Kolkman v. People

Me. Justice Bueke,

specially concurring.

Believing that much of the persuasive force of portions of the dissenting opinions of Justices Butler and Hilliard rests upon what they overlook, rather than what they note, I feel obliged to add to the already too voluminous discussion of the questions here involved.

It should be borne in mind throughout, that the recent *73 legislative act referred to in the dissent has no application to the instant case and is not here under consideration. It was passed after our investigations were practically finished and our conclusions reached. It is involved only so far as we have been obliged, in answering the constitutional objection here raised and in examining the reasoning of Mr. Justice Hilliard in support thereof, to inquire into the source of the power to make the questioned rule.

We are told that “It is not the duty of the Supreme Court or of any court to be concerned with the guilt or innocence of a defendant.” This is the doctrine which transforms a criminal trial into a game where rules outrank results, and relegates a judge to the position of an umpire. I can neither subscribe to it nor permit it to pass unquestioned. Juries, whose sole province in criminal trials is to' decide the facts of guilt, are as much a part of the court as the judge. If their verdict be adverse to the defendant, and be supported by evidence, it must nevertheless be vacated and a new trial granted if it does not meet the approval of the conscience of the judge. Piel v. People, 52 Colo. 1 , 119 Pac. 687 . Is the trial court not “concerned with guilt or innocence?” Certainly Mr. Justice White, who spoke for this court in that case, and his associates thought so. The most' common assignment of error in appellate courts, and the second assignment of error here, is that there is no sufficient evidence of guilt. The most common reason given for their refusal to reverse for minor errors is because guilt is overwhelmingly established and the errors are not prejudicial. Is this court not “concerned with guilt or innocence?” If not we have often'gone far astray. It is the duty of all courts vested with jurisdiction of criminal causes to so administer the law and so conduct themselves within it that the guilty may be convicted and the innocent acquitted. For that purpose, and that purpose only, criminal statutes are enacted, criminal courts created, criminal procedure adopted, and all the compli *74 eated machinery of the criminal law set up and operated.

All of the federal authorities cited by Mr. Justice Butler anent the power of the United States Supreme Court to make rules of practice and procedure, and all his conclusions drawn from bar association activities relating thereto, are stripped of their potency by a comparison of the state and federal constitutions.

“No person or collection of persons charged with the exercise of powers properly belonging to one of these departments [legislative, executive and judicial] shall exercise any power properly belonging to either of the others.” Art. Ill, Colorado Constitution. There is no such provision in the federal Constitution.

“The Supreme Court * * * shall have a general superintending control over all inferior courts.” Art. VI, sec. 2, Colorado Constitution. There is no such provision in the federal Constitution. True, said “control” is to be exercised “under such regulations and limitations as may be prescribed by law,” Id. But since the two articles must be construed together the “law” referred to must not usurp judicial powers. To determine what powers properly belong to the judicial department one must go to the common law. (Going there we find the power conferred by our rule was, from time immemorial, “judicial.” To place it beyond question section 7099, C. L. 19.21, providing that ‘ ‘ all trials for criminal offenses shall be conducted according to the course of the common law” was passed in 1861. There is no such federal statute and “the federal courts have no common-law jurisdiction in criminal cases.” 12 C. J., p. 197, §27.

Mr. Justice Hilliard questions the conclusion that the better practice, from the standpoint of the effective administration of ‘justice, is that permitted by the rule, because no authority is cited or known to him. Since the proposition is incapable of mathematical demonstration, and since the legal power to decide it has never been vested, “authority,” as he uses the term, must refer to the conclusions of those whose ability and experience *75 qualify them, to express, and justify others in accepting, their opinions. In that sense such authorities are legion. A list of all the great jurists who have ever spoken or written on the subject in the past century would require little deletion before being filed as a list of such authorities. I present, however, this concrete case from the living present. In 1925 the American Law Institute, at the request of the American Bar Association, the American Institute of Criminal Law and Criminology and the Association of American Law Schools, undertook to aid in rescuing criminal procedure in this country from the reproach so forcefully summed up by the late Chief Justice Taft, by drafting a model criminal code. The actual work was done by some fourteen men whose qualifications therefor were probably unsurpassed by any similar group in the United States. They were advised and assisted by countless others throughout the country and the result of their labors subjected to the test of repeated examination and debate. After five years of such strenuous work they completed and presented to the council of the institute, which in May, 1930, adopted the proposed Code. Section 337 thereof reads: “The court shall instruct the jury regarding the law applicable to the facts of the cause, and may make such comment on the evidence and the testimony and credibility of any witness as in its opinion is necessary for the proper determination of the cause. It shall if requested inform the jury that they are the exclusive judges of all questions of fact and if the court comments on the evidence it shall so inform them whether requested or not. The charge' of the court may be either written or oral. ’ ’

Here is a rule which, to say the least, is as broad as our own. That it represents, in the opinion of its authors and sponsors, progress, not retrogression, in the effective administration of the law is self-evident. If, as high authority for the questioned statement in the court’s opinion, it is lacking in aaiy particular, it is sufficiently reinforced by the fact that as this is being writ *76 ten my brother Hilliard, as the representative of this court by the appointment of its chief justice, is in attendance at the annual meeting of the American Law-Institute in the nation’s capital. It is worthy of note that this proposed section vests in the trial court a discretion as broad as our rule, that it does not confine comment on tlie evidence to the identical time and method of instructions on the law, and that it lacks the advantage of having behind it at least a century and a half of judicial examination, decision and practice. Moreover, the practice authorized by our rule is substantially that of the vast majority of the courts of general jurisdiction of the English-speaking world. It is forbidden in but eleven of the states of the Union, and in Michigan only is the “comment” expressly limited to the charge.

Because the meaning of this rule has, in the past and now, been questioned, it is said to be veiled in “nebulous uncertainty” and if retained should be clarified, unless '“we are incapable of stating any proposition of law in certain terms.” Amplification promises only confusion. Like every other court, and every legislature and every textbook writer, we are incapable of stating any proposition of law in terms so certain as to preclude the meaning thereof ever being questioned. Human language is incapable of mathematical accuracy and law is not an exact science. The most questioned work in all the world is the Book of our Faith. Why should we expect success where inspiration failed?

I think the rule a salutary one, as definitely expressed as language allows, and fitted to our system without difficulty; that it concerns' the exercise of a purely judicial power, and that the exclusive exercise of such powers by the courts is not only sanctioned, but commanded by the people themselves through the Constitution which is their supreme law.