# Kolkman v. People

> Supreme Court of Colorado · May 11, 1931 · 89 Colo. 8

URL: https://www.frixlaw.com/law-library/cases/9865054

## Case

- **Full name:** Kolkman v. the People.
- **Court:** Supreme Court of Colorado
- **Decided:** May 11, 1931
- **Citations:** 89 Colo. 8; 300 P. 575; 1931 Colo. LEXIS 244
- **Precedential status:** Published
- **Opinion:** Dissent by Butler
- **Judges:** Alter, Butler, Hilliaed, Bueke, Adams
- **Cited by:** 39 later opinions in the Frix Law Library

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## Opinion text

*35 Mr.. Justice Butler,
dissenting.
Prom the affirmance of the judgment, and from the holding that there was no error in the court’s oral comments to the jury on the evidence at the conclusion of the arguments to the jury, I am compelled to dissent.
At the trial the two Morrisons admitted their guilt, and by their own sworn testimony proved it beyond any reasonable doubt. After the court gave its written instructions to the jury and counsel had made their arguments, the court orally instructed the jury as set forth in the majority opinion. In the circumstances, that was equivalent to a statement that, in the opinion of the judge, the defendant was guilty, though leaving to' the jury the final determination of the question of the defendant’s guilt. The defendant’s counsel excepted to the giving of the instruction.
In 1913 the Legislature passed an act, being section 444 of our Code of Civil Procedure, conferring upon this court the power to prescribe rules of practice and procedure in all courts of record. In the exercise of the power thus conferred, we adopted rule 14b, effective September 1, 1929, which provides that, ‘ ‘ The rules governing comments by district judges on evidence shall be those now in force in the United States district courts.” Sections 6516 and 7099, C. L., quoted in the majority opinion, must be read in connection with section 28 of, the Practice Act of 1861, p. 282,-Session Laws of 1861, being section 28, p. 510, R. S. of 1868,- now section 7105, C. L., reading: ‘ ‘ The district court, in all cases, both civil and criminal. shallLonly instruct the petit jury as to the law of the case; ’’ and our decisions denying that the judge of the district court has power to express his opinion on the weight of the evidence, and even condemning questions asked by the court of a witness that “tended to induce in the minds of the jury a belief that, in the court’s opinion, defendant was guilty. ’ ’ Sopris v. Truax, 1 Colo. 89 ; Fincher v. People, 26 Colo. 169, 175 , 56 Pac. *36 902 ; Ryan v. People, 50 Colo. 99, 105 , 114 Pac. 306 ; Laycock v. People, 66 Colo. 441 , 182 Pac. 880 .
/ For the purpose of this case, the source of our power to make rules is not important. We now have the power, however we got it. The only question for consideration is whether the district judge properly exercised the power we conferred upon him by rule 14b.
What is the practice adopted by that rule? It'is the practice, permissible but in many cases not followed, for the federal district judge, in his instructions to the jury, not only to instruct on the law, but to sum up the evidence SO' as to refresh the recollection of the jury with reference thereto; take up the facts and circumstances in the evidence and explain their bearing on the controverted points; call the jury’s attention to the parts of the evidence that he thinks important, and to the relation of the various items of evidence to each other, and to the strength of the testimony of some witnesses, and the weakness of the testimony of others; and express his opinion as to the weight of the evidence, being careful, however, to caution the jury that such opinion is not binding on the jury. To do this properly requires industry and exceptional ability. When both are present, the practice is a valuable aid to the administration of justice; when either is absent, it is an obstruction rather than an aid. The instructions on the law, the summing up of the evidence, the comments thereon, and the expression of the judge’s opinion as to the weight of the evidence, all taken together, constitute the court’s instruction, or charge, to- the jury.
The practice just described is the practice with which federal practitioners are familiar; the practice that the bar supposed was adopted, and that in fact was adopted, by rule 14b. It'was not supposed that, instead of summing up the evidence and commenting thereon, as part of Ms instructions to the jury, a judge would orally say to the jury at the close of the arguments, £ £ Gentlemen, I am of the opinion that the defendant is guilty, but my opin *37 ion is not binding- upon you. ’ ’ In substance, that was tbe instruction given by tbe trial judge in this case.
In tbe majority opinion it is said, in effect, that comments on tbe evidence are not instructions and form no part of tbe instructions, and, therefore, need not conform to the requirements concerning instructions; and a definition is quoted from the opinion in Wickham v. People, 41 Colo. 345 , 93 Pac. 478 . Every opinion must be considered in connection with the facts. In the Wickham case the court orally withdrew from the jury’s consideration testimony relating to the reputation of the deceased, which testimony had been received upon the supposition that it would be rendered material and competent by testimony that was to be, but in fact was not, offered later in the trial. It was held that such withdrawal of evidence was not an instruction, and therefore need not be in writing. It was, of course, merely a ruling on the admissibility of evidence. In the opinion we defined an instruction on the law, the only kind of instruction at that time permitted in this state. The decision and the definition have no application to the present case.
At common law the judge instructs, or charges the jury on the law and on the facts. This is attested by the quotations in the majority opinion. In the C'ode of Criminal Procedure drafted by a committee of the National Crime Commission the common law practice is adopted. It says: “In the conduct of the trial, * * * the judge shall have the same powers as at common law. He shall instruct the jury as to the law applicable to the case1, and in said instructions may malee such comments on the evidence * * * as, in his opinion, the interests of justice may require.” Willoughby, Judicial Administration, 458. That practice was known to and recognized by our legislature when, in 1861, in the Practice Act, supra,-it permitted instructions on the law only, thereby forbidding- instructions on the facts. In Sopris v. Truax, 1 Colo. 89 , decided seven years after the enactment of that prohibitory section, we said that by that section “courts *38 are confined, to the law of the case when instructing juries.” By our rule we removed that limitation, so that now district judges may instruct on both the law and the facts. The summing- up of the evidence and the comments thereon are parts of the instructions, and should conform to the requirements of the law relating thereto. According to our practice in criminal cases, the instructions are in writing; they must be given before the arguments of counsel (C. L. §7104); they must be submitted to counsel so as to afford counsel “a reasonable time and opportunity to examine [them] * * * and to prepare and present specific objections thereto before such instructions are given to the jury” (Supreme Court rule 7); they may be commented on by counsel in their arguments to the jury (C. L. §7104); and they “may be taken by the jury in their retirement” (C. L. §7105). In the present case not one of these requirements was observed. There are no such requirements in the federal practice. Rule 14b permits our district judges to make comments of such nature and character as federal district judges are permitted to malee. In all other respects, our statutes and our rule relating to instructions remain in frill force and effect.
In order to malee the practice adopted by the rule fit into our system, there should have been several important changes in the statutes and our rules. If the bar had been made aware of our purpose to adopt the rule (which course was urged by me), suggestions might have been made that would have obviated the difficulty. True, .the question of the merits of the federal practice had been discussed in a general way, and a few favored the practice; but that is far different from discussing the desirability of incorporating that practice into our system, and the steps necessary to accomplish that result so as to make the new harmonize with the existing practice.
In adopting rule 14b, it seems that we grafted a part of the federal practice upon a practice to which it is ill-adapted; or, to change the figure, we inserted a square *39 peg into a round hole without making the necessary adjustments. The federal practice and our state practice are so different as to make difficult the application ■of our rule. We adopted only a small part of the federal trial practice, and we now are confronted with the difficult- task of combining these inharmonious elements into a union as nearly satisfactory as the circumstances will permit.*
It seems to- me that in giving the instruction in the manner and at the time it was- given the court committed an error, and that the error was prejudicial to the rights of the defendant. In Fincher v. People, 26 Colo. 169, 175 , 56 Pac. 902 , we called attention to the fact that, as a general rule, juries readily adopt the view or opinion of the judge upon any matter before them, “because of his admitted superior qualifications to deal with legal questions, or an inclination upon their part to shirk their responsibility by adopting such views. ’ ’ And in Holland v. People, 30 Colo. 94, 100 , 69 Pac. 519 , we said: “Prom the position of a judge he may, by his actions, unconsciously exert an influence upon a jury so' as to materially prejudice the rights and interests of one or the other of the litigants. By words or conduct, he may unintentionally inject into the jury box his own views regarding the merits of a cause. Jurors, either from an estimation of "the abilities of a judge to determine the merits- of a controversy, or as a means of escaping the responsibilities which they must discharge, are, no doubt, easily influenced by the views which a judge may entertain with respect to the case on trial.” In the present case the evidence detailed in the majority opinion—indeed, all of the incriminating evidence introduced by the prosecution— was flatly contradicted by evidence introduced by the defense; and the judge’s supplemental oral instruction bluntly expressing his opinion, in effect, that the defendant was guilty, detached, as it was, from the other instructions, and given orally and at a time not permitted by our practice, g*ave it undue prominence and excessive *40 emphasis, and was calculated to malee a profound impression on the jury. The fact that some of the jurors did not adopt the judge’s opinion as to the guilt of Eoy Kolkman (John’s son), is no indication that they did not give great, even controlling, weight to his opinion as to the guilt of John. Indeed, those who voted to convict Eoy may have been influenced, even induced to do so by the judge’s expression of his opinion that Eoy was guilty.
In 1930 the Circuit Court of Appeals for this circuit decided the case of Leslie v. United States, 43 Fed. (2d) 288. There, as here, the facts were in dispute. The instructions to the jury contained this language: “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. ’ ’ The court also instructed the jury that the court’s opinion was not binding, and the jury might “absolutely disregard it.” The instruction, in effect, is not different from the one given at the Kolkman trial, but it was less conspicuous and emphatic because it was not detached from the other instructions and given separately. For the giving of the instruction the judgment was reversed. In the opinion the court said: “It was well said in Weare v. United States, supra, that: ‘The jury can easily be misled by the court. Its members are sensitive to the opinion of the court, and it is not a fair jury trial when the court turns from legitimate instructions as to the law to argue the facts in favor of the prosecution. The government provides an officer to argue the case to the jury. That is not a part of the court’s duty. He is not precluded, of course, from expressing his opinion of the facts, but he is precluded from giving a one-sided charge in the nature of an argument.’ We are of the opinion that the charge in this case falls within the foregoing criticism, and was not cured by the later advice to the jury.” Circuit Judges Lewis and McDermott, in their concurring opinion, said of the instruction: “That is going too far.”
A few words as to Horning v. District of Columbia, *41 254 U. S. 135 . In the majority opinion it is said that in that case “there was little, if any, dispute as to the facts.” There was less than “little”; there was. none at all. I quote from the opinion of Mr. Justice Holmes: “This was not a case of the judge’s expressing an opinion upon the evidence, as he would have had a right to do. Graham v. United States, 231 U. S. 474, 480 . The facts %oere not in dispute, and what he did was to say so and to lay down the law applicable to them. In such a case obviously the function of the jury, if they do their duty, is little more than formal. The judge cannot direct a verdict it is true, and the jury has the power to bring in a verdict in the teeth of both law and facts. But the judge always has the right and duty to tell them what the law is upon this or that state of facts that may be found, and he can do the same none the less when the facts are agreed. If the facts are agreed the judge may state that fact also, and when there is no dispute he may say so although there has been no formal agreement. 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. Act of February 26, 1919, c. 48, 40 Stat. 1181 .” The statute referred to directs courts to disregard technical errors that do not affect the substantial rights of the parties. The situation here is entirely different from that in the Horning’ case, for in the present case the evidence was in direct conflict. If that had been the situation in the Horning case, it is clear, from both opinions in that case, that the judgment would have been reversed because of the trial judge’s statement to the jury. As it was, four justices, including the chief justice, dissented. In the dissenting opinion it was said: “It is said that if the defendant suffered any wrong it was purely formal; and *42 that the error is of such a character as not to afford, since the Act of February 26, 1919, c. 48, 40 Stat. 1181 , a basis for reversing the judgment of the lower court. Whether a defendant is found guilty by a jury or is declared to be so by a judge is not, under the Federal Constitution, a mere formality. ’ ’
The defendant, John Kolkman, did not have the fair trial to> which he was entitled. The course pursued by the trial judge was not in accordance with the common law practice, the federal practice or the state practice.
Entertaining the foregoing views, I am unable to join the majority of my brethren in placing upon the course pursued by the trial judge the stamp of approval. The judgment, in my opinion, should be reversed.
The foregoing was written several weeks ago. Since that time the majority opinion has been amended so as to cover the question of the constitutionality of the rule and the source of this court’s power to malee rules of practice and procedure. The language on that subject in the majority opinion assumes added importance from the fact that the Legislature has just passed an act, approved April 14, 1931, amending section 444 of the Code of Civil Procedure by adding: “Provided, that no rule shall be made by the Supreme Court permitting* or allowing trial judges of courts of record to comment on the evidence given on the trial.”
Whether the power to make such rule was by virtue of the act of 1913, or was inherent in the court, we had it; that is sufficient for the purpose of a decision in this case. It seems to me that the discussion in the opinion is not necessary to a decision, that it has no proper place in the opinion, and that it is mere dictum. However, the doctrine announced in that dictum is so far-reaching, so revolutionary (if I may use the expression), that it should not be permitted to go unchallenged. The language used indicates that this court claims to possess the exclusive power to prescribe rules governing procedure in trial courts. In effect, it gives this warning to the Legisla *43 ture: Hands off! There must be no more codes of civil procedure, or amendments thereof; no more legislative acts concerning procedure in either civil or criminal cases. Such interference will not be tolerated by this court./
Let us see what warrant there is for the court’s assumption of exclusive power to make rules regulating practice and procedure in trial courts. In the absence of legislation, a supreme court, of necessity, may regulate procedure in that court. In 1792 Congress had passed no act concerning procedure in the Supreme Court. For that reason the court, in ITayburn’s case, 2 Dallas 409 , exercised the power. In 1789 the Judiciary Act, passed by Congress, conferred upon the Supreme Court the power to make rules of procedure in suits in equity and admiralty in circuit and district courts, “not inconsistent with the laws of the United States.” R. S. 1875, sec. 913. Equity rules were adopted by virtue of the power so granted, not in the exercise of any inherent power residing in the court. In 1842 a similar act was passed. R. S. 1875, sec. 917. In Los Angeles Brush Mfg. Corporation v. James, 272 U. S. 701 , decided in 1926, the court, speaking through Chief Justice Taft, said: “By §917 of the Revised Statutes, this court is given power from time to time, in any manner not inconsistent with the laws of the United States, to regulate the whole practice to be used in suits in equity or admiralty by the district courts— Wayman v. Southard, 10 Wheat. 1 . This was taken from §13 of the original Judiciary Act, 1 Stat. 80 , c. 20.” Section 17 of the Judiciary Act of 1789 provided: “That all the said courts shall have power * * * to malee and establish all necessary rules for the orderly conducting business in the said cottrts, provided such rules are not repugnant to the laws of the United States.” In Wayman v. Southard, 10 Wheat. 1 , Chief Justice Marshall said, with reference to that section: “The 17th section of the Judiciary Act, and the 7th section of the additional act, empotver the courts respectively to regulate their *44 practice. It certainly will not be contended that this might not be done by congress. The courts, for example, may malee rules directing the returning of writs and processes, the filing of declarations and other pleadings, and other things of the same description. It will not be contended that these things might not be done by the legislature, without the intervention of the courts; yet it is not 'alleged that the power may not be conferred on the judicial department. ” In Bank of the United States v. Halstead, 10 Wheat. 51, 61 , the court said: “Congress might regulate the whole practice of the courts, if it was deemed expedient so to do: but this power is vested [by act of Congress] in the courts.”
Beginning with the year 1789 and continuing to the present day—for 142 years—Congress has passed acts regulating practice and procedure in both civil and criminal cases, and such acts have uniformly been enforced as binding upon the courts as well as upon the litigants.
Congress passed an act conferring upon the Court of Appeals of the District of Columbia the power to “make such rules and regulations as may be necessary and proper for the transaction of the business to be brought before it. ’ ’ In the case of In re Hien, 166 U. S. 432, 436 , the Supreme Court said that, 1 ‘ The general rule undoubtedly is that courts of justice possess the inherent power to make and frame reasonable rules not conflicting with express statute”; but held that the statute “authorized” the court to adopt the rule involved in the suit. The court had reference to rules of procedure before the court making them, not before some other court.
In 1789 Congress passed an act conforming the practice in federal trial courts to the practice in the state courts. Similar statutes have been enacted from time to time. The Supreme Court holds that such acts are within the constitutional powers of Congress. Thus, in Indianapolis, etc., Railroad Co. v. Horst, 93 U. S. 291 , in which the Conformity Act was considered, the court said: “Where a State law, in force when the act was passed, *45 has abolished the different forms of action, and the forms of pleading appropriate to them, and has substituted a simple petition or complaint setting forth the facts, and prescribed the subsequent proceedings of pleading or practice to raise the issues of law or fact in the case, such law is undoubtedly obligatory upon the courts of the United States in that locality.” See 25 C. J., p. 797, et seq.
In Horning v. District of Columbia, 254 U. S. 135 , cited supra and in the majority opinion herein, the court recognized the binding force of the act of Congress directing-courts to disregard technical errors that do not affect the substantial rights of the parties.
For many years the American Bar Association has appealed to Congress, as the source of power, to enact the Association’s bill reading as follows: “That the Supreme Court of the United States shall have the power to prescribe, by general rules, for the district courts of the United States and for the courts of the District of Columbia, the forms of process, writs, pleadings, and motions, and the practice and procedure in actions at law.” A. B. A. Rep., 1929, p. 515. In his message to Congress in 1910, President Taft said: “I am strongly convinced that the best method of improving judicial procedure at law is to empower the Supreme Court to do it through the medium of the rules of the court, as in equity.” A. B. A. Rep. 1926, p. 519. Speaking before the American Bar Association in 1922, Chief Justice Taft said: “Congress from the beginning- of the government has committed to the Supreme Court the .duty and power to make the rules in equity, the rules in admiralty, and the rules in bankruptcy. Moreover, this American Bar Association has for some years been pressing upon Congress the delegation of power to the Supreme Court to regulate by rule the procedure in suits at law.” A. B. A. Rep. 250, 260.
The state bar associations throughout the country adopted resolutions urging Congress to pass an act “authorizing” the Supreme Court to prescribe rules *46 regulating practice and procedure in law actions in the district courts. The Colorado Bar Association adopted such a resolution unanimously. C. B. A. Rep. 1913, p. 115.
"What is true of the federal practice is true of the state practice. Prom the beginning legislatures have passed practice acts and codes of procedure, and prior to this decision no court has questioned the power of the legislature to do so. Though many judges accustomed to the common law practice were opposed to the Code of Civil Procedure, none denied the power of the legislature to enact it.
At its first session, held in 1861, the territorial Legislature of Colorado' passed a practice act. After Colorado became a state the Legislature, at its first session, held in 1877, enacted the Code of Civil Procedure. With reference to the present Code, this court said, in Walton v. Walton, 86 Colo. 1 , 35 : “No doubt of the validity of that code is entertained”; thus recognizing* the constitutional power of the Legislature to enact laws regulating practice and procedure. The act of 1913 is section 444 of the Code. Our reports are full of cases recognizing that such acts are within the power of the Legislature and obligatory upon the courts. Three only will be cited. Sopris v. Truax, 1 Colo. 89 ; Baker v. Barton, 20 Colo. 506 , 39 Pac. 65 ; Cary v. Mine and Smelter Supply Co., 53 Colo. 556 , 129 Pac. 230 .
The power to make rules of practice in this court, ‘ ‘ not inconsistent with the constitution or laws of this state,” was conferred upon the court by section 5630, C. L., and we made rules pursuant to the power thus conferred. The court now claims the exclusive power to prescribe rules governing practice and procedure in other .courts. “In the absence of some authority under either the constitution or a statute, an appellate court has no power to make rules which are binding on an inferior court as to practice and proceedings in the latter.” 15 C. J., p. 904.
It is claimed that the power is conferred by article III *47 of the Constitution, partitioning the powers of government among three departments, and section 1 of article VI, vesting judicial power, ‘ ‘ except as in the Constitution otherwise provided,” in the courts. Logically, the argument is this: The power to regulate procedure belongs exclusively to the judiciary: therefore, to the Supreme Court exclusively belongs the power to regulate procedure, not only in that court, but also in all the other courts. The fallacy is apparent. There is an assumption that the Supreme Court alone is the judiciary—an assumption strikingly similar to that of a certain French king concerning his relation to the state. By virtue of section 1 of article VI, the judiciary consists of the Supreme Court, the district courts, the county courts, and such other courts as may be provided by law. Assuming what we have seen is not the case, that the rule-making power belongs exclusively to the courts, it belongs to all the courts, not to the Supreme Court alone; each court having power to malee rules governing procedure in that court, not in some other. If this court has that broader power, it must be by reason of an express provision, or as an incident to its superintending control over the other courts. There is no such express provision, other than the act of 1913, as amended in 1931; and superintending control over inferior courts is made subject to' regulation and limitation by the lawmaking* department. Section 2, article VT, is as follows: “The supreme court * * * shall have a general superintending* control over all inferior courts, under such regulations and limitations as may be prescribed by law.” The Constitution shows an intention to permit the Legislature to regulate procedure, the only limitation placed upon that power being* found in section 25,' article V, of the Constitution, reading: “The general assembly shall not pass local or special laws * * * regulating the practice in courts of justice ’ ’; and in section 28, article VI, which provides: “All laws relating to courts shall be general and of uniform operation throughout the state; and the * * * proceedings *48 and practices of all the courts of the same class or grade, so far as regulated by law, * * * shall be uniform. ’ ’
The act of 1913 was sponsored by the Colorado Bar Association. It was. drawn by its committee “with special reference” to section 2, article VI, supra. C. B. A. Rep. 1913, p. 325. In Ernst v. Lamb, 73 Colo. 132 , 213 Pac. 994 , we held that that act gave this court power to prescribe rules of practice and procedure, that it was not a delegation of legislative power, and that it is constitutional. We said that the rule there involved “was promulgated by this court under the authority of the act of March 3, 1913.” Similar bills were sponsored by the bar associations of other states. In other words, the state bar associations of this and other states appealed to the legislative department, as the source of power, to confer upon the several supreme courts the power to prescribe rules of practice and procedure in inferior courts.
We now are called upon to believe that from the dates of their creation to this day the highest court of the nation and the highest state courts, including this court, through ignorance, timidity or apathy, have permitted the legislative department to usurp the power of the judiciary; that the American Bar Association and the bar associations of this and other states were all wrong in appealing to the legislative department as the source of power; that the Colorado act of 1913 was not passed to confer any rule-maldng power upon this court, but because the Legislature had come to a realization of its misconduct in passing the Practice Act of 1861, the Code of Civil Procedure and the acts prescribing the practice and procedure in criminal cases, and, repenting of its usurpation, passed the act in order to restore the stolen power to the court.
Of the 27,300 members of the American Bar Association (A. B. A. Rep. 1929, p. 1408), several have expressed views similar to those found in the majority opinion; but one of them—one of the ablest—after expressing his views, concludes: “It may be that today, after seventy- *49 five years of codes and practice acts and prolific procedural legislation, we can’t go so far as to pronounce such legislative interference with the operations of a coordinate department to be unconstitutional. Perhaps the ground is so far debatable that the courts could not have resisted legislative annexation of that domain. Today, possibly, we must concede that the legislature may enact codes of procedtire and detailed practice acts.” 12 A. B. A. Jour. (Sept., 1926) p. 601.
Most of .the authorities cited in the majority opinion on this branch of the case sustain the position taken in this dissenting opinion. Thus, 12 C. J., p. 1103, recognizes the validity of statutes concerning procedure, provided they do- not deprive the accused of any substantial protection. And 6 R. C. L. 294 is to the same effect. It says: “Statutes making changes in the remedy or procedure are always within the discretion of the law-making power.” And Cooley’s Constitutional Limitations (8th Ed.) 551-52 is to the same effect. It says, at page 552: ‘ ‘ The legislature may * * * prescribe altogether different modes of procedure in its discretion, though it cannot lawfully, we think, in so doing, dispense with any of those substantial protections with which the existing law surrounds the person accused of crime. ’ ’ In State v. Superior Court, 148 Wash. 1 , 267 Pac. 770 , cited in the majority opinion, there was involved a legislative act “authorizing” the Supreme Court to make rules relating to practice and procedure in the courts of the state. The court suggested the question whether the rule-making power was not purely a judicial function, and referred to Hayburn’s case, 2 Dallas 409 , where the Supreme Court of the United States, in the absence of legislation, as already noted, adopted the practice of the English courts of King’s Bench and Chancery for the practice in the Supreme Court—not, it will be observed, for the practice in the inferior federal courts. The Washington court concluded, however, that “the point here in controversy can be decided upon a far more stable foundation,” *50 and held that the act was constitutional; that the Legislature may deleg-ate power to the Supreme Court to make rules for other courts. The article in the December, 1929, number of Journal of American Judicature Society, also cited in the majority opinion, discusses the Washington case, supra, and says: “As to the safety of permitting the Supreme Court to regulate criminal procedure the doubters should recall the fact that in nearly all states the rule-making power is conferred, as in Washington, by a legislature which can repeal its act at any time and reassume its accustomed authority.”
In the majority opinion there is a quotation from the opinion in Chatfield v. Ohio, 269 U. S. 167 , which clearly recognizes that the legislative department has the power to pass acts regulating procedure. Speaking of the provision of the Constitution forbidding states to pass ex post facto laws, the court said that that provision was not intended “to limit the legislative control of remedies and modes of procedure which do not affect matters of substance. ’ ’
In the majority opinion, this court not only recognizes, but insists upon, the binding effect of section 145, page 321, of the statutes of 1861, now section 7099, C. L., adopting the common law trial procedure and rules of evidence, “except when this chapter points out a different mode”; and section 6516, C. L., adopting the common law of England, ‘ ‘ so far as the same is applicable. ’ ’ The court says that as “neither of the two last mentioned sections has been repealed, * * * we must determine the common law procedure,” etc. In other words, the Legislature having prescribed the procedure, the courts are bound by its action.
So it seems that the court’s pretension to exclusive power to make rules regulating practice and procedure in other courts has no constitutional warrant. I respectfully submit that the court does not possess the exclusive rule-making power claimed by it, unless, indeed, we assume that some super-power resides in the court, and in *51 voke some principle akin to the doctrine, long since discredited and abandoned, that the king rules by divine right.
Two specially concurring opinions have just been handed to me. The one written by my brother Burke contains strong confirmation of the view, expressed in this dissenting opinion, that the court does not have exclusive power to regulate the procedure in the trial courts. I join in the praise bestowed upon the work of the American Law Institute, performed at the request of organizations of the very highest standing. The institute prepared a model Code of Criminal Procedure for submission to the state legislatures throughout the United States. It covers the entire procedure from arrest to and including appeal and the execution of the sentence. It contains a provision conferring. upon trial courts the power, in giving its instructions to the jury, to comment upon the evidence. In the introduction the institute offers to cooperate with the bar1 in preparing, “for presentation to the legislature,” bills “embodying the provisions of the Code.” This is a clear recognition of the power of the legislative department to regulate procedure in the courts, and an emphatic repudiation of the claim that that power belongs exclusively to the judiciary.
The contention that section 7099, C. L., adopts the common law method of trial in criminal cases impliedly confesses that the Legislature has such power. That section adopts the common law trial procedure, “except when this chapter points out a different mode.” That section is in chapter 153 of the Compiled Laws; and that very chapter (sec. 7105) points out a different mode concerning' instructions-; namely, that the district court shall instruct the jury on the law only.
A comparison of the federal and state constitutions does not aid the position assumed in the majority opinion and in my brother Burke’s concurring opinion. The federal Constitution vests the judicial power of the United *52 States, without any reservation or exception, in the Supreme Court and the inferior courts. If, as claimed in the majority opinion, the power to regulate court procedure is. inherently and exclusively a judicial power, the federal courts—not the Supreme Court alone—possesses that exclusive power; yet we have seen that Congress is vested with, and always has exercised, the power, which negatives the exclusive possession thereof by the courts. The provisions of article III of the Colorado Constitution express no more than the rule enforced by both federal and state courts; namely, that one department of government shall not usurp the powers properly belonging to another. There are these differences between the federal Constitution and the state Constitution: The former vests the- judicial power in the courts without any reservation or exception, whereas the latter vests the power in the courts, “except as in the Constitution otherwise provided” (Art. VI, §§1 and 2); and by section 2 of article VI, this court’s “superintending control” over inferior courts is made subject to ‘ ‘ such regulations and limitations as may be prescribed by law”; and section 25 of article V and section 28 of article VI recognize the legislative power to regulate practice and procedure in the courts.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9865054. Public record. Not legal advice.