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(230 P.) need not consider. There is an objection to I 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

Error to District Court, City and County willfully and wantonly or recklessly. The of Denver; Geo. F. Dunklee, Judge. testimony is undisputed that they accepted the line pointed out to them by the former

Calloway Ware was convicted of second

Reowner of the property.

degree murder, and he brings error.

versed and remanded. There was nothing to justify a submission to the jury of the question of exemplary

John M. Glover, of Denver, for plaintiff damages. For the reasons above stated, the in error. judgment is reversed.

Wayne Williams, Atty. Gen., and Harold

Clark Thompson, Asst. Atty. Gen., for the CAMPBELL and SHEAFOR, JJ.,

People. concur.

SHEAFOR, J. Plaintiff in error. defend. ant below, and so designated here, was con

victed of murder of the second degree, and WARE v. PEOPLE. (No. 10807.)

sentenced to a term in the penitentiary of (Supreme Court of Colorado. Oct. 6, 1924.) not less than ten years nor more than eleven

years. He brings the case here for review. 1. Witnesses 380 (5)-Party voluntarily

It is assigned as error that the court calling witness cannot contradict him by erred in allowing the people to call, lead, proof of prior statements.

Party cannot contradict witness, volun- cross-examine, and impeach witnesses Kentarily called by him, by proof of his prior ny, Peach, and Cowns. It appears from statements.

the record that on February 20, 1923, at the

hour of ten o'clock p. m., in the washroom 2. Witnesses -380(7)–Party required by of the Denver & Rio Grande railroad shops, law or ordered by court to produce witness in the city of Denver, the defendant shot may impeach him by proof of prior state and killed Oscar Sibley. Both the defendments. Witnesses, whom law requires or court or

ant and the deceased were colored, and were ders party to produce, are not voluntarily call-employed at the time of the homicide at the ed, and their truthfulness and integrity are

Denver & Rio Grande shops in Denver. The not vouched for by such party, who may im- only eyewitnesses of the homicide were Jospeach them by proof of their prior statements. eph Peach and Willie Cowns.

Andrew J. Reynolds, deputy district at3. Criminal law Ow666(1)-Prosecuting officer

may use discretion as to what witnesses he torney, was called as a witness by the people will call.

and testified, inter alia, that he took stateProsecuting officer need not call witness, ments the next day after the shooting from whose testimony he knows or has reason to the witnesses Peach and Cowns; that the believe will be adverse, or produce all wit statements were taken down by a stenesses to crime, nor eren all those whose nographer; that they were afterwards writnames are indorsed on information or ten out on a typewriter, and signed by the eyewitnesses but may try case in his own way parties. He further testified as to the ques. and use his own discretion as to what witness- tions which had been propounded to the wites to call, so long as he acts in good faith.

nesses in the statements and their answers 4. Witnesses e322-Prosecutor held

not thereto. The statements made by these compelled to call, and so not entitled to im- witnesses, testified to by Reynolds, differed peach, testimony of eyewitnesses, by proof materially from the evidence given by them of contrary statements day after shooting.

upon the trial, and Reynolds' testimony was Prosecutor held not compelled to call eye- introduced for the purpose of impeaching witnesses, whom he must have known, from them. their testimony before coroner's jury and

The question here presented seems never other evidence, would testify adversely to his contention for verdict of first degree murder to have been determined in this jurisdiction. with death penalty, and hence, was not entitled It is conceded that as a general rule a party to impeach them by proof of contrary state-cannot directly impeach his own witness, ments taken day after shooting.

but it is claimed by the people that there 5. Witnesses a380 (1) – Evidence impeaching that the instant case falls within one of the

are important exceptions to this rule, and state's witnesses inadmissible in state's behalf, in absence of surprise by adverse testi. exceptions. On this question, the cases are

far from being in harmony. mony.

In 28 R. C. L. 614, it is said: Evidence of prior conflicting statements by state's witnesses, testifying adversely to state, "And in a number of jurisdictions it is held held inadmissible on latter's behalf, in absence 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

were

examination of a witness called by him may not, 221 Ill. 591, 77 N. E. 1112, 6 Ann. Cas. 220; only interrogate the witness as to previous in- People v. Johnson, 13 Cal. App. 776, 110 P. consistent statements made by him, but if the 965; State v. Campbell, 73 Kan. 688, 85 P. witness denies having made such statements 784, 9 L. R. A. (N. S.) 533, 9 Ann. Cas. 1203. may prove the same to impeach him. On the

In Dillon v. State, supra, the court said: other hand, in many of the states the rule forbidding a party to impeach his own witness is “The rule requiring the state to call eyedeemed to preclude the admission of proof witnesses in a homicide case became well es by him of previous inconsistent statements by tablished in the English system of jurispruthe witness to avert the effect of unexpect- dence at a time when a defendant himself was edly unfavorable testimony given by him." 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 can

nied the right of counsel. The rule no doubt contradict his own witness by proof of his was adopted to mitigate the rigor and harsh

ness 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, capital punishment, was placed by the English 54 L. R. A. 410; Murphy v. State, 120 Md. system of jurisprudence as it was. While the 229, 87 Atl. 811, Ann. Cas. 1914B, 1117; reason for the rule has ceased to exist, some Selover V. Bryant, Minn. 434, 56 N. W. courts still adhere to the ancient doctrine. 58, 21 L. R. A. 418, 40 Am. St. Rep. 349;. People v. Deitz, 86 Mich. 419, 49 N. W. 296; Lindquist v. Dickson, 98 Minn. 369, 107 N. Territory v. Hanna, 5 Mont. 248, 5 P. 252. W. 938, 6 L. R. A. (N. S.) 727, 8 Ann. Cas.

* To adopt it is to require the state 1024; State v. D'Adame, 84 N. J. Law, 386, to call a witness to establish its case whom the 86 A. 414, Ann. Cas. 1914B, 1109. The fol- or has been corrupted, and is willing to com

prosecuting attorney may believe is dishonest, lowing cases, among others, hold the contrary mit perjury to aid the accused, either from doctrine: Hickory v. United States, 151 U. motives of friendship, interest, or relationship. S. 303, 14 S. Ct. 334, 38 L. Ed. 170; Chicago * * Prosecutions in criminal cases should City R. Co. v. Gregory, 221 Ill. 591, 77 N. E. be carried on without malice and without de1112, 6 Ann. Cas. 220; Rhodes v. State, 128 sire or intent on the part of the prosecution Ind. 189, 27 N. E. 866, 25 Am. St. Rep. 429; to secure a conviction where the evidence does Hall v. Manson, 99 Iowa, 698, 68 N. W. 922, not warrant it. On the other hand, it would 34 L. R. A. 207; Erdman v. State, 90 Neb. seem to be proceeding beyond the bounds of

reason or of justice to require the state in all 642, 134 N. W. 258, Ann. Cas. 1913B, 577.

instances to call all eyewitnesses to the com[1, 2] We think the weight of authority, mission of an alleged crime. The weight of and the sounder and better rule, is that a authority in this country is certainly against party cannot contradict a witness, voluntari- the contention of the defendant.

It ly 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 nesses, and therefore should be allowed to think the claim here made, that Gibson was

to judicial discretion.

We do not 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 [4] In the instant case, we think the prosev. Hall (D. C.) 44 F. 864; Thompson v. Owen, cutor was not compelled to call Peach and 174 Ill. 229, 51 N. E. 1046, 45 L. R. A. 682, Cowns to testify. He may have desired, and and others.

honestly and in good faith believed, that he [3] But the prosecuting officer is not was entitled to obtain a verdict of murder of obliged to call a witness whose testimony the first degree with the death penalty imhe knows, or has reason to believe will be posed as the punishment. But even so, the adverse; he is not required to produce all people were not obliged to call Peach and witnesses whose names are indorsed on the Cowns as witnesses in view of the fact that information; he is not obliged to call all it is apparent, from the record, the district witnesses to the crime; he is not obliged to attorney must have known before calling call the only eyewitnesses to the crime, and them that they would give adverse testimony; he may try his case in his own way and use and furthermore, the impeaching evidence his discretion to what witnesses he could not have the effect of establishing the will call, so long as he acts in good faith. truth of the subject matter of the statements, Keller v. State, 123 Ind. 110, 23 N. E. 1138, the effect thereof being only to detract from 18 Am. St. Rep. 318; State v. Middleham, the weight to be given to the testimony of 62 Iowa, 150, 17 N. W. 416; State v. David, the witnesses. 131 Mo. 380, 33 S. W. 28; Dillon v. State, [5] Moreover, it appears the district at137 Wis. 655, 119 N. W. 352, 16 Ann. Cas. torney was not surprised by the testimony 913; Chicago City Railway Co. v. Gregory, given by these witnesses. The record shows

as

(230 P.) that the witnesses Peach and Cowns had those things which he is professedly introduced testified before the coroner's jury several to prove, some evidence at least of surprise days after their statements were obtained ought to be required to overcome the preby the officers on the evening of the homi- sumption, for otherwise the exception would

absorb the rule." cide, and their testimony there was material. ly different from their statements previously made.

We are of the opinion that the court erred The district attorney must have in admitting the impeaching testimony of known what their evidence was before the coroner's jury. There is other evidence in Reynolds, and for this the case must be

reversed. It is not necessary to consider the record showing that the prosecutor knew

the other assigned errors. before these witnesses were placed on the

Reversed and remanded. stand that they would not testify in harmony with their previous statements. In fact no surprise was claimed by the district attorney.

TELLER, C. J., and DENISON, J., not In 28 R. C. L. 646, it is said:

participating. “So, in order to bring himself within the exception to the general rule against the im

HALL HOTEL CO, V. STILLE. peachment of one's own witness, it must appear that the party calling the witness was

(No. 11001.) entrapped by his previous statements into put. (Supreme Court of Colorado. July 7, 1924. ting him on the stand and was surprised by

Rehearing Denied Nov. 10, 1924.) his testimony."

1. Landlord and tenant 290(3)-Demurrer The following cases are cited in support

to defense that defendant was entitled, under of the text: In re Dolbeer's Estate, 153 Cal. lease, to renewal held properly overruled. 652, 96 P. 266, 15 Ann. Cas. 207; Fearey v. Demurrer to defense to suit in unlawful O'Neill, 149 Mo. 467, 50 S. W. 918, 73 Am. detainer that defendant performed lease, and St. Rep. 440.

exercised option therein to renew, held properIn Ann. Cas. 1914B, 1133, a large number ly overruled. of cases are cited to sustain the text above 2. Landlord and tenant am 291 (11)-In unlaw. quoted from 28 R. C. L. 646.

ful detainer, defendant, claiming exercise of In People v. Crespi, 115 Cal. 50, 46 P. 863, renewal option, must prove performance. it was held:

In unlawful detainer, defense being defend"The court refused to admit the impeaching ant tenant's exercise of renewal option, deevidence. This ruling is complained of. It

fendant has burden of proving performance of was clearly right. It was an attempt by a the lease conditions entitling him to exercise

the option. party to impeach his own witness, not because that witness had given hostile evidence 3. Appeal and error en 1064(1) Instruction which had taken him by surprise, but because on tenant's right to renew lease, if landlord he did not admit what was sought to be elicit was ignorant of default, held prejudicial er. ed from him. Indeed, he was apparently ques ror as relieving tenant of burden of proving tioned for the sole purpose of impeachment. faithful performance. Such practice is not permissible."

Where defense to unlawful detainer was In Moore v. Chicago, St. L. & N. O. R. Co., was prejudicial error to instruct that "to enexercise of option under lease to renew,

it 59 Miss. 243, it was said:

title the plaintiff to refuse to renew "While we recognize the right of a party who refusal must be made in good faith, and based has been entrapped into introducing, and is upon actual facts known to the plaintiff,” since surprised by the testimony of an unfriendly such instruction, in effect, told the jury that witness, to impeach his credibility by giving tenant could recover, notwithstanding he might evidence of other and different statements not have performed lease, if landlord was igmade by him, we nevertheless think it was er

norant of default at time he refused to renew, ror to permit it to be done in this case, for and this relieved tenant of burden to prove the reason that no showing was made by the faithful performance. plaintiff, by his own affidavit or otherwise, that

4. Landlord and tenant 86(1)-Refusal to the testimony of the witness operated as a surprise on him, and because we think it fairly

renew not necessarily arbitrary because ten

ant's default unknown. inferable from the other facts shown in the record that the plaintiff and his counsel antici

While refusal to permit tenant to exercise pated that the witness would testify in effect

option to renew must be in good faith, reas he did, and introduced him after they had fusal is not shown necessarily to be arbitrary received information that he had declared his by the mere fact that the facts of the tenant's intention not to adhere to the statement of the default were unknown to lessor when so refacts as contained in his letter. * * * But

fusing. where the facts or circumstances suggest the presumption that the party introducing a wit

Department 3. ness does so with knowledge of the fact that

Error to County Court, City and County of his testimony will not be in accordance with | Denver; G. A. Luxford, Judge.

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

*

Unlawful detainer by the Hall Hotel Com- , fully performed all the conditions, covenants, pany against Fred Stille. Judgment for de and agreements of the old lease, and is entitled fendant, and plaintiff brings error.

Re-to a new lease for a term of two years beginversed.

ning December 1, 1923. The plaintiff has re

fused to execute such new lease. You are Ponsford, Pender & Larwill, of Denver, instructed that, to entitle the plaintiff to refor plaintiff in error.

fuse to renew the lease according to its terms, J. M. Wardlaw, of Denver, for defendant the refusal must be made in good faith and in error.

based upon actual facts known to the plaintiff, and such refusal must not be a dishonest, pre

tended, arbitrary, capricious, unjust, or mer. SHEAFOR, J. Plaintiff in error, plaintiff cenary refusal for dissatisfaction.” in the court below, brought this suit in justice court in unlawful detainer to recover

[1] The plaintiff's first contention cannot possession of certain real estate. Plaintiff be sustained. Adcock v. Lieber, 51 Colo. 373, is the owner of the real estate in controversy, 117 P. 993, is authority for the court's ruland defendant was in possession under a ing, and we think it is decisive of the queslease which expired by its terms on Decem-tion raised here. The demurrer was propber 1, 1923. On November 28, a notice in

erly overruled. writing for the surrender of possession of

[2] As to the second proposition, we think the premises was served upon the defendant. the plaintiff's contention is correct. If it be Defendant, on November 9, informed plain- true, as we hold, that defendant had a right tiff in writing that he would exercise his to allege and prove as a defense that he was right, by virtue of an option contained in given an option to again lease the premises the lease, for a further lease of the premises upon his faithful and full performance of all for a period of two years following the ex- the conditions, covenants, and agreements piration of the then existing lease, and again contained in the lease, and to allege and so notified plaintiff in the afternoon of De- prove that he had faithfully and fully percember 1. The option in the lease upon formed them, then it would seem to follow which defendant relies reads:

that, while he could not in the present ac“Further, that after the expiration of this tion have a decree for specific performance lease, if all of the above conditions, covenants of the lessor's contract, yet, in an action to and agreements of the lessee have been faith-enforce the contract, he must allege and fully and fully performed by the said lessee prove the same facts as required of him to to the satisfaction of the lessor, the said lessee defeat the plaintiff in this action. If, in an shall have the option of again leasing the prem- action for specific performance, the defendises described as aforesaid, for a period of ei. ant could not establish that he had faithther one or two years, at a yearly, rental fully and fully performed all the conditions equivalent to the yearly rental provided for in of the lease, he must fail, and this, of course, this lease."

would be true whether or not plaintiff had

knowledge of the defendant's failure to perFrom a verdict and judgment in the jus

form. It follows, then, that plaintiff could tice court, an appeal was taken to the coun- refuse to renew the lease, if defendant had ty court.

not faithfully and fully performed all the For a second defense, the defendant set conditions of the lease, whether plaintiff up the option, alleged performance of all the knew or was ignorant of defendant's failure conditions of the lease, and the giving of the

to perform. notices referred to. Plaintiff demurred to

[3] The instruction given told the jury, in the second defense, which was overruled. effect, that the defendant could recover, notFrom a verdict and judgment against it in withstanding he might not have faithfully the county court, the plaintiff prosecutes this and fully performed all the conditions of the writ of error, and applies for a supersedeas. lease, if the plaintiff was ignorant of the

The only errors assigned and discussed default at the time he refused to renew the are: (1) That the trial court erred in over- lease, and this relieved the defendant of the ruling plaintiff's demurrer to the second de burden of proving that he had faithfully and fense. (2) That the trial court erred in giv- fully performed all the conditions of the ing instruction No. 7, which reads, so far as

lea se. material, as follows:

[4] It is true that plaintiff's refusal to “The court instructs the jury that, under renew must be made in good faith, and must the lease in evidence in this case, the plain- not be a capricious and dishonest or arbitrary tiff, the Hall Hotel Company, contracted with refusal; but it is not necessarily true that, the defendant, Fred Stille, to execute a new because the facts of defendant's default were lease of the premises in controversy for a unknown to the plaintiff, the refusal was period of one or two years after December 1, not made in good faith, and that it was 1923, if the defendant faithfully and fully performed all the conditions, covenants, and agree- capricious, dishonest, and arbitrary, and not ments of the lease which expired on December based upon sufficient facts. 1, 1923, to the satisfaction of the plaintiff. The giving of this instruction constituted The defendant claims that he has faithfully and prejudicial error, for which the judgment

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(230 P.) must be reversed. Supersedeas denied, and DENISON, J. The company, defendant judgment reversed.

in error, had execution on a judgment beReversed.

fore Rice, justice of the peace, against one

Boulter, and served a garnishment summons TELLER, C. J., and CAMPBELL, J., con on Kinney and the Hamilton National Barz. cur,

The bank paid the amount of the judgment
into the justice court. The county court, on
appeal from the justice of the peace, ren-
dered judgment for the whole amount against

Kinney, and he brings the case here on
KINNEY v. YOELIN BROS. MERCANTILE

error. The justice paid the money to deCO. (No. 10808.)

fendant in error. (Supreme Court of Colorado. July 7, 1924. The facts were stipulated. Boulter, a

Rehearing Denied Nov. 10, 1924.) grocer, became insolvent, and gave Kinney 1. Assignments for benefit of creditors. 163 sell all his property and distribute the pro

a power of attorney to run his business, or -Unrecorded power of attorney to distribute assets held not assignment for creditors.

ceeds pro rata among his creditors. Kinney Unrecorded power of attorney to sell gro

sold the property in bulk to one Flood, de cery and distribute proceeds pro rata among posited the money in the Hamilton Nationprincipal's creditors held not to be assignment al Bank, and drew a check payable to each for benefit of creditors; C. L. $ 6242, requiring creditor for his share. The defendant in deed to be acknowledged and filed for record error received and retained, but did not colbefore title vests.

lect, or attempt to collect, its check, and 2. Deeds Owo 196(1)-Burden on claimant un

four or five days later sued out the execuder deed to plead it and prove it valid.

tion. The question is whether this fund in Burden is on one claiming under deed to Kinney's hands was subject to garnishment plead instrument and prove facts which show by the company. it to be valid.

[1] The plaintiff in error claims that this 3. Fraudulent conveyances en 47, 225–Sale in power of attorney was equivalent to an violation of Bulk Sales Law Invalid; creditor assignment for the benefit of creditors. The by attaching proceeds of bulk sale held to statute (C. L. § 6242), however, requires the have affirmed sale, and proceeds thereby be- deed of assignment to be acknowledged, and came subject to execution.

says that when “filed for record" it "shall Where agent, under power of attorney to vest" title in the assignee; that an invensell grocery and divide proceeds pro rata tory and bond must be filed in the district among principal's creditors, sold property in court, and until then the assignee may not bulk, sale was void as to creditors, under Bulk dispose of the property. It does not appear Sales Law; but, where creditor attached proceeds in agent's hands, he thereby affirmed things was done. If the power of attorney

on the record here whether any of these sale, and money became subject to execution.

was not recorded, no title passed to the as4. Fraudulent conveyances w225 — Retention signee. The plain and necessary inference

of check for pro rata share of proceeds of from the provision that the instrument bulk sale of grocery held to preclude credi- “when filed

shall vest" is that tor from levying on proceeds in agent's when not filed it shall not vest. Mosconi y. hands.

Burchinell, 7 Colo. App. 435, 43 P. 912. Where grocery owner gave power of attor

[2] The burden is on one claiming under ney to agent to sell business and divide proceeds pro rata among creditors, and sale made a deed to plead the instrument and prove the

28 C. J. was void, under Bulk Sales Law, creditor, by facts which show it to be valid. retaining check for pro rata share, held to have 309, § 467. Thompson v. Dyer, 100 Me. 421, affirmed action of agent, and not entitled to | 62 A. 76; Wise v. Reed, 79 Wash. 134, 139 execution against proceeds in agent's hand. P. 753. The original title was confessedly

in Boulter. There being no pleadings, KinDepartment 2.

ney need not plead, but must prove the facts Error to the District Court of the City showing his title, i. e., a valid transfer of and County of Denver; Hon. George W. title from Boulter to him. He has not done Dunn, Judge.

so. The record, then, shows no title to have

passed to him by the transaction, and he Action by the Yoelin Bros. Mercantile Com- had no right to sell as assignee. pang against C. N. Kinney, trustee. Judg

It is held in Palmer v. McCarthy, 2 Colo. ment for plaintiff, and defendant brings

pp. 422, 31 P. 241; Burchinell v. Mosconi, Reversed, and new trial granted.

4 Colo. App. 401, 36 P. 307, and in Mosconi See, also, 74 Colo. 295, 220 P. 998.

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

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error.

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