Bradford v. People , 22 Colo. 157 ( 1896 )

Chief Justice Hayt

delivered the opinion of the court.

It appears from the record that after the case had been set for trial upon a number of dates and the trial upon each occasion continued, the case was finally set for trial upon the 18th day of January, 1892. Before the case was reached upon this latter date, the defendant interposed a petition for a change of venue. This petition was overruled, and this ruling of the court is challenged by plaintiff in error’s first assignment of error; but as neither the petition for a change of venue nor the affidavits filed in support thereof are preserved in the bill of exceptions, these papers are not before this court for review.

The statute in this state provides “ that unless otherwise directed the practice in criminal cases shall be according to the course of the common law.” The statute makes no provision for bringing up for review petitions for changes of venue except by bills of exception, and in no other way can such questions be saved for review. 2 Elliot’s General Practice, sec. 503; Fitnam’s Colorado Practice, sec. 597; Van Houton v. The People, ante, p. 53.

At the trial the defendant offered himself as a witness in his own behalf. Upon cross-examination he was required to write in the presence of the jury against the objection of his counsel, and this constitutes the second assignment of error discussed in this court. The law in reference to the admission of writings for the purpose of comparison is the same in criminal as in civil cases.

In Wilber v. Micholtz, 5 Colo. 240, it was held that papers could not be introduced for the purpose of comparison merely, but where the papers belonged to the files in the cause, or have been previously received in evidence, and are admitted to be genuine, either the witnesses or jurors might make comparison for the purpose of forming an opinion concerning the handwriting. Although this is the general rule, it is well settled that where a witness has denied writing a document, which is alleged to be a forgery, or has denied his signature thereto, he may be called upon on cross-examination to write in open court, in order that the jury may compare such writing with the writing controverted. 2 Taylor’s Evidence (4th ed.), sec. 1669; Wharton’s Criminal Evidence, sec. 550; Chandler v. Le Barron, 45 Me. 544; Sanderson v. Osgood, 52. Vt. 309; Huff v. Nims, 2 Neb. 363; Doe v. Wilson, 10 Moore’s P. C. 530; Brooks v. Tichborne, 5 Exch. 929.

The benefit of this kind of cross-examination is well illustrated in this ease. The check alleged to have been forged was for the sum of twenty-four dollars and sixty cents ($24.60), the word “four” in the check having been written “ foure,” and in the writing executed by the defendant upon the witness stand the same orthography is used.

In so far as the objection to this testimony is based upon the personal privilege of the witness, there are two sufficient answers: First, this objection must be made by the witness himself to be available ; second, having offered himself as a witness in the case in his own behalf, he thereby waived the privilege.

The third assignment of error raises the question of the admissibility of the evidence of one Taylor, a witness for the state. This witness was introduced as an expert on handwriting. Taylor was examined with reference to his competency, and his answers were sufficient to satisfy the trial judge. We think there was no error in the ruling in this behalf. The weight of the evidence of an expert must be left to the jury, while its competency must be determined by the court. The witness Taylor testified that he was at the time “ the individual bookkeeper at the People’s National Bank; ” that he had held the position for upwards of two years, and that as such officer he was daily required to examine handwriting; “ that he should know in a minute whether a check was all right or not.” We think that his answers show that his knowledge of handwriting was superior to the knowledge of the average juror, and that his testimony was competent.

Under the fourth assignment of error, counsel claim that the evidence is not sufficient to convict defendant in error. This conclusion is not, however, shared by this court. We think the evidence amply sufficient to warrant the verdict of the jury.

The fifth assignment of error is based upon the fact that the instructions of the court below to the jury were oral. This assignment is disposed of by reference to the statute, which permits instructions to be given orally, unless the state or the defendant requests the court to instruct in writing. Mills’ An. Stats., sec. 1468. In this case the defendant expressly waived his right in this regard.

The instructions given, although brief, correctly state the law of the case, and. with sufficient fullness to he readily understood by the jury.

It is claimed, in conclusion, that the court erred in setting aside its sentence rendered on the 28th day of Januaiy, and giving a new sentence on the 31st. In support of this claim, it is urged that at the time the latter sentence was rendered the defendant had already been imprisoned on the former for a period of three days.

In cases where the defendant has entered upon the execution of a valid sentence, it is well established that such sentence cannot be set aside and a new sentence entered. The sentence in this case was for the full term of one year in the state penitentiary, and his incarceration in the county jail of Arapahoe county, temporarily or otherwise, could not be credited upon his term; it was simply a means to an end, in order that the defendant might not escape until he could be safely conveyed to and lodged in the state penitentiary. It was no part of his sentence under the statute, and the time so spent could not be deducted from his term, as it is provided that the term shall be computed from and including the day on which he is received into the penitentiary. Mills’ An. Stats., sec. 3459.

If, however, the position of counsel for plaintiff in error is sound, which we deny, it would not authorize the discharge of the prisoner, for if the second judgment, which in terms sets aside the first, is void, then the first is still in full force and effect, and must be executed. As a general principle, however, the judgments, orders and decrees of courts are under their control during the term at which they are rendered, and “may be set aside or modified as law and justice may require.” Ex parte Lange, 18 Wall. 163; 1 Bishop’s Criminal Practice, 1298.

Finding no error in the record, the supersedeas heretofore issued will be vacated, and the prisoner remanded to the custody of the sheriff, in order that the sentence of the disf tricfc court may be carried into execution.

Affirmed.