpts failed to impress the jury. In substance they seem to us to be equivalent to an instruction to find the defendant guilty, which is beyond the right and authority of the court to do. It was the exclusive duty of the jury to determine whether he gave the $400 to induce the agents to drop the charges or not to appear as witnesses against him. He did not admit that he gave it for that purpose,or for the purpose of bribery. He testified that he gaveit for another purpose. The purpose he assigned may have impressed the court as unreasonable and even unbelievable, but the court could not pass upon that. It was a question for the jury. The question of his intent was an issue of fact, and not of law, for the jury's determination. The conclusion that the excerpts were prejudicial to the defendant cannot be escaped." (Italics ours.)

It will be observed that, in the Bogileno case, supra, the appellate court determined that the judge's statement of facts, and his comments thereon, were incorrect, and that the comments were tantamount to a direction to the jury to find the defendant guilty.

In Leslie v. United States, 43 F.2d 288, 289, the comments which necessitated a reversal were, in part: "It seems to me, gentlemen, that this defendant is guilty of this crime; it seems to me that he has put up a defense here that will not hold water under this evidence."

[8] We have found many federal cases approving language much more emphatic and drastic than in the instant case. The comments of the trial judge were very brief. Perhaps a more detailed and explicit resume or recapitulation of the evidence would have been more helpful to the jury, but this is a matter of which the defendant cannot complain. Comments are to be made in the discretion of the trial court.

In Horning v. District of Columbia, 254 U.S. 135,41 Sup. Ct. 53, although there was little, if any, dispute as to the facts, the following comments were approved. "In conclusion I will say to you that a failure by you to bring in a verdict in this case can arise only from a wilful and flagrant disregard of the evidence and the law as I have given it to you, and a violation of your obligation as jurors. * * * Of course, gentlemen of the jury, I cannot tell you in so many words to find defendant guilty, but what I say amounts to that." In determining this case, and with reference to these comments, Mr. Justice Holmes said, in part: "Perhaps there was a regrettable peremptoriness of tone — but the jury were allowed the technical right, if it can be called so, to decide against the law and the facts — and that is all there was left for them after the defendant and his witnesses took the stand. If the defendant suffered any wrong it was purely formal since, as we have said, on the facts admitted there was no doubt of his guilt."

In 16 C. J. 939, section 2308b, we find: "At common law, and in the absence of any constitutional or statutory restrictions, the trial court may, in its charge to the jury, comment on the evidence or express an opinion on disputed questions of fact, provided such questions are ultimately left to the jury for their decision, without any direction or advice as to how they shall find the facts; and this practice prevails in the federal courts. Where this practice prevails the opinion of the court properly may be expressed, either directly or inferentially, and the extent to which the court may discuss the evidence in submitting the case is generally within its sound discretion. Even strong expressions of opinion will be upheld, unless they amount to a binding instruction or a positive direction to find one way or the other. But the greatest caution should be used in the exercise of this power, and the jury should be left free and untrammeled in the determination of questions of fact which are to be passed on by them; and the court should not charge, as a matter of law, that a particular fact is or is not proved, even though the evidence is clear and uncontradicted."

Before the adoption of rule 14b, neither by the Constitution nor statute, were trial judges prohibited in our state from commenting upon the evidence, but there is direct authority for permitting them to do so. An act of our territorial legislature, adopted and approved on October 11, 1861, provided that the common law of England, as it existed prior to the fourth year of the reign of James I, with exceptions not herein important, was to be considered in full force and effect until repealed by the legislature. This act was adopted upon our admission to statehood, and re-enacted as section 156, General Laws of Colorado, 1877. It remains unchanged to this day, and is found as section 6516, C. L. 1921. "James the I. was proclaimed king of England on the 24th of March, A. D. 1603." Green v. People, 3 Colo. 68, 69.

In 1861, the territorial legislature adopted and approved section 145, p. 321, Statutes of Colo., 1861, reading: "Section 145. All trials for criminal offenses shall be conducted according to the course of the common law, except when this act points out a different mode, and the rules of evidence also of the common law shall, unless changed by this act, be binding on all courts and juries in criminal cases."

This section was adopted by our first legislature (section 821, G. L. 1877) and, with the exception of an amendment, not herein important (Session Laws 1925, p. 227), is re-enacted as section 7099, C. L. 1921.

A search of the statutes of this state reveals that neither of the last two mentioned sections has been repealed, and, therefore, we must determine the common law procedure prior to the fourth year of the reign of James I. It was: "When the evidence is gone through on both sides, the judge, in the presence of the parties, the counsel, and all others, sums up the whole to the jury; omitting all superfluous circumstances, observing wherein the main question and principal issue lies, stating what evidence has been given to support it, with such remarks as he thinks necessary for their direction and giving them his opinion in matters of law arising upon that evidence." Cooley's Blackstone, book III, p. 376.

The right of a trial judge to comment upon the evidence was recognized and authorized at common law, and in adopting the common law, section 7099, C. L. 1921, we necessarily adopted that part thereof applicable to the trial of criminal cases. So far as we can determine, there is no statute inferentially or directly prohibiting comments upon the evidence. Experience has demonstrated that such practice has resulted in a much more successful and satisfactory administration than heretofore obtained in our state courts. See: The Law of Evidence, Wigmore et al., Appendix A.

It may be said that cases have been reversed repeatedly by this court because of the comments and remarks concerning the evidence, inadvertently made by the trial judge during the course of the trial, and while this is true, it is also well to remember that the right to do so has never been defended or justified as a common law right, and, therefore, this court has never directly passed upon the question in the light of the common law, and section 7099, C. L. 1921. Irrespective of our rule 14b, so long as section 7099, C. L. 1921, remains upon our statute books, the right to comment upon the evidence is granted our trial judges.

[9, 10] It may be said that the comments should be reduced to writing and submitted with other written instructions, and that counsel should be given the same opportunity of objecting thereto as to written instructions. The answer is that such comments are advisory; in no respect binding upon the jury, and hence are not instructions. Therefore, they need not precede the arguments nor be reduced to writing. "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." Wickham v. People, 41 Colo. 345, 351,93 P. 478. Sections 7104 and 7105, C. L. 1921, expressly provide for written instructions covering the law in the case. There is nothing in the above sections pertaining to the comments on the evidence which of necessity concern the facts of the case rather than the law. To suggest that comments should be written and submitted to the jury with its instructions would result in unprecedented, novel, confusing, and pernicious practice; such has never been the practice, either in our federal or English courts, where comments are made orally after the arguments of counsel.

[11] It may be said that since our rule became effective on September 1, 1929, it could not have any application to the trial for a crime committed prior to the date upon which it came into force and effect, and that to permit its use under these circumstances would be violative of the United States and Colorado Constitutions, with reference to ex post facto laws (Constitution of the United States, article 1, sections IX and X, and Constitution of the state of Colorado, article 2, section 11.) In our jurisdiction the question of ex post facto laws is discussed at length in Garvey v. People, 6 Colo. 559, 45 Am.Rep. 531, in which case support and authority is found in Kring v. Missouri, 107 U.S. 221, 2 Sup. Ct. 443, and from which latter case considerable of the opinion is quoted. In the Garvey case, supra, there were two, and only two, propositions urged by defendant's counsel, and the determination of the case must be read and understood in the light of these propositions, which were: "That after the commission of the alleged offense and before trial, the law applicable to such cases was soamended as to change the rule of evidence and increasethe punishment." and "That the law under which the offense was committed was repealed before trial, without a saving clause, and there was no law in existence when the trial was had against which the defendant had offended." In the decision in the Garvey case, supra, this court said: "this law [amended statute] deprived the prisoner of a right of defense existing in his favor at thetime of the commission of his crime, which, if employed,would have saved his life. This right did not exist at the time of the trial, and the people, whose representatives had taken it away, could not be heard to say that the prisoner would not have availed himself of it." The facts in the Garvey case, supra, in the light of the discussion in the opinion, and the law announced with reference thereto, clearly distinguish it from the case at bar, and justify the statement that it can have no application to the case under consideration herein. The Kring-Missouri case, supra, is so easily distinguished from the case at bar that little need be said with reference thereto except to call attention to the fact that it has recently been discussed and distinguished by the Supreme Court of the United States in the cases of Beazell v. Ohio and Chatfieldv. Ohio, 269 U.S. 167, 46 Sup. Ct. 68. Beazell and Chatfield were jointly charged with a crime, and moved for separate trials under the provisions of an Ohio statute effective at the time of the commission of the offense which, by its terms, granted separate trials as a matter of right, upon motion. Subsequent to the commission of the offense, but prior to the trial therefor, the statute granting separate trials as a matter of right was amended so that thereafter the granting of separate trials should be discretionary with the trial judge. Defendants' motions were denied, and the defendants contended that this denial was error, because the amended statute was an ex post facto law, violative of the provisions of article 1, section 10, of the Constitution of the United States, providing that: "No state shall * * * pass an * * * ex post facto law, * * *." In discussing and disposing of this contention, the Supreme Court, in an opinion by Mr. Justice Stone, distinguished the Kring-Missouri case, supra, stating:

"Expressions are to be found in earlier judicial opinions to the effect that the constitutional limitation may be transgressed by alterations in the rules of evidence or procedure. See Calder v. Bull, 3 Dall. 386, 390; Cummingsv. State of Missouri, 4 Wall. 277, 326; Kring v. Missouri,107 U.S. 221, 228, 232. And there may be procedural changes which operate to deny to the accused a defense available under the laws in force at the time of the commission of his offense, or which otherwise affect him in such a harsh and arbitrary manner as to fall within the constitutional prohibition. Kring v. Missouri, 107 U.S. 221;Thompson v. Utah. 170 U.S. 343. But it is now well settled that statutory changes in the mode of trial or the rules of evidence, which do not deprive the accused of a defense and which operate only in a limited and unsubstantial manner to his disadvantage, are not prohibited. A statute which, after indictment, enlarges the class of persons who may be witnesses at the trial, by removing the disqualification of persons convicted of felony, is not an ex post facto law. Hopt v. Utah, 110 U.S. 574. Nor is a statute which changes the rules of evidence after the indictment so as to render admissible against the accused evidence previously held inadmissible. Thompsonv. Missouri, 171 U.S. 380; or which changes the place of trial, Gut v. The State, 9 Wall. 35; or which abolishes a court for hearing criminal appeals, creating a new one in its stead. See Duncan v. Missouri, 152 U.S. 377, 382.

"Just what alterations of procedure will be held to be of sufficient moment to transgress the constitutional prohibition cannot be embraced within a formula or stated in a general proposition. The distinction is one of degree. But the constitutional provision was intended to secure substantial personal rights against arbitrary and oppressive legislation, see Malloy v. South Carolina,237 U.S. 180, 183, and not to limit the legislative control of remedies and modes of procedure which do not affect matters of substance. See Gibson v. Mississippi, 162 U.S. 565,590; Thompson v. Missouri, supra, 386; Mallett v.North Carolina, 181 U.S. 589, 597.

"The legislation here concerned restored a mode of trial deemed appropriate at common law, with discretionary power in the court to direct separate trials. We do not regard it as harsh or oppressive as applied to the plaintiffs in error."

[12, 13] We do not, however, wish to be understood as saying that our right to make rules of procedure is granted or limited by section 444, Code of Civil Procedure, 1921. Aside from any common law right or statutory grant, the power to make rules of procedure is our constitutional right. Section 1, article VI, of the Constitution of the state of Colorado, provides that the judicial power of the state shall be vested in the courts; section 2 charges this court with "a general superintending control over all inferior courts," and article III of the same Constitution provides that the government shall be divided into three departments, of which the judicial is one, and also provides that neither department shall exercise any powers properly belonging to the other, except as in the Constitution expressly directed or permitted. A search of the Constitution warrants the statement that there is no provision therein expressly directing or permitting the legislative or executive departments to make rules with reference to trial procedure in the judicial department of the government. We are not called upon to determine what right and power the legislative department possesses, with reference to procedure in acquiring jurisdiction of the person or subject matter, but the question with which we are concerned is the right, irrespective of the statutes and the common law, but in conformity with constitutional provisions, to make rules with reference to procedural matters for the conduct of trials. This is inherent in the judicial department. See: 12 C. J. 1103; 6 Rawle C. L. 294; 1 Cooley's Constitutional Limitations (8th Ed.) 541-554; 23 Illinois Law Review, 276; Journal American Judicature Society, December, 1929; State v. Superior Court, 148 Wash. 1, 267 P. 770.

The most nearly complete bibliography upon the subject of the rule making power of courts is to be found in 16 American Bar Association Journal, p. 199 et seq. See also: Walton v. Walton, 86 Colo. 1, 20; 278 P. 780;Ernst v. Lamb, 73 Colo. 132, 133, 213 P. 994.

[14] The judicial power of the state is vested in the courts; the legislative and executive departments are expressly forbidden the right to exercise it, and the courts, charged with the duty of exercising the judicial power, must necessarily possess the means with which to effectually and expeditiously discharge that duty; this duty can be performed and discharged in no other manner than through rules of procedure, and consequently this court is charged with the power and duty of formulating, promulgating, and enforcing such rules of procedure for the trial of actions as it deems necessary and proper for performing its constitutional functions. In our scheme of government, the responsibilities thereof are presumably equally divided, and each department must perform its own tasks, and accept the responsibilities therefor. If we assume that for many years the courts have surrendered, to a certain extent, the rule making power to the legislative department, and if we assume that such a practice, over a long period of time, gave validity to the exercise of that function by the legislative department, or that the legislative statutes upon the questions of procedure, and the enforcement of those statutes by the courts, amounted to an adoption thereof by the courts of such statutes as rules of court, all has now been set at rest by the solemn act of the legislature in passing a statute recognizing the constitutional power of the courts to make its own rules for its own procedure.

[15] This rule is merely a pronouncement of the existing law — in nowise interfering with any constitutional right of a defendant — and, if properly used, will have the salutary effect of assisting in the just determination of cases.

It may be said that juries are very susceptible to, and influenced by, remarks and comments of a trial judge. This is not complimentary to men who are under oath and instructions to find according to the law and the evidence, but, assuming the premise, this cannot be urged in the instant case, because there were two defendants on trial, and the force of the trial judge's comments was directed equally towards both, yet the jury found one guilty, and failed to agree as to the guilt of the other.

For good cause appearing, it is further ordered that the period of defendant's incarceration under his said sentence begin to run from January 1, 1931.

Judgment affirmed.

MR. JUSTICE BUTLER and MR. JUSTICE HILLIARD dissent.