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(230 P.)

need not consider. There is an objection to [ of surprise of district attorney, who must the allowance of exemplary damages, which, have known from their testimony before coroon the record before us, must be sustained. ner's jury and other evidence that they would There was a fair question as to the location not testify in harmony with prior statements. of this boundary line, and there is no evi- En Banc. dence whatever that the defendants acted willfully and wantonly or recklessly. The testimony is undisputed that they accepted the line pointed out to them by the former owner of the property.

There was nothing to justify a submission to the jury of the question of exemplary damages. For the reasons above stated, the judgment is reversed.

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WARE v. PEOPLE. (No. 10807.) (Supreme Court of Colorado. Oct. 6, 1924.) 1. Witnesses 380 (5)-Party voluntarily calling witness cannot contradict him by proof of prior statements.

Party cannot contradict witness, voluntarily called by him, by proof of his prior

statements.

2. Witnesses 380 (7)-Party required by law or ordered by court to produce witness may impeach him by proof of prior statements.

Witnesses, whom law requires or court orders party to produce, are not voluntarily called, and their truthfulness and integrity are not vouched for by such party, who may impeach them by proof of their prior statements. 3. Criminal law 666(1)—Prosecuting officer may use discretion as to what witnesses he

will call.

Prosecuting officer need not call witness, whose testimony he knows or has reason to believe will be adverse, or produce all witnesses to crime, nor even all those whose names are indorsed on information or were eyewitnesses but may try case in his own way and use his own discretion as to what witnesses to call, so long as he acts in good faith. 4. Witnesses

322-Prosecutor held not compelled to call, and so not entitled to impeach, testimony of eyewitnesses, by proof of contrary statements day after shooting.

Prosecutor held not compelled to call eyewitnesses, whom he must have known, from their testimony before coroner's jury and other evidence, would testify adversely to his contention for verdict of first degree murder with death penalty, and hence, was not entitled to impeach them by proof of contrary statements taken day after shooting.

5. Witnesses 380(1) — Evidence impeaching state's witnesses inadmissible in state's behalf, in absence of surprise by adverse testi

mony.

Evidence of prior conflicting statements by state's witnesses, testifying adversely to state, held inadmissible on latter's behalf, in absence

of Denver; Geo. F. Dunklee, Judge.
Error to District Court, City and County

Calloway Ware was convicted of second degree murder, and he brings error. Reversed and remanded.

John M. Glover, of Denver, for plaintiff in error.

Wayne Williams, Atty. Gen., and Harold Clark Thompson, Asst. Atty. Gen., for the People.

years.

SHEAFOR, J. Plaintiff in error. defendant below, and so designated here, was convicted of murder of the second degree, and sentenced to a term in the penitentiary of not less than ten years nor more than eleven He brings the case here for review. erred in allowing the people to call, lead, It is assigned as error that the court cross-examine, and impeach witnesses Kenny, Peach, and Cowns. It appears from the record that on February 20, 1923, at the of the Denver & Rio Grande railroad shops, hour of ten o'clock p. m., in the washroom in the city of Denver, the defendant shot and killed Oscar Sibley. Both the defendant and the deceased were colored, and were

employed at the time of the homicide at the Denver & Rio Grande shops in Denver. The only eyewitnesses of the homicide were Joseph Peach and Willie Cowns.

Andrew J. Reynolds, deputy district attorney, was called as a witness by the people and testified, inter alia, that he took statements the next day after the shooting from the witnesses Peach and Cowns; that the statements were taken down by a stenographer; that they were afterwards written out on a typewriter, and signed by the parties. He further testified as to the questions which had been propounded to the witnesses in the statements and their answers thereto. The statements made by these witnesses, testified to by Reynolds, differed materially from the evidence given by them upon the trial, and Reynolds' testimony was introduced for the purpose of impeaching them.

The question here presented seems never to have been determined in this jurisdiction. It is conceded that as a general rule a party cannot directly impeach his own witness, but it is claimed by the people that there are important exceptions to this rule, and that the instant case falls within one of the exceptions. On this question, the cases are far from being in harmony.

In 28 R. C. L. 644, it is said:

"And in a number of jurisdictions it is held that a party who is thus taken by surprise on the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

examination of a witness called by him may not, only interrogate the witness as to previous inconsistent statements made by him, but if the witness denies having made such statements may prove the same to impeach him. On the other hand, in many of the states the rule forbidding a party to impeach his own witness is deemed to preclude the admission of proof by him of previous inconsistent statements by the witness to avert the effect of unexpectedly unfavorable testimony given by him."

221 Ill. 591, 77 N. E. 1112, 6 Ann. Cas. 220; People v. Johnson, 13 Cal. App. 776, 110 P. 965; State v. Campbell, 73 Kan. 688, 85 P. 784, 9 L. R. A. (N. S.) 533, 9 Ann. Cas. 1203. In Dillon v. State, supra, the court said: "The rule requiring the state to call eyewitnesses in a homicide case became well es tablished in the English system of jurisprudence at a time when a defendant himself was denied the right to testify or to call witnesses in his own behalf, and when he was even deAmong the cases holding that a party cannied the right of counsel. The rule no doubt contradict his own witness by proof of his was adopted to mitigate the rigor and harshness of the situation in which an individual, prior statements, are the following: Deer-bound to defend himself in a case involving ing v. Cunningham, 63 Kan. 174, 65 P. 263, 54 L. R. A. 410; Murphy v. State, 120 Md. 229, 87 Atl. 811, Ann. Cas. 1914B, 1117; Selover v. Bryant, 54 Minn. 434, 56 N. W. 58, 21 L. R. A. 418, 40 Am. St. Rep. 349; Lindquist v. Dickson, 98 Minn. 369, 107 N. W. 958, 6 L. R. A. (N. S.) 727, 8 Ann. Cas. 1024; State v. D'Adame, 84 N. J. Law, 386, 86 A. 414, Ann. Cas. 1914B, 1109. The following cases, among others, hold the contrary doctrine: Hickory v. United States, 151 U. S. 303, 14 S. Ct. 334, 38 L. Ed. 170; Chicago* City R. Co. v. Gregory, 221 Ill. 591, 77 N. E. 1112, 6 Ann. Cas. 220; Rhodes v. State, 128 Ind. 189, 27 N. E. 866, 25 Am. St. Rep. 429; Hall v. Manson, 99 Iowa, 698, 68 N. W. 922, 34 L. R. A. 207; Erdman v. State, 90 Neb. 642, 134 N. W. 258, Ann. Cas. 1913B, 577.

capital punishment, was placed by the English system of jurisprudence as it was. While the reason for the rule has ceased to exist, some courts still adhere to the ancient doctrine. People v. Deitz, 86 Mich. 419, 49 N. W. 296; Territory v. Hanna, 5 Mont. 248, 5 P. 252.

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* * To adopt it is to require the state to call a witness to establish its case whom the prosecuting attorney may believe is dishonest, or has been corrupted, and is willing to commit perjury to aid the accused, either from motives of friendship, interest, or relationship. * Prosecutions in criminal cases should be carried on without malice and without desire or intent on the part of the prosecution to secure a conviction where the evidence does not warrant it. On the other hand, it would reason or of justice to require the state in all seem to be proceeding beyond the bounds of instances to call all eyewitnesses to the commission of an alleged crime. The weight of authority in this country is certainly against the contention of the defendant.

*

It

We do not

[1, 2] We think the weight of authority, and the sounder and better rule, is that a party cannot contradict a witness, voluntarily called by him, by proof of his prior state- is held in some jurisdictions that the right of ments. But it is urged that the prosecu- the state to refuse to call an eyewitness in a tion was compelled to call the two eyewit-criminal case is not arbitrary, but is subject to judicial discretion. * nesses, and therefore should be allowed to think the claim here made, that Gibson was impeach them. We are aware that there the only eyewitness to the entire transaction are cases holding that where the law requires that led up to the homicide, was sufficient to or the court orders a party to produce a render it obligatory upon the state to call him, witness, he may impeach him in the man- in view of the relations existing between him ner suggested. In such cases, the witnesses and the defendant and the apparently conare not voluntarily called and their truth-flicting statements made by him in reference fulness and integrity are not vouched for to the occurrence." by the party producing them. United States v. Hall (D. C.) 44 F. 864; Thompson v. Owen, 174 III. 229, 51 N. E. 1046, 45 L. R. A. 682, and others.

[3] But the prosecuting officer is not obliged to call a witness whose testimony he knows, or has reason to believe will be adverse; he is not required to produce all witnesses whose names are indorsed on the information; he is not obliged to call all witnesses to the crime; he is not obliged to call the only eyewitnesses to the crime, and he may try his case in his own way and use his discretion as to what witnesses he will call, so long as he acts in good faith. Keller v. State, 123 Ind. 110, 23 N. E. 1138, 18 Am. St. Rep. 318; State v. Middleham, 62 Iowa, 150, 17 N. W. 446; State v. David, 131 Mo. 380, 33 S. W. 28; Dillon v. State, 137 Wis. 655, 119 N. W. 352, 16 Ann. Cas.

[4] In the instant case, we think the prosecutor was not compelled to call Peach and Cowns to testify. He may have desired, and honestly and in good faith believed, that he was entitled to obtain a verdict of murder of the first degree with the death penalty imposed as the punishment. But even so, the people were not obliged to call Peach and Cowns as witnesses in view of the fact that it is apparent, from the record, the district attorney must have known before calling them that they would give adverse testimony; and furthermore, the impeaching evidence could not have the effect of establishing the truth of the subject-matter of the statements, the effect thereof being only to detract from the weight to be given to the testimony of the witnesses.

[5] Moreover, it appears the district attorney was not surprised by the testimony

(230 P.)

that the witnesses Peach and Cowns had testified before the coroner's jury several days after their statements were obtained by the officers on the evening of the homicide, and their testimony there was materially different from their statements previously made. The district attorney must have

known what their evidence was before the

coroner's jury. There is other evidence in the record showing that the prosecutor knew before these witnesses were placed on the stand that they would not testify in harmony In fact no with their previous statements. surprise was claimed by the district attorney. In 28 R. C. L. 646, it is said:

"So, in order to bring himself within the exception to the general rule against the impeachment of one's own witness, it must appear that the party calling the witness was entrapped by his previous statements into put ting him on the stand and was surprised by his testimony."

The following cases are cited in support of the text: In re Dolbeer's Estate, 153 Cal. 652, 96 P. 266, 15 Ann. Cas. 207; Fearey v. O'Neill, 149 Mo. 467, 50 S. W. 918, 73 Am. St. Rep. 440.

In Ann. Cas. 1914B, 1133, a large number of cases are cited to sustain the text above quoted from 28 R. C. L. 646.

In People v. Crespi, 115 Cal. 50, 46 P. 863, it was held:

"The court refused to admit the impeaching evidence. This ruling is complained of. It was clearly right. It was an attempt by a party to impeach his own witness, not because that witness had given hostile evidence which had taken him by surprise, but because he did not admit what was sought to be elicited from him. Indeed, he was apparently questioned for the sole purpose of impeachment. Such practice is not permissible."

those things which he is professedly introduced to prove, some evidence at least of surprise ought to be required to overcome the presumption, for otherwise the exception would absorb the rule."

We are of the opinion that the court erred in admitting the impeaching testimony of Reynolds, and for this the case must be reversed. It is not necessary to consider the other assigned errors.

Reversed and remanded.

TELLER, C. J., and DENISON, J., not participating.

HALL HOTEL CO. v. STILLE.
(No. 11001.)

(Supreme Court of Colorado. July 7, 1924. Rehearing Denied Nov. 10, 1924.)

1. Landlord and tenant 290 (3)-Demurrer to defense that defendant was entitled, under lease, to renewal held properly overruled.

Demurrer to defense to suit in unlawful detainer that defendant performed lease, and exercised option therein to renew, held properly overruled.

2. Landlord and tenant 291 (11)—In unlawful detainer, defendant, claiming exercise of renewal option, must prove performance.

In unlawful detainer, defense being defendant tenant's exercise of renewal option, defendant has burden of proving performance of the lease conditions entitling him to exercise the option.

3. Appeal and error 1064 (1)—Instruction on tenant's right to renew lease, if landlord was ignorant of default, held prejudicial error as relieving tenant of burden of proving faithful performance.

Where defense to unlawful detainer was

In Moore v. Chicago, St. L. & N. O. R. Co., exercise of option under lease to renew, it

59 Miss. 243, it was said:

"While we recognize the right of a party who has been entrapped into introducing, and is surprised by the testimony of an unfriendly witness, to impeach his credibility by giving evidence of other and different statements made by him, we nevertheless think it was error to permit it to be done in this case, for the reason that no showing was made by the plaintiff, by his own affidavit or otherwise, that the testimony of the witness operated as a surprise on him, and because we think it fairly inferable from the other facts shown in the record that the plaintiff and his counsel anticipated that the witness would testify in effect as he did, and introduced him after they had received information that he had declared his intention not to adhere to the statement of the facts as contained in his letter.

But

where the facts or circumstances suggest the presumption that the party introducing a witness does so with knowledge of the fact that his testimony will not be in accordance with

was prejudicial error to instruct that "to entitle the plaintiff to refuse to renew refusal must be made in good faith, and based upon actual facts known to the plaintiff," since such instruction, in effect, told the jury that tenant could recover, notwithstanding he might not have performed lease, if landlord was ignorant of default at time he refused to renew,. and this relieved tenant of burden to prove faithful performance.

4. Landlord and tenant

86(1)-Refusal to

renew not necessarily arbitrary because tenant's default unknown.

While refusal to permit tenant to exercise option to renew must be in good faith, refusal is not shown necessarily to be arbitrary by the mere fact that the facts of the tenant's default were unknown to lessor when so refusing.

Department 3.

Error to County Court, City and County of Denver; G. A. Luxford, Judge.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Unlawful detainer by the Hall Hotel Company against Fred Stille. Judgment for defendant, and plaintiff brings error. Re

versed.

Ponsford, Pender & Larwill, of Denver, for plaintiff in error.

J. M. Wardlaw, of Denver, for defendant in error.

SHEAFOR, J. Plaintiff in error, plaintiff in the court below, brought this suit in justice court in unlawful detainer to recover possession of certain real estate. Plaintiff is the owner of the real estate in controversy, and defendant was in possession under a lease which expired by its terms on December 1, 1923. On November 28, a notice in writing for the surrender of possession of the premises was served upon the defendant. Defendant, on November 9, informed plaintiff in writing that he would exercise his right, by virtue of an option contained in the lease, for a further lease of the premises for a period of two years following the expiration of the then existing lease, and again so notified plaintiff in the afternoon of December 1. The option in the lease upon which defendant relies reads:

"Further, that after the expiration of this lease, if all of the above conditions, covenants and agreements of the lessee have been faithfully and fully performed by the said lessee to the satisfaction of the lessor, the said lessee shall have the option of again leasing the premises described as aforesaid, for a period of either one or two years, at a yearly rental equivalent to the yearly rental provided for in

this lease."

From a verdict and judgment in the justice court, an appeal was taken to the county court.

For a second defense, the defendant set up the option, alleged performance of all the conditions of the lease, and the giving of the notices referred to. Plaintiff demurred to the second defense, which was overruled. From a verdict and judgment against it in the county court, the plaintiff prosecutes this writ of error, and applies for a supersedeas. The only errors assigned and discussed are: (1) That the trial court erred in overruling plaintiff's demurrer to the second defense. (2) That the trial court erred in giving instruction No. 7, which reads, so far as material, as follows:

"The court instructs the jury that, under the lease in evidence in this case, the plaintiff, the Hall Hotel Company, contracted with the defendant, Fred Stille, to execute a new lease of the premises in controversy for a period of one or two years after December 1, 1923, if the defendant faithfully and fully performed all the conditions, covenants, and agreements of the lease which expired on December 1, 1923, to the satisfaction of the plaintiff.

fully performed all the conditions, covenants, and agreements of the old lease, and is entitled to a new lease for a term of two years beginning December 1, 1923. The plaintiff has refused to execute such new lease. You are instructed that, to entitle the plaintiff to refuse to renew the lease according to its terms, the refusal must be made in good faith and based upon actual tacts known to the plaintiff, and such refusal must not be a dishonest, pretended, arbitrary, capricious, unjust, or mercenary refusal for dissatisfaction."

[1] The plaintiff's first contention cannot be sustained. Adcock v. Lieber, 51 Colo. 373, 117 P. 993, is authority for the court's ruling, and we think it is decisive of the question raised here. The demurrer was properly overruled.

[2] As to the second proposition, we think the plaintiff's contention is correct. If it be true, as we hold, that defendant had a right to allege and prove as a defense that he was given an option to again lease the premises upon his faithful and full performance of all the conditions, covenants, and agreements contained in the lease, and to allege and prove that he had faithfully and fully performed them, then it would seem to follow that, while he could not in the present action have a decree for specific performance of the lessor's contract, yet, in an action to enforce the contract, he must allege and prove the same facts as required of him to defeat the plaintiff in this action. If, in an action for specific performance, the defendant could not establish that he had faithof the lease, he must fail, and this, of course, fully and fully performed all the conditions would be true whether or not plaintiff had knowledge of the defendant's failure to perform. It follows, then, that plaintiff could refuse to renew the lease, if defendant had not faithfully and fully performed all the conditions of the lease, whether plaintiff knew or was ignorant of defendant's failure to perform.

[3] The instruction given told the jury, in effect, that the defendant could recover, notwithstanding he might not have faithfully and fully performed all the conditions of the lease, if the plaintiff was ignorant of the default at the time he refused to renew the lease, and this relieved the defendant of the burden of proving that he had faithfully and fully performed all the conditions of the

lease.

[4] It is true that plaintiff's refusal to renew must be made in good faith, and must not be a capricious and dishonest or arbitrary refusal; but it is not necessarily true that, because the facts of defendant's default were unknown to the plaintiff, the refusal was not made in good faith, and that it was capricious, dishonest, and arbitrary, and not based upon sufficient facts.

The giving of this instruction constituted

(230 P.)

must be reversed. Supersedeas denied, and judgment reversed.

Reversed.

TELLER, C. J., and CAMPBELL, J., con

cur.

KINNEY V. YOELIN BROS. MERCANTILE CO. (No. 10808.)

(Supreme Court of Colorado. July 7, 1924. Rehearing Denied Nov. 10, 1924.)

1. Assignments for benefit of creditors 163 -Unrecorded power of attorney to distribute assets held not assignment for creditors. Unrecorded power of attorney to sell grocery and distribute proceeds pro rata among principal's creditors held not to be assignment for benefit of creditors; C. L. § 6242, requiring deed to be acknowledged and filed for record before title vests.

2. Deeds 196(1)—Burden on claimant under deed to plead it and prove it valid. Burden is on one claiming under deed to plead instrument and prove facts which show it to be valid.

3. Fraudulent conveyances 47, 225-Sale In violation of Bulk Sales Law Invalid; creditor by attaching proceeds of bulk sale held to have affirmed sale, and proceeds thereby became subject to execution.

Where agent, under power of attorney to sell grocery and divide proceeds pro rata among principal's creditors, sold property in bulk, sale was void as to creditors, under Bulk Sales Law; but, where creditor attached proceeds in agent's hands, he thereby affirmed sale, and money became subject to execution.

4. Fraudulent conveyances 225- Retention of check for pro rata share of proceeds of bulk sale of grocery held to preclude creditor from levying on proceeds in agent's

hands.

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DENISON, J. The company, defendant in error, had execution on a judgment before Rice, justice of the peace, against one Boulter, and served a garnishment summons on Kinney and the Hamilton National Bank. The bank paid the amount of the judgment into the justice court. The county court, on appeal from the justice of the peace, rendered judgment for the whole amount against Kinney, and he brings the case here on error. The justice paid the money to defendant in error.

The facts were stipulated. Boulter, a grocer, became insolvent, and gave Kinney sell all his property and distribute the proa power of attorney to run his business, or ceeds pro rata among his creditors. Kinney sold the property in bulk to one Flood, deposited the money in the Hamilton National Bank, and drew a check payable to each creditor for his share. The defendant in error received and retained, but did not collect, or attempt to collect, its check, and four or five days later sued out the execution. The question is whether this fund in Kinney's hands was subject to garnishment by the company.

[1] The plaintiff in error claims that this power of attorney was equivalent to an assignment for the benefit of creditors. The statute (C. L. § 6242), however, requires the deed of assignment to be acknowledged, and says that when "filed for record" it "shall vest" title in the assignee; that an inventory and bond must be filed in the district court, and until then the assignee may not dispose of the property. It does not appear on the record here whether any of these things was done. If the power of attorney was not recorded, no title passed to the assignee. The plain and necessary inference from the provision that the instrument "when filed * shall vest" is that when not filed it shall not vest. Mosconi v. Burchinell, 7 Colo. App. 435, 43 P. 912.

[2] The burden is on one claiming under a deed to plead the instrument and prove the facts which show it to be valid. 28 C. J. 309, § 467. Thompson v. Dyer, 100 Me. 421, 62 A. 76; Wise v. Reed, 79 Wash. 134, 139 P. 753. The original title was confessedly in Boulter. There being no pleadings, Kinney need not plead, but must prove the facts showing his title, i. e., a valid transfer of title from Boulter to him. He has not done so. The record, then, shows no title to have had no right to sell as assignee. passed to him by the transaction, and he

It is held in Palmer v. McCarthy, 2 Colo. App. 422, 31 P. 241; Burchinell v. Mosconi, 4 Colo. App. 401, 36 P. 307, and in Mosconi v. Burchinell, 7 Colo. App. 435, 43 P. 912,

Frederick P. Cranston, of Denver, for that, when the assignee does not file the inplaintiff in error.

ventory, he is not an assignee; the deed to

Harry Sobol, of Denver, for defendant him is void. The plaintiff in error then in error. was a mere agent with authority to sell, and

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