ARCHIE Miller was charged with the larceny of one calf. He was found guilty and was sentenced to imprisonment in the penitentiary. He seeks a reversal of the sentence.
One E. M. Odell testified, in substance, as follows: Odell and Miller entered into an agreement, whereby Odell was to steal, at a farm designated by Miller, two calves and deliver them to Miller at a certain sand and gravel pit located off the road and about three miles from Wray. The pit was on land owned by Miller's father, and was directly across the road from the house in which Miller and his father lived. Miller was to pay Odell for the calves. If either was arrested, he was to take the blame. Odell stole the calves, put them on a trailer (also stolen by him), took them to the appointed
place, arriving at about 1 o'clock at night, turned off his automobile lights, and thereupon Odell, Miller and a man whom we will call A (who, according to the evidence, was an ex-convict) transferred the two calves to Miller's truck, and Odell received the money that Miller had promised to pay. At Miller's request, Odell signed receipt for the money. Odell then drove from the pit towards the main highway and was arrested by the sheriff, and immediately thereafter the sheriff arrested Miller.
The sheriff testified that on the night in question he followed an automobile truck driven by Miller; that Miller drove past the gravel pit; that the sheriff and his deputies stopped at the gravel pit "to look the place over" and sent their automobile back to town; that in about half an hour or longer Miller returned, drove off the road, stopped at the gravel pit, and turned off the truck lights; that at about 1 o'clock at night the witness saw Odell and A transfer the calves to Miller's truck; and that he then arrested both Odell and Miller.
Miller testified substantially as follows: Miller agreed to buy two calves from Odell. Miller wanted the calves delivered at the home of his father, but Odell insisted upon delivering them at the sand and gravel pit. At about 10 o'clock at night Miller started for the pit, but "inadvertently" drove a considerable distance past it. He returned and went to the pit. Odell was not there. Miller turned off his lights and went to sleep. At about 1:15 o'clock Odell and A arrived with the calves, and Odell, Miller and A transferred them to Miller's truck, and Miller paid the money he promised to pay. When Miller was about to leave the gravel pit with the calves, he was arrested. Miller denied that he agreed to be a party to the theft of the calves, and denied that he knew that the calves were stolen. He said that he had often worked days and nights in his business, and did not think the time or place of delivery unusual, in view of Odell's statements to him.
[1] 1. The most important question raised is whether or not the court erred in denying the application for a new trial, based upon newly discovered evidence. Such applications are addressed to the sound discretion of the trial court, and, unless there has been an abuse of that discretion, an appellate court will not interfere with the action of the trial court. ColoradoSprings I. Ry. Co. v. Fogelsong, 42 Colo. 341,94 Pac. 356; Blass v. People, 79 Colo. 555, 247 Pac. 177. Was the court's discretion abused in the case at bar?
In support of the motion for a new trial there were presented to the court several affidavits. Some of them related to unimportant statements said to have been made by A, who did not testify; others related to a supposed "frameup," a matter referred to in another part of this opinion; and one related to an alleged separation of the jury. We shall confine our attention to those only that merit consideration. The affidavit of Ray Bell was to the effect that, after the sentence, Odell made to the witness a statement substantially as follows: That Odell had agreed to sell the calves in question to Miller; that Miller had nothing to do with stealing them, but was merely going to buy them; that the reason Odell had fixed up the story he told on the witness stand was because he had an understanding that if he would place the blame on Miller, he (Odell) was to be made a trusty and would receive a light sentence if Miller were convicted. Miller's mother made an affidavit to the effect that after Miller was sentenced she was in the jail lobby and heard Miller ask Odell why he had made so many false statements at the trial, and that Odell said that "they" told him that if he would swear that he took one calf and that Miller took the other "they" would make him a trusty and let him off easy, and that he "agreed to go through with it." Miller, in his affidavit, swore that after he was sentenced Odell told him that he (Odell) had to tell the story he told upon the witness stand, because "he was promised to be made a trusty and would
get off easy" if he connected Miller with the cattle stealing. Foster Cline, who was employed in the case by Miller's father after sentence was pronounced, made an affidavit to the effect that he had interviewed each of the persons who made the foregoing affidavits, and that, in the event of a new trial, all of them would testify that Odell made the statements appearing in the affidavits.
[2] According to the affidavits, Odell contradicted, or repudiated, the statements made by him under oath. In effect, he recanted, but not under the solemnity of an oath. In Blass v. People, supra, we quoted with approval the following statements in the opinion in People v. Shilitano,218 N. Y. 161, 112 N.E. 733: "There is no form of proof so unreliable as recanting testimony. In the popular mind it is often regarded as of great importance. Those experienced in the administration of the criminal law know well its untrustworthy character." In Ives v.People, 86 Colo. 141, 158, 278 Pac. 792, we again quoted that statement with approval. In Quinn v. People,60 Colo. 217, 152 Pac. 148, a witness for the people recanted, and we upheld the action of the trial court in denying the application for a new trial.
The newly discovered evidence is subject to another weakness that merits consideration. Odell made no affidavit, and there is no showing that at a second trial his testimony would be any different from that given by him at the first trial. At a second trial the affiants would not, in the first instance, be permitted to testify that Odell had made the statements appearing in the affidavits. Such testimony would be inadmissible, unless Odell testified as he did before, and then it would be admissible, not as substantive evidence, but only by way of impeachment of Odell's credibility by showing contradictory statements made by him out of court. In Christ v. People,3 Colo. 394, 396, we said: "It is a well-settled rule that newly discovered evidence going only to impeach the credit or character of a witness is not sufficient ground for a new trial. * * * The exceptions to this rule are
rare." In Beals v. Cone, 27 Colo. 473, 493, 62 Pac. 948, we said: "Newly discovered evidence which only goes to impeach the credit or character of a witness, is not sufficient ground for a new trial, except it is clear that such impeachment would have resulted in a different verdict." In Colorado Springs I. Ry. Co. v. Fogelsong,supra, we said that ordinarily to warrant the granting of a new trial on the ground of newly discovered evidence, one of the requirements is "that it does not merely tend to impeach or contradict the former evidence, except it may be in cases where it clearly appears that it would probably change the result in case of a new trial." And in Edwards v. People, 73 Colo. 377, 395, 215 Pac. 855, where the question of cumulative evidence was involved, we said: "Courts will see to it that there is not a miscarriage of justice, and are sometimes indulgent in their requirements as to a showing of newly discovered evidence, if they are impressed with the conviction that there has been a miscarriage of justice, even if the newly discovered evidence be incidentally impeaching in its nature and merely cumulative, when satisfied that there is probable cause that the result would be different as the result of such testimony." It may be noted that the trial court's denial of the application for a new trial in that case was upheld. The newly discovered evidence in the present case is not "incidentally," but directly, impeaching; it could be used for no purpose other than that of impeachment. We do not take the view that there has been a miscarriage of justice in this case.
[3] In considering whether or not the trial court abused its discretion in denying the motion for a new trial on the ground of newly discovered evidence, the affidavits should be considered in connection with the testimony given at the trial, in order to determine whether, in the event of a new trial, the newly discovered evidence probably would change the result. Miller admitted at the trial that he had agreed with Odell in advance to buy the calves. Bell's affidavit was to the effect that Odell
stated that Miller was going to buy the calves, and had nothing to do with stealing them. It was not stated that, at the time the agreement was made, it was not contemplated by both parties that Odell was to steal the calves. If one agrees in advance to buy stolen property, knowing that the property is to be stolen, he thereby encourages the perpetration of the theft, and, if the crime is committed, he is "deemed and considered as principal and punished accordingly." C. L. § 6645. The statement that Miller had nothing to do with stealing the calves may well be considered as the expression of an opinion, commonly entertained by laymen, that one who does not actually take the property, but only advises or encourages another to do so, is not guilty of larceny. The Bell affidavit and the affidavits made by Miller and his mother were not of such a character as to explain satisfactorily the undisputed facts disclosed at the trial. Odell was to transfer the possession of two calves to Miller just after midnight at the gravel pit in an out-of-the-way place off the traveled road. Miller went to the pit and turned off his truck lights. At 1:15 o'clock at night Odell and an ex-convict arrived at the pit with the calves. Odell then turned off his automobile lights, and then, all automobile lights having been turned off, the calves were transferred by Odell, Miller and the ex-convict from Odell's trailer to Miller's truck. Miller's testimony to the effect that he had often worked days and nights in his business, and that he did not think the time or place of delivery "unusual," was not likely, in view of all the circumstances, to make a favorable impression upon the jury. They evidently took the view that, whatever may have been Miller's custom, it was not only unusual, but theretofore unheard of, for a man to purchase calves at such a time and at such a place, and unbelievable that an honest man would do so. Miller testified that when he passed the pit and drove a considerable distance beyond, he did so "inadvertently." But as the pit was directly across the road from Miller's home and there was a bridge crossing
the road at that place, which naturally would attract attention, the jury might well have considered that explanation as incredible, and concluded that Miller drove past the pit in order to assure himself that the road was clear of travelers who might interfere with his criminal purpose to participate in the theft of his neighbor's calves.
Our attention is called to Graff v. People, 65 Colo. 489,177 Pac. 962. But in that case the showing made was free from the infirmities that are present in the showing in this case. The newly discovered evidence in that case was not recanting evidence, nor was it merely impeaching evidence, but was strong substantive evidence tending to show that the crime was committed, not by the defendant, but by the principal witness for the people.
[4, 5] Counsel for Miller quotes the following language in the opinion in Whipp v. People, 78 Colo. 134,138, 241 Pac. 534: "* * * if the newly discovered evidence is of such a character as to make it appear that the verdict was probably influenced by false testimony and that upon another trial the result would probably or might be different, or even doubtful, then a new trial should be ordered." In one respect, that language went beyond the requirements of that case and stated the rule too broadly. It is not the law that a new trial "should" be ordered if the newly discovered evidence is of such a character as to make it appear that upon another trial the result "might be different, or even doubtful." Ordinarily, a motion for a new trial based on the ground of newly discovered evidence is regarded by courts with disfavor.Ives v. People, supra; Edwards v. People, supra;Blass v. People, supra; Eachus v. People, 77 Colo. 445,236 Pac. 1009. And to sustain such a motion, the court should be satisfied that, because of the newly discovered evidence, it is probable that the result would be different.Ives v. People, supra; Edwards v. People, supra; Lowellv. Hessey, 46 Colo. 517, 105 Pac. 870. Where, as in the case at bar, the newly discovered evidence goes only to impeach the credit of a witness, we said, in Beals v. Cone, supra, that it is not sufficient ground for a new trial, unless it is "clear" that such impeachment would result in a different verdict. From the opinion in ColoradoSprings I. Ry. Co. v. Fogelsong, supra, it would seem that newly discovered impeaching evidence would not warrant a new trial, unless it "clearly appears that it would probably change the result in case of a new trial." In our opinion, this is the correct rule.
We cannot say that the trial court abused its discretion in denying the motion for a new trial on the ground of such newly discovered evidence.
2. The contention that Miller's arrest and conviction were brought about by what counsel calls a "frameup," that is to say, a conspiracy between "a certain law-enforcing official" and others, to have the crime perpetrated and to connect Miller therewith, is devoid of merit. The affidavits presented to the trial court in support of the application for a new trial on this ground were wholly insufficient to entitle them to serious consideration.
[6] 3. It is said that counsel (not Mr. Cline) appointed by the court presented the case inefficiently at the trial.
The court did not give a cautionary instruction concerning the testimony of an accomplice, and counsel for Miller did not request such an instruction. It is said that such failure on the part of counsel proves his inefficiency. Such an instruction warns the jury of the danger of convicting a defendant upon the uncorroborated testimony of an accomplice, and that the evidence of an accomplice should be received with caution and regarded with suspicion. But in this case Odell's testimony was amply corroborated by the uncontradicted testimony of other witnesses, and in some important particulars by the testimony of Miller himself. The fact that no other witness testified to the conversation between Miller and Odell, wherein, according to the latter's testimony, it was agreed that the calves should be stolen, does not
mean that Odell's testimony was uncorroborated. Naturally, no third person was present during the conversation. To require corroboration of every part of the testimony of an accomplice would be, to quote Garrow, B., in Tidd's Trial, 33 How. St. Tr. 1483, "unnecessary and absurd." In 5 Jones, Commentaries on Evidence (2d Ed.), section 2218, it is said: "It is generally agreed that the matters in corroboration should relate to some portion of the testimony which is material to the issue, but need not extend to every material fact. * * * The corroborating circumstances should not merely tend to prove that an offense has been committed, but they should tend to identify the defendant as the criminal, or to show his connection with the offense. * * * But as corroboration, it has been held sufficient to show possession by the defendant of the goods alleged to be stolen. * * * Such admissions, declarations or conduct of the defendant as might excite suspicion also serve to corroborate the testimony of accomplices." Referring to the testimony of an accomplice, it is said in 1 R. C. L., p. 168: "That he need not be corroborated in every part of his testimony is obvious, since in such case his evidence would be unnecessary, the case being complete against the accused without it." In 1 Ency. Evidence, p. 109, it is said: "The testimony of an accomplice may be corroborated by proof of the possession of stolen property." See, also, 4 Wigmore, Evidence (2d Ed.), § 2059; 1 Wharton, Criminal Evidence (10th Ed.), § 442.
[7] In the circumstances, the fact that Miller's counsel did not request an instruction on the testimony of accomplices does not prove counsel's inefficiency within the meaning of the rule invoked by Miller's present counsel.
As another evidence of inefficiency, it is said that counsel's conferences with Miller before the trial were few and brief. In view of the fact that Miller admitted his presence at the pit around midnight, and that at that time and place the calves were transferred to Miller's truck by Odell, Miller and an ex-convict, and in view of the
further fact that Miller claimed, as his only defense, that that transaction constituted a purchase, which, he said, was consummated in a manner not unusual with him, we cannot say that often-repeated and long-extended conferences with Miller probably would have resulted in a verdict more satisfactory to Miller.
There are other instances of what are claimed to be evidence of inefficiency, but they, either separately or in connection with those just discussed, fall short of the showing necessary to justify the reversal of the judgment.
In Mandell v. People, 76 Colo. 296, 304, 231 Pac. 199, we said: "As a general rule mistakes of counsel are imputed to his client even in criminal cases. Doubtless there are some exceptions to this rule. * * * There may be extreme cases where the ignorance or dishonesty of counsel is so palpable that relief may be awarded in a motion of this nature but it cannot be given here." Nor can it be given in the present case, for the facts do not warrant it. The court appointed counsel selected by Miller himself. The one so appointed has been a member of the bar for many years, is experienced in the trial of cases, both civil and criminal, and the trial court found that appointed counsel did not try the case inefficiently. His omissions, such as they were, were not of such character as to warrant a reversal of the judgment.
4. It is contended that the court erred in not giving, on its own motion, certain instructions.
[8] (a) No cautionary instruction on the testimony of accomplices was requested, and the court did not give one on its own motion. In the circumstances, this was not reversible error.
[9] (b) It is said that the court did not instruct on the burden of proof. The court, after stating the material allegations in the information, gave this instruction: "The law presumes the accused to be innocent of the charge, and before you can convict the defendant the evidence must establish every material fact alleged in the
information beyond a reasonable doubt. If the evidence or lack of evidence upon any of said material facts leaves in your mind a reasonable doubt thereof, it will be your duty to return a verdict of not guilty. * * * you are not to find the defendant guilty if you entertain a reasonable doubt of such guilt," etc. That covered the question of burden of proof sufficiently to answer counsel's objection.
5. Counsel for Miller contends that certain instructions given by the court were erroneous. No objections thereto were made below; nevertheless, we will consider them.
[10] (a) It is contended that one instruction casts upon Miller the burden of explaining his recent possession of the stolen property, and comes within the ruling in Van Straaten v. People, 26 Colo. 184, 56 Pac. 905, which, it is said, holds such an instruction to be erroneous. The objectionable features of the instruction in that case are absent from the instruction in the case at bar. There, the jury were told, substantially, that recent possession of stolen property is a "strong criminating circumstance" tending to show that the possessors were guilty of stealing the same, unless the facts and circumstances "satisfy" the jury that the defendants came into possession honestly; and that if stolen property recently was found in the exclusive possession of the defendants, then this, "in law," would be a circumstance tending "strongly" to show that the defendants stole the property, unless the facts and circumstances in evidence "show" that they came into possession honestly. The instruction now before us is entirely different. In it, the jury are told that should the defendant fail to satisfactorily explain his recent possession of the property the jury "may" find him guilty, "provided the evidence in other respects warrants such finding;" and that if the jury believed from the evidence that the conduct of the defendant was inconsistent with innocence, it was incumbent upon the defendant to satisfactorily explain
such conduct, and if he failed to do so the "jury may draw such conclusions from the defendant's conduct as a reasonable and prudent man would draw in the light of such knowledge and experience as is common and general to mankind." The very expression "recent possession unexplained," occurring in the rule under consideration, indicates that such recent possession requires some explanation. It is not necessary that the explanation should be satisfactory to the jury; if it raises in their minds a reasonable doubt of the defendant's guilt, it is sufficient to require an acquittal. In other instructions — and all instructions must be taken together — the court made it plain that if the evidence or lack of evidence upon any of the material facts left in the minds of the jury any reasonable doubt of Miller's guilt, it was the jury's duty to return a verdict of not guilty. The explanation offered by Miller was of such a character that the jury might well have considered it incredible, and no doubt they did so consider it. While the instruction in question cannot be regarded as a model, it does not come within the ruling in the Van Straaten case, supra, and giving it was not reversible error.
[11] (b) The court instructed the jury that in determining the guilt or innocence of Miller, they had a right to take into consideration the manner, in which he came into possession of the property — the time, place and all surrounding circumstances, etc. Lowe v. People,76 Colo. 603, 234 Pac. 169, is relied upon to sustain the contention that such an instruction is improper in that it calls attention to certain circumstances in evidence. That case is not applicable here. There, the defendant requestioned the court to instruct the jury that certain circumstances in evidence might be considered by them in determining the question of defendant's guilt or innocence. We held that it was not the trial court's duty to call the jury's attention to all of the salient points in the evidence, and that it was not error to refuse such request.
While the instruction challenged here might well have been omitted, it was not prejudicial error to give it.
[12] 6. Complaint is made that the district attorney brought out evidence tending to show that there was another similar charge against Miller, without showing a conviction. On cross-examination of the sheriff, Miller's counsel asked why the sheriff had gone to the pit, and the sheriff said that he had reasons for watching Miller and his truck. Asked whether he had any complaint against Odell, the sheriff said that he had a couple of weeks before. Asked why he knew anything was going to happen there at the pit, he answered: "A. I didn't know for sure that there was, but I can tell you why I picked that place. It is a kind of a place there where on several other occasions I have had occasion to go down there and check up on other stuff. For instance, when the carnival was here this summer, there was a car stolen from up in front of Weaver's Quick Lunch here, taken out into that place and stripped. A little bit above there there's a road where they go in there and have booze parties, and one thing and another. I have business to go in there, have reasons to think that that would be a good inconspicuous place." That was the state of the record when, on redirect examination, the district attorney asked the following questions and the sheriff gave the following answers: "Q. Mr. Yates, you have testified that you observed the movements of Miller's car on the night of the 19th here at Wray? A. Yes. Q. Now was there any other reason for your watching him? A. Yes. Q. What was that? A. Well, that about thirty days before I was supposed to have to serve a warrant on Mr. Miller in another case. Q. Of the same kind and character? A. Yes. Q. And then in addition to the fact that you noticed these unusual movements [in town] that night you did have him under observation? A. Yes, sir." There was no objection to either the questions or the answers. Miller's theory was that the present prosecution was the result of a "frameup," or conspiracy, and
in cross examining the sheriff, Miller's counsel was seeking, no doubt, to support that theory. As he was the first to go into the question of the sheriff's reasons for going to the pit on the night in question, the redirect examination by the district attorney did not, in the circumstances, constitute prejudicial error entitling Miller to a reversal of the judgment.
[13] 7. It is suggested that the district attorney drew from the people's witnesses evidence of Miller's failure or refusal to make a statement to the officers after his arrest, and it is said that this course was improper and pernicious. But admittedly Miller, while in custody, did make statements concerning the transaction — not formal, written statements, it is true, but nevertheless statements. At the gravel pit, after his arrest, Miller stated that he bought the calves of Odell. He asked the sheriff if there was any way he could "fix the matter up," stating that if there was anything wrong, he wanted to "fix it up." He wanted to take the calves back to the owner. He asked the sheriff if he could not unload the calves at the sales pavilion or at the sheriff's barn. Asked why he wanted to do that, he stated that people would see them in his truck in the morning and he did not want them in there. On redirect examination, the district attorney asked the sheriff: "Now in regard to the conversations with Mr. Miller that [Miller's attorney] had asked about, did Mr. Miller talk to you freely about the case?" The answer was that he did not. Asked, "Did he refuse to make a statement about it?" he answered, "Yes." There was no objection made to the question. Indeed, it is argued here, as a point in his favor, that Miller made no incriminating statement. The note in 25 L.R.A. (N.S.), 558, relates solely to "uncontradicted statement in presence of accused as confession." It has no application here. In the circumstances, Miller is in no position to complain, and in our opinion the conduct of the district attorney did not tend to prejudice the substantial rights of Miller.
[14] 8. It is said that the sentence was for a longer term of imprisonment than the statute permits. The term was from three to five years. The contention is that, according to the evidence for the people, Miller was only an accessory after the fact, and that, under section 6646, Compiled Laws, the term of imprisonment cannot exceed two years. The trouble with this contention is that Miller was not an accessory after the fact, but was a principal and punishable as such. The sentence was not contrary to law.
9. There are other assignments, but evidently counsel does not have much confidence in them. It is sufficient to say that they are without merit.
[15] 10. The question of Miller's guilt does not depend wholly upon the nature of the preliminary conversation between Miller and Odell. The evidence justifies the conclusion that Miller's part in the transaction was more active than that of an accessory before the fact. Section 6719, Complied Laws, defines larceny as "the felonious stealing, taking and carrying, leading, riding or driving away the personal goods or chattels of another." Miller and Odell were caught in the very act of carrying away the chattels of another. Odell confessed the felonious character of the transaction, whereas Miller denied that his participation was felonious. Although Miller did not actually go with Odell into their neighbor's pasture to get the calves, he waited in a secluded place off the road to take the calves and carry them away in his truck, and was caught in the very act of doing so. The evidence satisfies us, as it did the jury, that Miller and Odell were cooperating in stealing the calves, each performing his agreed part in the transaction, and that they are equally guilty. That the calves were stolen was proved, not only by the testimony of Odell, but by the testimony of the owner. If all of Odell's testimony were eliminated, enough would remain to prove the theft of the cattle by Odell and Miller.
Neither the jury nor the trial judge entertained any
reasonable doubt of Miller's guilt; nor do we have any such doubt. Miller was tried fairly, convicted fairly, and received, a just sentence. The record discloses no reversible error.
The judgment is affirmed.
MR. JUSTICE BOUCK and MR. JUSTICE HILLIARD dissent.