Bashford v. People

• Decision Date: 29 March 1943
• Docket Number: 15130.
• Citation: 135 P.2d 516,110 Colo. 479
• Parties: BASHFORD v. PEOPLE.
• Court: Colorado Supreme Court

135 P.2d 516

110 Colo. 479

BASHFORD v. PEOPLE.

No. 15130.

Supreme Court of Colorado, En Banc.

March 29, 1943

Error to District Court, City and County of Denver; Henry A. Hicks Judge.

Virginia Bashford was convicted of conspiracy to commit abortion, and she brings error.

Affirmed.

HILLIARD J., dissenting.

Charles T. Mahoney and Charles A. Murdock, both of Denver, for plaintiff in error.

Gail L Ireland, Atty. Gen., H. Lawrence Hinkley, Deputy Atty. Gen and James S. Henderson, Asst. Atty. Gen., for defendant in error.

BURKE Justice.

Plaintiff in error, hereinafter referred to as defendant, was charged jointly with two others with conspiracy to commit abortion. By agreement a severance was ordered and she was separately tried. On a verdict of guilty she was sentenced for a term of four to five years in the penitentiary. To review that judgment she prosecutes this writ. Her fifty-three assignments are grouped and argued under seven headings. These we further condense, rearrange, and so consider: (1) Misconduct of the trial judge; (2) erroneous rulings on the evidence; (3) erroneous rulings on instructions; (4) insufficiency of the evidence.

(1) It is contended that certain remarks, some twenty in all, addressed by the trial judge either to counsel, or defendant on the stand, were prejudicial. Those addressed to counsel were generally provoked by persistent effort to present improper, or exclude proper, evidence; principally the latter. The following are fair examples.

'The purpose of a trial is to develop the facts, not prevent it.'

'The court is determined that this jury shall hear the relevant facts in this case.'

'We want to get at the facts and that is what the jury is entitled to have.'

Those addressed to defendant on the stand were provoked by defendant's improper conduct and her apparent determination to disregard the rulings and inject improper and self-serving matter. The following are fair examples:

'She (defendant) was allowed considerable latitude in telling her story. She may be cross-examined on it, and she must answer and not tell all about something else.'

'She was given the benefit of denial, and that is all in there, and she wants to make a speech about it.'

'You are not answering the question. Nobody asked you that question.'

'It will be stricken out, because it is a deliberate attempt by the witness to evade the question. She has been doing that right along, taking up the time of the court, and the court is getting pretty well fed up on it.'

We must not be understood as approving all this. Some of it, at least, might have been more judicial, but we can not say that it probably influenced the jury and certainly it indicated no opinion as to defendant's guilt. It does not constitute reversible error. Rogers v. People, 104 Colo. 594, 94 P.2d 453; Phenneger v. People, 85 Colo. 442, 276 P. 983; Wilder v. People, 86 Colo. 35, 278 P. 594, 65 A.L.R. 1260.

In view of the contention that the trial judge showed prejudice it seems appropriate to note that upon the denial of a motion for a new trial the prosecuting attorney stated that defendant had 'no previous record' and that if she desired to apply for probation 'We have no objection.' Advised by her counsel that she did not she was then called Before the court and the judge observed that she had never been in trouble Before or had any criminal charge against her and being a first offender was entitled to probation. The prosecutor acquiesced and after sentence the judge stated in substance that if she prosecuted error and failed of reversal, leave to apply for probation would still stand.

(2) Certain evidence was objected to as hearsay. So far as it was of any moment it was later produced on direct. If Smith says 'Jones told me he was there,' that may be pure hearsay and its admission, over objection, error. But if Jones then takes the stand and says, 'I told Smith I was there and I was,' no possible prejudice can result.

Defendant was the office assistant and secretary of Dr. C. While the doctor was absent and she was in charge one Miss G, presumably pregnant, came for relief. Defendant, acting for the doctor agreed upon a fee of $100. $50 was paid in cash and a note for $50.00 executed and delivered by one S, a friend of G. Mc, an attorney, was called to show attempts of the doctor to collect this note. He testified, 'I represented Dr. C in connection with an account of his involving S.' S testified he received a bill from Dr. C. Suher, an investigator for the pharmacy department of Colorado, testified he obtained from Mc Exhibit D, a copy of a letter from the latter to S. It states that the doctor had left the account of $50.00 against S with Mc for collection, and inquires concerning the desire of S. Exhibit D, admitted over objection, shows the activity of Dr. C in collecting the note arranged for and taken by defendant as a part of the consideration for the operation. Its identification was not perfect, but since it was apparently genuine, and if so tended to establish a link in the case, and since defendant's counsel did not see fit to cross-examine concerning it, we fail to detect error.

It seems appropriate to interject here that counsel who represented defendant on the trial was not one of those here appearing for her.

Defendant was questioned in the office of the district attorney. Interrogatories and answers were taken by a stenographer transcribed, and signed by defendant. This document, Exhibit B, was admitted in evidence. It was objected to on the ground that it was not voluntary and on that question a hearing was had in chambers out of the presence of the jury, and defendant and other witnesses examined. Whereupon the objection was overruled and Exhibit B admitted. It is said that at the time these statements were made defendant was ill, was denied counsel, held incommunicado, and threatened. She was taken into custody May 26 and released May 28. The statement is dated May 27. She testified in chambers that several weeks after her discharge she wrote out in detail her recollection of all that occurred during her incarceration and examination. This writing, Exhibit 1, she proposed to read from and otherwise use as testimony or memoranda to show the involuntary character of Exhibit B. An objection thereto was sustained and that ruling was clearly correct. Exhibit 1 was self-serving, palpably open to the objection and deliberate manufacture, and the time of its composition was too remote. Even assuming its truth and good faith no necessity for its use appears. So far as the record discloses defendant could give the facts as well without it. With one exception it contains the sole evidence of the involuntary character of Exhibit B. That exception is the testimony of a physician, hypothetically based, to her probable incapacity. On the same basis another physician, equally qualified and informed, expressed a contrary opinion. It thus appears the admission of Exhibit B rested in the sound...