Balltrip v. People, 20562

Citation401 P.2d 259,157 Colo. 108
Decision Date26 April 1965
Docket NumberNo. 20562,20562
PartiesGlen Troy BALLTRIP, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
CourtSupreme Court of Colorado

William P. Dixon, Denver, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., John E. Bush, Asst. Atty. Gen., Denver, for defendant in error.

PRINGLE, Chief Justice.

Glen Troy Balltrip, the defendant below, was convicted of the second degree murder of David Bath, aged three and one-half. Balltrip brings error from the judgment and sentence.

Balltrip and Donna Margret Bath were living as common law husband and wife in a rented house trailer in a trailer lot in Aurora, Colorado. Mrs. Bath had three children by prior marriages: Von 7, Jackie 2, and David. The record discloses that, on Decomber 5, 1961, David was suffering from a severe ear infection, later diagnosed as otitis media. That morning, Mrs. Bath went to work, having left instructions with Balltrip to care for David. During the day, Jackie and David were not obedient, and Balltrip spanked them, using a one inch wide belt.

About 5:00 in the afternoon, a Mr. and Mrs. Allison, residents of a trailer near Balltrip's trailer, observed, through the window of Balltrip's trailer, that Balltrip was swinging his clenched fists at someone. They testified that at that time a child was heard crying, as loudly as a young child can. Mrs. Allison saw Balltrip pick up David from the floor and place him on the couch where she could not see the boy. The fist swinging in the area where the boy was placed on the couch then resumed and the crying began again. The crying gradually weakened and stopped, but Balltrip continued swinging for a short time.

Suddenly Balltrip appeared at the Allisons' door. His hair was disarranged, his face was sweaty and he looked 'scared.' His first words to them were that the baby was delirious. Balltrip and the Allisons went to Balltrip's trailer. David was lying on the couch with his eyes open, but he did not react to any stimulus.

David was then rushed to a hospital, where the initial examination showed him to be in a semi-comatose state, with an ear infection and a 106 degree fever. Also observed were bruises on the right mastoid area, back of the head, and on the cheek, and one inch wide welts on both arms, buttocks and both legs. Mrs. Bath testified that the bruises and welts had not been present when she left for work that morning. The efforts of the best medical specialists available were unable to save David's life. He died on December 9.

At the trial, the medical testimony indicated that David's death was attributable to external head injuries, and not to otitis media or the injuries on the child's body. The defense was that Balltrip had not hit David on the head, although in a statement to the police and once on the witness stand, he admitted 'smacking' the boy on the face. It was contended by Balltrip that if a head injury caused the death, it must have been received when David fell off the couch on which he was playing and struck his head on the stove. However, Von Bath, one of the defendant's step-sons, testified that it was Jackie and not David, who fell off the couch near the stove. The prosecution maintained that Balltrip had struck David on the head, and that the blows caused his death.

The first of Balltrip's numberous assignments of error is that the trial court erroneously denied his several motions for bills of particulars. In each of the motions a list of injuries inflicted upon David, and their relationship to his death, was sought. The law is well settled that it is within the trial court's discretion to grant or deny motions for bills of particulars, and its action will not be disturbed on writ of error in the absence of an abuse of discretion. Stewart v. People, 86 Colo. 456, 283 P. 47. There is no abuse of discretion in denying a motion for a bill of particulars where the information sufficiently advises the defendant of the charge he is to meet. Johnson v. People, 110 Colo. 283, 133 P.2d 789; 34 Rocky Mt.L.Rev. 14.

Basically, the purpose of a bill of particulars is to define more specifically the offense charged. It is not its purpose to disclose in detail the evidence upon which the prosecution expects to rely. Fischer v. United States, 212 F.2d 441 (10th Cir. 1954). The record here does not show an abuse of discretion. Nothing in the record indicates that the defendant was taken by surprise in the trial, or that his rights were prejudiced by the court's refusal to require that the information be furnished. The information here sufficiently advised Balltrip of the charge he was to meet. We accordingly hold that the trial court committed no error.

Balltrip next argues that the setting of bail at $50,000 was, in effect, a denial of bail. This question is not properly raised on writ of error to a conviction. Corbett v. People, 153 Colo. 457, 387 P.2d 409; State v. Sheppard, 100 Ohio App. 345, 128 N.E.2d 471, aff'd., 165 Ohio St. 293, 135 N.E.2d 340, cert. denied, 352 U.S. 910, 77 S.Ct. 118, 1 L.Ed.2d 119. Balltrip's proper remedy to the question of the reasonableness of the amount set as bail was by way of original proceedings in this Court. See Altobella v. District Court, 153 Colo. 143, 385 P.2d 663.

Moreover, under the majority rule and Colo.R.Crim.P. 46(b), the power of deciding the amount of bail is within the judicial discretion of the trial court; its decision will not be disturbed when the question is properly raised, except in a clear case of abuse of discretion. 4 Wharton, Criminal Law and Procedure §§ 1819, 1820 (12th ed. 1957).

The third argument presented by Balltrip is that the trial court erred when it allowed the District Attorney to endorse Drs. George Ogura and Homer McClintock as additional witnesses three days prior to trial. It is transparently clear from the record that the testimony of these two doctors added nothing to the testimony of a Dr. Miller, whose name had been originally endorsed on the information.

The applicable Colorado rule is that granting leave for the endorsement of witnesses is discretionary with the trial court, and, in the absence of a request for a continuance or a showing of surprise, does not constitute reversible error. Gorum v. People, 137 Colo. 1, 320 P.2d 340. Here Balltrip asked for and obtained a two day continuance because of the endorsement of the new witnesses. Balltrip thereafter appeared for trial on the appointed day and made no request for further continuances. He cannot, therefore, now raise an issue here with regard to the endorsement of the witnesses.

Mrs. Bath, who was endorsed on the information as Donna Margret Balltrip, was called as a witness and allowed to testify. The defendant objected on the ground that, under CRS '53, 153-1-7, a wife cannot be a witness against her husband without his consent. He re-asserts that argument here, but it is without merit. The murder by one spouse of the other's child is also a crime committed by one spouse against the other, so the husbandwife wife privilege under CRS '53, 153-1-7 does not apply. O'Loughlin v. People, 90 Colo. 368, 10 P.2d 543, 82 A.L.R. 622.

The defendant took the witness stand in his own behalf. He testified that David had fallen off the couch, and was then asked, 'What did he say?' The District Attorney objected on the ground that Balltrip's answer would be hearsay, and the trial court sustained the objection. The defendant's offer of proof showed that Balltrip would testify that David said, 'I need an aspirin. I hurt my head.' The defendant argues that the boy's statement was admissible as part of the res gestae, and that it was error to exclude it. The testimony, however, came in at another time during the trial, when Detective Boam testified that Balltrip told him that the child had fallen off the couch and struck his head on the stove. Thus, the error, if any, was not prejudicial to the defendant. Since the defendant cannot sustain the burden of showing prejudice, there is no ground for reversal. Miller v. People, 141 Colo. 576, 349 P.2d 685, cert. denied, 364 U.S. 851, 81 S.Ct. 97, 5 L.Ed.2d 75.

The defendant next argues that it was error to prevent his brother, Roy Balltrip, from testifying what the young boy, Von, had said to him concerning the events of December 5. On December 6, Von was taken to Roy Balltrip's home in Climax, Colorado. During his stay there, he was asked repeatedly about the happenings of December 5. The defendant offered to prove by Roy Balltrip that, in answer to Roy's questions, Von had said that Balltrip had not hit David on the head, and that David had hurt himself by falling off the couch onto the stove. It is now contended that the testimony was admissible on two grounds: (1) as part of the res gestae and (2) as a prior contradictory statement, because Von had testified that Jackie, not David, had fallen off the couch and struck his head on the stove.

The testimony, clearly hearsay, was properly excluded. To be part of the res gestae, the statement must be the event speaking for itself, through the instinctive words of the speaker, not the words of the speaker when narrating the event. Baney v. People, 130 Colo. 318, 275 P.2d 195. From the offer of proof, it is evident that Von's statements were in response to questions asked; they were neither voluntary nor spontaneous; they were made on the day after the event, and consequently do not meet the requirements of res gestae. The trial court ruled properly in excluding this testimony.

Nor was the offered testimony proper for the purpose of impeaching Von. Before a party can prove that a witness for the adverse party made statements prior to trial in conflict with...

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