Ausmus v. People

Mr. Justice Campbell

specially concurring:

I concur in the affirmance of the judgment. If it can be justly said that the answer which Mr. Justice White in his opinion makes to the objections interposed to instruction No. 21 is not based on tenable grounds — as to which no opinion is here expressed *205 —yet, if it be illogical, the same result, that prejudice to defendants did not result, may be reached by another line of reasoning which commends itself to my judgment. If under the doctrine announced by this court in Fincher v. People, 26 Colo. 169 ; Van Straaten v. People, same 184; and Nilan v. People, 27 Colo. 206 , the instruction considered as a whole is to be taken as a comment upon the evidence, or was calculated to induce the jury to believe that the court meant them to understand that such acts and statements should be regarded by them as true, or, as matter of law, that they should have weight with the jury in their deliberations without reference to what the jury, as matter of fact, thought about them, then it is probably true, and I am inclined to that view, that harm was done to the defendants. But if the instruction was not intended by the court as a comment upon the evidence and was not so understood by the jurors, defendants cannot complain of it. Let us analyze this instruction: In it the court was considering the general subject of conspiracy. The general rule is that acts and statements of one party are not competent evidence against a co-party, except in cases of identity of interest, as by agency, conspiracy or common design. There was evidence in this case tending to prove a conspiracy of defendants with other parties, and of acts and statements of one of them, against interest, in furtherance of the conspiracy. The trial court in this instruction was merely declaring in abstract terms the law concerning the admissibility of the declarations and conduct of one conspirator, pointing out when it is to be taken against the one and when against all. The court, then, though there may have been no necessity therefor, stated to the jury the rule of law by which it was governed in admitting evidence of this character, *206 and said, in effect, that this rule required its reception because of the presumption of its truth. This language, however, in the connection in which it is employed, and upon the subject to which the court was speaking, is not equivalent to a comment on the weight which the jury is to give to the conspirators’ acts and statements after they are admitted in evidence, by the court. Probability is lent to this conclusion, that the court was speaking only of the admissibility, and not the weight, of this evidence, and that the jury so understood, by the fact that in instruction No. 27 the court proceeded to apply the law on this subject to the facts of the case in such a way as clearly to indicate to the jury that they must find the facts for themselves and give them the weight they thought they ought to have. Elsewhere in the charge and in instruction No. 28, by appropriate instructions, the jury were told that they were the “sole judges of the credibility of the witnesses and of the weight of the evidence and the facts established by the evidence,” which, of course, includes statements and admissions of the alleged conspiracy. The most that can be said in behalf of plaintiffs in error is that the court might well have expressly added the caution to the jury that the presumption referred to in the instruction was one by which the court was governed in the admissibility of evidence. Of this non-direction, however, defendants may not complain in the absence of a request therefor. To sum up, the court did not comment upon the weight of evidence. The legal presumption mentioned was one which the jury must have understood, for the reasons already given, as applicable only to the function of the court in its ruling upon the competency and admissibility of evidence and not to that of the jury in passing on its weight and sufficiency.