Opinion
No. 12,852.
Decided February 8, 1932. Rehearing denied April 18, 1932.
Plaintiff in error was convicted of murder.
Affirmed.
1. APPEAL AND ERROR — Criminal Law — Sufficiency of Evidence. Evidence reviewed in a homicide case and held sufficient to support a verdict of guilty.
2. CRIMINAL LAW — Defendant not Testifying — Effect. Where defendant in a criminal case, having the opportunity, fails to testify in her own behalf, she cannot complain on review that the jurors drew inferences against her which were warranted by the evidence.
3. WITNESSES — Husband and Wife — Criminal Law. A husband may testify against his wife in a criminal proceeding whenever he is the individual particularly or directly injured or affected by the crime for which she is being prosecuted.
4. CRIMINAL LAW — Remarks of District Attorney. In a prosecution for murder, a statement of the district attorney in opening the case to the jury, that defendant had admitted she committed the act, held not error under the disclosed facts and circumstances, the record failing to show that defendant's rights were prejudiced by the remark.
5. Evidence — Statements of Defendant. Admission of evidence in a criminal case concerning statements of defendant, not a confession of guilt but in the nature of an alibi, held not to be reversible error.
6. Unsworn Statement of Defendant to Jury. In the trial of a criminal case, there was no error in the refusal of the court to permit defendant to make an unsworn statement to the jury.
Error to the District Court of the City and County of Denver, Hon. Henley A. Calvert, Judge.
Mr. JOHN M. KEATING, Mr. JOHN W. SHIREMAN, Mr. JOHN T. WEISZ, for plaintiff in error.
Mr. CLARENCE L. IRELAND, Attorney General, Mr. EDWARD J. PLUNKETT, Assistant, for the people.
Mr. HORACE N. HAWKINS, Mr. KENNETH W. ROBINSON, Mr. MAX D. MELVILLE, amici curiae on petition for rehearing.
PEARL O'Loughlin was convicted in the Denver district court of murder in the first degree and sentenced to life imprisonment at hard labor in the state penitentiary, to review which this writ is prosecuted.
Her assignments of error will be grouped and considered as follows: (1) Sufficiency of the evidence; (2) the admissibility of the testimony of her husband, Leo O'Loughlin; (3) the opening statement of the district attorney; (4) the admissibility of the testimony of Captain Clark; (5) refusal to permit defendant to make a statement not under oath.
The information charged that: "On the Fourteenth day of October, A. D. 1930, at the said City and County of Denver, State of Colorado, Pearl O'Loughlin, did unlawfully, feloniously, wilfully, deliberately and of her premeditated malice aforethought, kill and murder one Leona O'Loughlin."
The prosecution contended that the defendant planned to kill her step-daughter, Leona, aged 10, Leo, the child's father, and Dennis O'Loughlin, his father, and pursuant thereto placed crushed glass in food consumed by Leona and Leo and in a sugar bowl used by Dennis O'Loughlin; that between the hours of seven and ten-thirty on the night of October 14, 1930, defendant struck Leona on the head with an automobile tire iron and threw her body in Berkeley Lake where it was discovered on October 17th.
The record comprises three volumes, 2394 folios and numerous exhibits. The proof of guilt was based entirely upon circumstantial evidence.
Leo O'Loughlin married the defendant in January, 1929. He had a daughter, Leona, aged 10 and she a son, Douglas Millican, aged 8, by a former marriage. For some months prior to the homicide, they resided with their children and Leo's brother, Frank, at 2320 Tremont street. During this time Leo was employed by the City and County of Denver as a detective working a night shift. Their marital relations were marred by three separations and threatened divorce.
In August, 1930, the defendant, her husband and Leona visited the home of Dennis O'Loughlin, Leo's father, at Fort Collins. Defendant helped prepare dinner. After this visit Dennis found crushed glass in his sugar bowl. Thereafter nothing unusual happened in their home until the night of October 10th. Mrs. Marybelle Shannon, defendant's sister, and one of her sons ate dinner with them. Upon returning from work, Leo was given a drink of Ovaltine prepared by defendant and "no sooner hit the bed than the room was whirling." Mrs. Shannon owned a cat and a dog. The cat died on the night of October 10th and the dog two days later. An examination of the viscera of these animals revealed the presence of "a very small quantity of glass." Mrs. Shannon stated that her sister had once before October 10th, given her scraps from the table to feed to her animals, but denied that on the night of October 10th, any scraps were taken by her or fed to the animals.
Defendant prepared all meals served in her home. The evening meal of October 14th consisted of lamb chops, potatoes and rice. Leo testified "when we sat down it [the dish containing rice] was in front of Pearl. She set it over between Leona and I. I remember after she helped Douglas with lamb chops and potatoes he asked for rice; she told him no, he couldn't have any; that is, she turned him down, wouldn't let him have any." Leo had two helpings of rice and Leona one tablespoonful "after Pearl asked her to"; that night Leo returned to work at six-fifty accompanied by Detective Jones. Leona was last seen alive by Leo at that time.
Frank O'Loughlin testified that on the night of the 14th, he came home "between quarter of seven and half past seven, I went right straight to my room." "It was about quarter after eight, or maybe a little after that, that I had got in bed." "I heard Leona and Douglas at the bathroom door; my door was closed; I didn't see them, but I heard them; after that I never heard Douglas, or never heard Leona, or I never heard anybody. A little after that, I heard the door close downstairs." "I recollect that Leona had a cold, and I used to hear her back sometimes at night, when she was coughing." "It seems, right up to that night, I had heard her cough." "I did not hear any coughing that night."
At about ten-thirty that evening, defendant appeared at the home of Mrs. Ethel Sparr, an intimate friend who lived at 2476 West Argyle place, North Denver. She wore a housedress and shoes but no stockings. Mrs. Sparr testified: "When she first got there, did you have any conversation about the time?" "No, we didn't; but about the time she was — when I asked her where she had been, she said, 'have been here since eight o'clock.' I said, 'But you haven't been here since eight o'clock.' I said, 'All right.' She said, 'I have taken June to a doctor. This is the fourth time that I have taken her.'"
June Sorensen testified that she had been a friend of the defendant for about two years; that she had neither seen nor accompanied defendant to a doctor's office on the night of October 14th.
Leo stated that on the night of October 14th, "Pearl met me at the Hall about a quarter of twelve. She was in my car. She had on shoes and stockings. We arrived home at midnight or a little before. Frank was home and in bed. Pearl entered Douglas' room but she didn't enter Leona's room." The next morning Leo went to work about seven o'clock and returned home at about ten-thirty a. m. very ill. Defendant then told him "about Leona being missing went off without her breakfast." Leo's condition grew worse and he was confined to his bed at home until Friday, October 17th, when he was removed to St. Joseph's Hospital, remaining there until the following Tuesday.
The body of deceased was discovered in Berkeley Lake, Denver, on October 17th. An autopsy performed thereon revealed two scalp wounds apparently caused by a blunt instrument and several scalp bruises and that death was caused by concussion and asphyxiation. The stomach contained food which had been in process of digestion two or three hours indicating that death had occurred within two or three hours after this food had been consumed. An examination of this food content disclosed the presence of "about a teaspoon and a half of crushed glass." An enema taken from Leo O'Loughlin "was examined for glass and glass was found to be positive." The contents of a cup of sugar taken from the home of Dennis O'Loughlin disclosed that "the material was a combination of sugar and glass." Spots on a tire iron taken from the trunk on the rear of the O'Loughlin car which had been driven by defendant on the night of the homicide "proved to be blood. They were human blood." There was sand in Leona's clothing when her body was removed from Berkeley Lake. There were particles of similar sand on the tire iron when it was found. Upon examination of the kitchen at 2320 Tremont street, Walter Byron, a detective, testified that he had there found small particles of glass "on the sink board and on the floor immediately under the sink board."
The prosecution sought to prove certain statements made by defendant during her incarceration in the city jail. Objection was made thereto by defendant on the ground that all such statements were involuntary and made under duress, physical and mental. The jury was excluded, a lengthy hearing was had and the court sustained defendant's objection and excluded all such proffered testimony and instructed the jury that the defendant's objections had been sustained and that "it is not proper to have that testimony before the jury, as to any statements that she may have made, or that may be claimed that she made, at the City Hall. The main reason that the court excluded it is because she was kept up unreasonable hours in the night to be quizzed."
The testimony of Albert Clark, captain of detectives, admission of which is attacked by defendant, follows: Clark had a conversation with defendant on November 5th in the county jail. Defendant stated to Clark: "She could clear herself and that she would show Leo that she could, and he asked her how and she said that that night of the 14th, she had received a telephone call, and after receiving this telephone call, she went down to the corner to the mail box, and got out from under a rock, a telegram, by the mail box, and went back to the house, got her purse, and went down to send this telegram, and when she got down she didn't have change enough to send it, or she didn't know anything about sending telegrams, and she went back to the house and got that bill, I believe is the way she put it — the bill, or a bill — and went back to the telegraph office and had sent this wire, and then when she went back to the telegraph office and sent this wire, she was out with a man, and she said to Leo, 'You don't believe I was out with a man, do you?' And Leo says, 'I do not.' 'Well,' she said, 'I was.' 'Well,' Leo said, 'name him.' She says, 'If I name him,' she says, 'you will go out and get him, and Mr. Wettengel and Clark will go out and get him and charge him with accessory to the crime.' And she said Mr. Keating asked her the same question, and she wouldn't tell Mr. Keating. Mr. Keating, she said, wouldn't go get him, and she said she was afraid that he would. Leo then asked her to name the man, if she had been out with a man. He said he didn't care, if that was the truth, that is just what he wanted to know, and that he would be glad to check it out, and her not to worry about it, if that was the true story. She says, 'I will not name him.' She says, 'He is the man that I heard from, that sent me money, in Montezuma, when I was up on that vacation, when you wouldn't send me the money.' Leo says, 'I thought you said Mrs. Sparr gave you the money.' and she said, 'That is what I told you.' He insisted several times for her to tell the man, and she said she wouldn't name the man, and then he asked her how long she was out with this man, or what she did with the car, and she said she drove it over — their car — and left it by Mrs. Sparr's, and then came back there, and she told Leo — she says, `You know that there was nothing wrong, because you know my condition.'" He further testified that no telegram was either received or sent by defendant the night of October 14th.
After the introduction of the foregoing testimony the people rested.
A motion for a directed verdict for the defendant was interposed and overruled. Counsel for defendant thereupon made an opening statement wherein he stated "we will account for all of Pearl O'Loughlin's time."
Thereupon Eleanor Roberts, June Sorenson, Alta Johnson and Ethel Sparr testified to circumstances tending to show that a friendly relationship existed between defendant and Leona, but there was no testimony proving or tending to prove the whereabouts of defendant between the time she left the O'Loughlin home and arrived at Mrs. Sparr's residence at ten-thirty on the night of October 14th.
An instructor in petrology, mineralogy and petrography of the Colorado School of Mines testified at length concerning various microscopic and other examinations made of exhibits introduced by the people for the purpose of determining whether crushed glass was shown. His testimony was highly technical, but unconvincing.
The defendant did not testify in her own behalf, but her counsel made a request, which was refused by the court, that she be permitted to make a statement to the jury not under oath and not subject to cross-examination. The court remarked, "I will allow you to reopen your case and put her on the stand if you want to," but counsel stated that "he did not want the defendant to testify."
1. We believe the foregoing recital of facts demonstrates the sufficiency of the evidence to support the verdict.
The record is strangely silent as to the whereabouts of defendant from seven to ten-thirty on the night of the homicide. Her alibis were proven untrue and she refused to take the witness stand and to explain why such statements were made, and the many facts and circumstances in evidence which, circumstantially at least, proved that she had been the perpetrator of a most atrocious murder. Under these circumstances she should not now be heard to complain that the jurors found her guilty.
In Gould v. People, decided November 30, 1931, 89 Colo. 596, 5 P.2d 580, the defendant was convicted of murder upon wholly circumstantial evidence. Having failed to testify, he complained of its sufficiency. We there held: "It may well be contended that this is not an unusually strong case, and that its damning facts might be explained away. The truth, however, readily apparent, we think, from our foregoing statement, is that there is evidence to support this verdict, and that those facts were not so explained. It may be that defendant could have done this, but having the opportunity and failing to avail himself of it, he cannot now complain that the jurors drew inferences warranted by the evidence."
In Blanda v. People, 67 Colo. 541, 545, 189 Pac. 249, which involved a conviction based entirely upon circumstantial evidence, this court stated: "In Martinez v. The People, 63 Colo. 347, 166 Pac. 242, where defendant was convicted of murder, Mr. Justice Bailey, speaking for the court, said: `Circumstantial evidence may be, and frequently is, most convincing and satisfactory. * * * Defendant was given an opportunity to explain under oath the many incriminating facts and circumstances presented by the state.' So here, defendants were given an opportunity to explain any incriminating facts and circumstances in evidence on the trial. They did not have to explain. It was their privilege to keep off the witness stand and make no explanation, and the statute provides that a failure to testify shall not be taken or considered as any evidence of guilt or innocence, and they should be accorded every privilege and protection the statute affords. But when they failed to explain incriminating facts and circumstances in evidence on the trial that lay peculiarly within their knowledge, they took the chance of any reasonable inference of guilt which the jury might properly draw from the whole evidence." Here, reasonable inferences from the whole evidence, unexplained by the defendant, unmistakably brand her guilty.
2. Defendant contends that the testimony of her husband was inadmissible, being in violation of the Session Laws of 1929, page 642, which provides:
"There are particular relations in which it is the policy of the law to encourage confidence and to preserve it inviolate; therefore a person shall not be examined as a witness in the following cases:
"First. A husband shall not be examined for or against his wife without her consent, nor a wife for or against her husband without his consent; nor shall either during the marriage or afterward be, without the consent of the other, examined as to any communications made by one to the other during the marriage; but this exception does not apply to a civil action or proceeding by one against the other, nor to a criminal action or proceeding for a crime committed by one against the other."
This section has remained the law of this state since 1883 (Session Laws of 1883, p. 290). It was reenacted in 1911 (Session Laws of 1911, p. 679), being section 6563, C. L. of 1921. A construction of this statute has been before this court in Dill v. People (1894), 19 Colo. 469, 36 Pac. 229; Schell v. People (1918), 65 Colo. 116, 173 Pac. 1141 and Wilkinson v. People, 86 Colo. 406, 282 Pac. 257.
In the Dill case, it was held that a wife was a competent witness against her husband charged with the crime of perjury which was committed in making a false affidavit in a divorce action against her.
In the Schell case, bigamy was held to be a crime committed by one spouse against the other such as to permit the wife to be a competent witness against her husband.
Two legislatures have reenacted the law as it existed at the time of the Dill case, thereby placing their stamp of approval upon our construction of the statute therein indicated. The legislature of 1929 by its reenactment of the identical statute approved of our construction thereof in the Schell case.
In the Wilkinson case, the defendant was convicted of raping the daughter of his wife by a former marriage. After reviewing the Dill and Schell cases, the court states at page 411: "The principles announced in the Dill and Schell cases, supra, are sound, and have remained the law in this state for many years. If bigamy, and, under certain circumstances, perjury, are such crimes committed by one spouse against the other, as to render the husband or wife competent to testify against the offending party, it follows logically and inevitably, that rape is also such a crime. The innocent spouse is not precluded by the statute from testifying against the accused spouse, who stands charged with this offense. The innocent spouse is a competent witness, with or without the consent of the accused spouse, and such evidence is not within the prohibition of the statute. This is particularly true in this case, where the crime was committed against the natural daughter of the wife, and therefore an outrage upon nature in its dearest and tenderest relations as well as a crime against humanity itself."
The reason for the exclusion of such testimony is expressly stated in the statute. The status of husband and wife is one of those "particular relations in which it is the policy of the law to encourage confidence and to preserve it inviolate." When a spouse is charged with a crime involving a violation of the marital status such as the heinous crime here disclosed, the reason for the rule and its protection are annihilated. If rape of a stepdaughter is an "outrage upon nature in its dearest and tenderest relations as well as a crime against humanity itself" and constitutes a crime "committed by one spouse against the other," it must necessarily and logically follow that the murder by one spouse of the other's child is also a crime committed by one spouse against the other It may well be said that in this determination we have departed from the rule announced in Bassett v. United States, 137 U.S. 496, 11 Sup. Ct. 165, followed in many jurisdictions, holding that one spouse may testify against the other only in cases involving personal violence one against the other. After an examination of the many and conflicting decisions in other jurisdictions, we are satisfied that not only do reason and justice demand the broader interpretation of the statute above indicated, but also that our legislature intended that such construction should be followed.
3. Defendant contends that a remark made by the district attorney in his opening statement that "Mrs. O'Loughlin admitted she committed the act" is reversible error. The entire statement of the district attorney appears in the record. He prefaced his remarks by the following statement:
"At this stage in the proceeding it is usually customary to briefly outline the facts which the State will attempt to prove, and upon which they will rely in their effort to request a conviction at your hands. The Court will subsequently instruct you that these statements are not evidence and are not to be considered by you as such. The only purpose is that you may understand how the testimony of any particular witness relates to the case and thereby a little more readily follow the case a little more readily. What I say now is not evidence, and I am not attempting to give you exact minutes or hours, but merely a rough picture of the case as the State's evidence shows it." He then related in a narrative way the facts which he expected to prove and concluded his remarks with this statement: "We expect to show you, after questioning for a considerable length of time at City Hall, Mrs. O'Loughlin admitted she committed the act."
All statements made by defendant at city hall were excluded and the jury advised by the court its reason for such action. In submitting the case to the jury, the court gave the following instruction:
"These instructions contain the law that will govern you in this case, and in determining the facts you should consider only the evidence given upon trial. Evidence offered at the trial and rejected by the court and evidence stricken from the record by order of the court should not be considered by you. The opening statements and the arguments of counsel and the remarks of the court and of counsel are not evidence.
"The arguments, statements and objections made by counsel to the court or to each other, and the rulings and orders made by the court, and the remarks made by the court during the trial and not directed to you, should not be considered by you in arriving at your verdict. The court did not by any words uttered during the trial, and the court does not by these instructions, give or intimate, or wish to be understood by you as giving or intimating, any opinion as to what has or has not been proven in this case, nor as to what are or are not the facts in the case."
In view of the crime charged, the murder of a defenseless young child and the shockingly ruthless method of its perpetration, the opening statement of the district attorney was mild indeed. He neither attempted to prejudice the jury or to excite its passion nor to detail any statements claimed to have been made by defendant while incarcerated in the city jail. The record fails to show that defendant's rights were in fact prejudiced by the statements of the district attorney. In the absence of a showing to the contrary, and none here appears, the jurors must be presumed to be honest, intelligent, dispassionate and fair-minded men; to have faithfully performed their duties as jurors and to have complied with the instructions of the court and determined their verdict solely upon the facts in evidence. Mere possibility of prejudice is insufficient to warrant a reversal. We have had occasion to consider similar questions in the following cases.
Henwood v. People, 57 Colo. 544, 569, 143 Pac. 373. There the district attorney was repeatedly cautioned by the court not to transgress his rights and duties. In disposing of this question, the court stated: "The trial court at their request had several times admonished the District Attorney, and advised the jury to disregard statements to which objections had been made, so that it is evident the jury understood that statements which had no bearing on the case as made by the testimony were not to be regarded by them, and for these reasons we are satisfied the defendant was not prejudiced by the remarks under consideration."
Mitsunaga v. People, 54 Colo. 102, 129 Pac. 241. Objection was made that the opening statement of the district attorney narrating details of a purported confession constituted prejudicial error. Therein on page 107, it appears: "It probably would be the better practice, ordinarily, for the prosecution in opening, merely to refer to such matters, without going into details; because at the trial, the offered evidence might be excluded. In this case, however, no harm was done the defendant, because the statements were afterwards held competent, and admitted in evidence." In the instant case, the district attorney followed this suggested "better practice."
In Voris v. People, 75 Colo. 574, 227 Pac. 551, it was held: "During his closing argument counsel for the people stated, `the record shows that the defendant was convicted the second time for forgery.' It does not appear whether the idea intended to be conveyed by this statement was two convictions or two forgeries. The statement was objected to. The trial Judge, apparently assuming that it meant, or might mean, two forgeries, promptly advised the jury that there was no evidence of it and directed them to disregard it. They were likewise instructed to consider only `evidence given upon the trial' and that `the arguments of counsel are not evidence.' Under the circumstances we think there is no probability that defendant was prejudiced by the remark."
In Wilder v. People, 86 Colo. 35, 278 Pac. 594, it was held at page 45: "The district attorney, in objecting to evidence and in arguing that objection in the presence of the jury, used some questionable expressions. Under the particular circumstances here disclosed we think they were of little moment. Thereupon the jury was excused while objections were argued. On its return it was told by the court that counsel's statements should be disregarded. True, the statements were not quoted, nor the district attorney rebuked, nor mentioned by name; but since the court referred to `remarks made by counsel' `just before recess' we think the designations sufficiently specific and the error, if any, thereby cured."
In Ewing v. People, 87 Colo. 6, 284 Pac. 341, the misconduct of the district attorney in his opening statement and closing argument was assigned as error. In disposing of this contention, the court said at page 9: "The district attorney in his closing argument made several denunciatory statements concerning one who would perpetrate the crime of rape. Even if the district attorney was too vitriolic, such conduct did not constitute prejudicial error in view of the instruction given by the court that it is the duty of the jury `to consider carefully all the evidence in this case and be governed solely by it in arriving at your verdict,' and further that `the opening statements and arguments of counsel are not evidence, but are made to aid you in comprehending the evidence and the application of the law thereto."
In Weiss v. People, 87 Colo. 44, 285 Pac. 162, complaint was made that the defendant was prejudiced in the eyes of the jury by a question asked on cross-examination by the district attorney. It was there stated at page 51: "We find no error here of which the defendant can complain. Furthermore, at the conclusion of the evidence in the case, the court instructed the jury that they were to consider only evidence given upon the trial, and that evidence offered upon the trial, and rejected by the court, should not be considered by them in arriving at a verdict."
In King v. People, 87 Colo. 11, 285 Pac. 157, claim was made that the court's treatment of defendant's counsel constituted reversible error. In this case, the court gave the identical instruction given in the instant case. It was there held at page 21: "In view of this record, the remarks of the court to Mr. Mowry did not constitute prejudicial, reversible error. In any event, the instruction hereinabove quoted cured the error, assuming that one was made."
In view of these decisions and the record failing to disclose the defendant's rights were prejudiced by the remark of the district attorney, this assignment of error is unavailing.
4. It is claimed that the testimony of Captain Clark concerning statements of defendant to him was inadmissible. Counsel contends that where duress is shown it is presumed to continue until the contrary appears. Assuming this to be a correct statement of the law, the record discloses that this presumption was overthrown. The court, after hearing evidence as to the voluntary character of such statement, ruled the evidence admissible, holding in effect, that it was made voluntarily and without duress or threats. This ruling is supported by the evidence. It is to be noted that this statement was made on November 5th, about three weeks after the homicide, in the county jail and not the city jail, and after her counsel had cautioned her not to talk. Further, the statement is in no sense a confession of guilt, but is in the nature of an alibi. A similar situation occurred in Mora v. People, 19 Colo. 255, 260, 35 Pac. 179, wherein it is stated: "At the trial in the district court the accused did not go upon the witness stand, but the State, as part of its case against him, was allowed to introduce, over the objections of defendant, these various statements theretofore made by him, and afterwards introduced evidence tending to prove their falsity. The objection urged to the admissibility of these statements is that they were confessions induced by some hope or promise of a benefit, and therefore not voluntary. While we think the preponderance of the evidence tends to show that these statements were freely and voluntarily made, yet their admissibility in evidence does not depend upon such fact. An examination of these statements discloses that instead of being a confession of guilt of the crime charged, on the part of Mora, they are explanations of the incriminating circumstances brought against him, evidently intended to show his innocence of any crime."
In Byram v. People, 49 Colo. 533, 535, 113 Pac. 528, it was held: "Error is also claimed in the admission of the alleged confessions by the defendants. An examination of the record fails to disclose that either of them made a confession. The evidence complained of was that of the officers of the city of Denver in testifying to statements made to them by the defendants that they were at a certain `other' place when the crime was committed. This is in no sense a confession."
In Potyralski v. People, 53 Colo. 331, 332, 124 Pac. 742, the court stated: "There was no confession of guilt in these admissions. On the contrary, they contain a statement of defensive matter, in which the killing of the particular animal was admitted, but any purpose to steal it was denied, * * *."
In People v. Weston, 169 Cal. 393, 397, 146 Pac. 871, certain statements of defendant were objected to because involuntary. Therein the court stated: "Such statements do not constitute confessions, and the law does not require a showing that they were freely and voluntarily made, without improper inducement, in order to entitle them to be admitted in evidence."
In these circumstances the admission of the testimony of Captain Clark did not constitute reversible error.
5. The defendant claims that the court erred in refusing to permit her to make a statement not under oath and not subject to cross-examination. Apparently the common law rule permitted the accused in capital cases to make an unsworn statement to the jury at the close of the case, the reason therefor being that the accused was not a competent witness in his own behalf. In Colorado, this rule was abrogated by the enactment of section 7101, C. L. '21, which provides: "Hereafter in all criminal cases tried in any court of this state, the accused, if he so desire, shall be sworn as a witness in the case, and the jury shall give his testimony such weight as they think it deserves; but in no case shall a neglect or refusal of the accused to testify be taken or considered any evidence of his guilt or innocence."
The reasons for denying the claimed right of a defendant to make an unsworn statement appearing in the case of Reg. v. Millhouse, 15 Cox's Criminal Law Cases 622, 623, appear to us to be sound and unanswerable: "I cannot permit the prisoner to make a statement of fact to the jury, he having elected to call witnesses. To allow such a course would be to give him a most unfair advantage, especially if he were an intelligent man. If it were to be allowed, the result would be that, after counsel had made a defense and called witnesses to facts, that then the prisoner, who was not liable to be cross-examined, could supplement what had been said by his counsel and witnesses, and supply facts by means of a statement made without the sanction of an oath, which it would be impossible to test by the ordinary means of cross-examination. As the law at present stands, a prisoner not being competent to give evidence upon oath, I am of opinion that it would be most impolitic and dangerous to allow the privilege urged by Mr. Horace Browne. In my judgment, to permit such a course of procedure would be extending most unfairly the rule laid down by the majority of the judges." We conclude that the court did not err in this respect.
Other assignments of error are without merit. A diligent examination of the entire record in this case convinces us that defendant had a fair and impartial trial. She was represented by able counsel who eagerly and zealously protected her rights throughout every stage of the proceeding. The trial court acted with commendable fairness and its instructions adequately covered the law. Accordingly the judgment is affirmed.
MR. CHIEF JUSTICE ADAMS and MR. JUSTICE CAMPBELL concur.
MR. JUSTICE BUTLER specially concurs.
MR. JUSTICE BURKE, MR. JUSTICE ALTER and MR. JUSTICE HILLIARD dissent.