Baney v. People

• Decision Date: 25 October 1954
• Citation: 130 Colo. 318,275 P.2d 195
• Parties: John Herbert BANEY, Plaintiff in Error, v. PEOPLE of the State of Colorado, Defendant in Error. No 17442. . En Banc
• Court: Colorado Supreme Court

Page 195

275 P.2d 195

130 Colo. 318

John Herbert BANEY, Plaintiff in Error, v. PEOPLE of the State of Colorado, Defendant in Error.

No 17442.

Supreme Court of Colorado En Banc.

Oct. 25, 1954.

Robert B. Lee, M. O. Shivers, Jr., Englewood, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., Frank A. Wachob, Deputy Atty. Gen., Norman H. Comstock, Asst. Atty. Gen., for defendant in error.

KNAUSS, Justice.

Plaintiff in error, herein referred to as defendant, was charged in an information filed October 15, 1953 by the district attorney in and for Arapahoe County, Colorado, with murder and assault to rape. On December 17, 1953 an additional count was added to the information charging defendant with forcible rape. The victim named was one Dorothy H. Gall. To each of these counts defendant entered pleas of not guilty. Trial was commenced on January 19, 1954 and at the close of the People's case, defendant moved for a directed verdict of not guilty as to all counts in the information. This motion was denied. After defense and rebuttal witnesses testified, defendant's counsel again moved for a directed verdict of not guilty as to each count. The motion so made was sustained as to the count charging murder, and denied as to the other two counts. The remaining issues were submitted for determination by the jury which, by its verdicts, found the defendant not guilty of assault to rape and guilty of forcible rape. Defendant was sentenced to the state penitentiary and he brings the cause here by writ of error seeking reversal of the judgment of conviction.

The principal error urged for reversal is the admission in evidence, over the strenuous objection of defendant's counsel, of the recitals of Dorothy H. Gall made to deputy sheriff Wakefield and Dr. Patton some ten or fourteen hours after she returned to her home following the alleged attack. It is contended that these declarations were hearsay and hence not admissible. It is frankly, and we say commendably, admitted by the Attorney General '* * * no other witnesses other than Deputy Sheriff Wakefield and Dr. Patton touched on matters relating venue. Certainly, if the statements of deceased were admissible, the jury was justified in finding the crime was perpetrated in Arapahoe County. If this Court should decide the statements of deceased were not admissible, we find no evidence to support proof of venue.' The Attorney General in his brief says: 'It is conceded that proof of venue is essential and that the burden of establishing it is upon the prosecution.' Dustin v. People, 116 Colo. 433, 181 P.2d 457.

According to the evidence, defendant was in Denver on his way from his home in Salem, Oregon to New Orleans, La. He arrived here on the evening of September 18, 1953, coming in his automobile, described in the evidence as a 1938 Cadillac, painted black. According to the testimony of two witnesses employed at the Mir-O-Bar Tavern, defendant was seen at that place in the company of Dorothy H. Gall at about 1 A.M. on the morning of September 20, 1953. A taxicab driver testified that he picked up defendant and a woman at this Tavern about 1:10 A.M. on the same day and drove them to a parking lot next to a hotel on Cleveland Place in Denver. The taxi driver could not identify the woman. The two passengers in the taxicab left the car at the parking lot and entered a dark limousine type of car, which the taxi driver identified as looking like a 1937 or 1938 Packard automobile.

At about 1:55 P.M. September 20, 1953 in response to a call (not from Dorothy H. Gall) deputy sheriff Wakefield interviewed Dorothy H. Gall at her home in Denver, and she related to him a story of an attack and rape. Wakefield then took her around the countryside in Arapahoe County in his automobile, traveling some thirty or thirty-five miles in an effort to locate the scene of the attack. Wakefield asked Miss Gall at a certain point in their journey: 'Does this look familiar?' She replied: 'Yes, officer, it looks familiar.' At another place in his testimony Walkefield said Miss Gall told him in answer to his inquiry: 'This looks like the place.' Later, he took her to the office of Dr. Lee F. Patton, an Englewood, Colorado physician. At five o'clock in the afternoon of September 20, 1953 Dr. Patton interviewed Dorothy H. Gall and made detailed notes of the story of the attack, related by her. Dr. Patton examined Miss Gall and discovered a laceration of her vagina (of which she had not complained) and recommended that she go to the Colorado General Hospital to have this laceration cared for. She refused, and Dr. Patton then recommended that she go to the Porter Hospital. She reluctantly consented to go there. Dr. Patton took her to that hospital and instructed an interne there to administer a pudental block with novocaine and repair the laceration. Complying with these directions, novocaine was injected into the perineum of the patient. Shortly after the injections began, convulsions of the grand mal type followed and the patient ceased to breathe. Emergency calls were placed for additional physicians, all of whom took part in an attempt to save the life of the patient. She died about 7:45 P.M. on September 20, 1953. The testimony of all the expert witnesses was that none of the wounds or injuries appearing on the person of Dorothy H. Gall were mortal wounds or injuries, and that none, or all of them combined would cause death. An autopsy was performed on the body of Dorothy H. Gall and a sample of her blood taken. That she died of an anaphylactic, or allergic, reaction to the novocaine was not disputed.

She told the deputy sheriff that she lost a shoe and her billfold during the attack upon her. Neither of these articles were found, although the deputy sheriff made search for them at the place Miss Gall said 'looks familiar.'

The recital of Miss Gall concerning her experiences on the early morning of September 20, 1953, as detailed by Wakefield and Dr. Patton, were to the effect that she went into a bar on 15th Street in Denver; there she met a man; had some drinks, after which they went to the Mir-O-Bar where they had more liquor; they left in a taxi and went to a parking lot where they got into this man's car and drove to her home in south Denver. While parked in front of her residence she said the man suddenly grabbed and choked her and hit her on her neck and shoulder. She became unconscious and awoke in the car quite a distance in the county; that this man disrobed her after she got out of the car; laid her on the gorund and attacked her. He then returned her to her home, where he again parked the car. They talked for a while; she got out of the car and as it left she was able to see the numbers on the license plate of the car, but not the name of the state which issued the plate. She said she went into the house and wrote the first three numbers of the plate on a piece of paper. This paper she delivered to Wakefield and it was introduced in connection with his testimony. She said she took a peroxide douche and gargle and went to bed. This was about 3:30 A.M. She arose at about 7 o'clock A.M. the same day, later phoned to a Denvery lawyer, who in turn called a Denver police officer. Neither of these persons testified. Deputy Sheriff Wakefield called on her at her home at about 1:55 P.M. on September 20, 1953 and investigaged the case. He said that Miss Gall described her assailant; said his 'hair had slipped' and that she was in a 'joking mood' when she made the remark. Wakefield saw black and blue marks on her neck and shoulder. Dr. Patton testified that Miss Gall answered his questions 'very freely'; said 'she seemed to be very clear, but her answers had to be prompted'; that she was nervous and 'rather excited.' The narration given by Dr. Patton was more detailed and embraced some matters not included in the statement repeated by Wakefield.

It is evident from the record that the narration of the events given by Wakefield and Dr. Patton was concerning alleged facts given these witnesses by Miss Gall in many instances as a result of questions propounded by the witnesses.

In Graves v. People, 18 Colo. 170, 32 P. 63, 65, we quoted from Wharton's Criminal Evidence (9th Ed.) section 262, as follows:

"Res gestae are events speaking for themselves, through the instinctive words and acts of participants, not the words and acts of participants when narrating events. What is done or said by participants under the immediate spur of a transaction becomes thus part of the transaction, because it is then the transaction that thus speaks. In such cases it is not necessary to examine as witnesses the persons who, as participators in the transaction, thus instinctively spoke or acted."

With respect to statements of victims of various sexual offenses made about a day after the commission thereof the courts, without setting...