Bauman v. People, 17344

• Decision Date: 04 October 1954
• Docket Number: No. 17344,17344
• Parties: Roy BAUMAN, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 591

274 P.2d 591

130 Colo. 248

Roy BAUMAN, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.

No. 17344.

Supreme Court of Colorado, En Banc.

Oct. 4, 1954.

John H. Sandor, Pueblo, 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.

ALTER, Justice.

Roy Bauman was charged with the crime of rape, and, upon arraignment, his sole plea was 'Not guilty by reason of insanity at the time of the alleged commission of the crime and since.' Upon trial on this plea by the jury it found him to be sane, and, after the overruling of his motion for a new trial, he was sentenced to serve a term in the penitentiary.

The motion for a new trial was based on only two alleged errors committed by the trial court, and these are: 1, A statement of the District Attorney was prejudicial to defendant; and 2, the admission in evidence of a doctor's testimony. We will discuss these in the order mentioned.

1. The record discloses that an objection was made and sustained to a statement made by the District Attorney in his argument to the jury, and that the trial court then instructed the jury to disregard the statement so made. It is presumed that the jury followed the court's instruction.

2. Mr. Kettelkamp was the District Attorney who prosecuted the case, and Mr. Stewart was one of defendant's counsel. During the direct examination of a psychiatrist called by the People, the following occurred:

'Q. Were you at the staff meeting, Doctor? A. Yes, I presented the case at staff for consideration of everyone.

'Q. How many doctors sat on the staff? A. Well, it is a little hard to say just who were there.

'Q. Approximately. A. I have--I don't know. I don't think I can answer.

'Q. Well, you can give us an approximation.

'Mr. Stewart: If the Court please, we object to that.

'The Court: If he doesn't know, it doesn't make any difference. * * * I think the objection is good. He finds it pretty hard to say who was there.

'Q. (By Mr. Kettelkamp) Are there more than five doctors? A. Yes.

'Q. Were you the doctor who presented this man's case history? A. I am.

'Q. What was the result of the staff meeting? A. It was the staff decision that he was legally sane.

* * *

* * *

'Mr. Stewart: I move to strike that last as hearsay evidence, not proper evidence about the staff.

'The Court: You say it is hearsay evidence when he was there?

'Mr. Stewart: Yes, it is what somebody else did.

'The Court: Objection overruled.

'Mr. Stewart: All right. Note an exception.' (Italics ours.)

The Attorney General frankly admits that it is impossible for him to distinguish this case from that of Carter v. People, 119 Colo. 342, 204 P.2d 147, wherein our Court held that the admission of testimony, practically identical with that admitted in the instant case, was reversible error. Upon authority of our decision in that case, we hold that the judgment herein must be reversed.

We note from the record that after the trial of defendant on the insanity plea he became dissatisfied with the services of the attorneys who were retained by his relatives, and they were permitted to withdraw. The attorney who then appeared for defendant requested, among other things, that defendant be permitted to add to his plea one of 'not guilty', which request was denied. The attorney representing defendant had nothing to do with the trial of the case in the district court, his first appearance being in this Court. In view of the peculiar circumstances evidenced by this record and the seriousness of the charge, we suggest that, on a retrial, defendant be permitted to enter the additional plea of 'not guilty' and that a trial be had thereon.

The admission of the evidence hereinbefore quoted under the second ground of the motion for new trial was prejudicial error; accordingly, the judgment is reversed and the case remanded to the district court for further proceedings in harmony with the views herein expressed.

HOLLAND and BRADFIELD, JJ., concur in the result.

HOLLAND, Justice (concurring in part and dissenting in part).

I concur in that part of the majority opinion reversing the case on the error of admission of hearsay testimony, and further concur in the suggestion contained therein that the defendant on retrial be permitted to make the additional plea of 'not guilty' and a trial thereon be had.

I dissent as to the other assigned error treated in the majority opinion concerning the prejudicial remarks of the District Attorney in the closing argument to the jury. I will herein treat this subject later.

The majority opinion correctly states that the motion for a new trial was based on only two alleged errors, consequently the case is thus disposed of, presumably on the theory that we treat only questions that have been presented in a motion for new trial. It is my opinion, not shared by some of my brethren, that the question of the constitutionality of the so-called insanity statutes is here presented, and for the guidance of the bench and bar, this question should now be determined.

While it is true the motion for new trial, which was overruled, presented the two questions considered by the majority opinion, the record discloses that prior to sentence and judgment, special appearance was made for the presentation of a motion particularly directed to the unconstitutionality of the statute under which the court was about to take evidence and sentence the defendant. It is to be noted that this question entered the record before sentence and was squarely before the trial court for its consideration, and the denial of this motion, in my opinion, was error; however, the trial court had the opportunity to consider the question and the error now claimed to the denial of this motion is presented to our Court.

That my views may more easily be understood, I consider it necessary to enlarge upon the statement of the case as made in the majority opinion.

Bauman, referred to as defendant, was informed against for statutory rape on March 23, 1953. Relatives procured counsel and it was decided between them and counsel that bail would not be posted, because, in their belief, defendant was insane and dangerous, and thereupon, when he was arraigned, a plea of not guilty by reason of insanity at the time of the commission of the act and since was entered. This was the sole plea. It is said this procedure took place without defendant's knowledge or understanding that such a plea was an admission of guilt of the crime charged, and that defendant was under the impression at all times that if upon the sanity hearing he was found to be sane, he would then be tried upon the crime charged.

Following the entry of the plea, the court committed him to the state hospital at Pueblo, and the authorities there returned a finding that he was sane. Counsel for defendant immediately petitioned for a further examination and he was committed to the Denver Psychopathic Hospital for observation and the examining staff there returned a finding that he was insane. Thereupon the case was set for trial upon a plea of insanity before a jury, which returned its verdict in which defendant was found to be sane at the time of the commission of the offense. Motion for new trial was filed and overruled, and the cause was continued to November 9, 1953, for the purpose of taking evidence prior to sentence. On that date, another attorney entered his appearance for the limited purpose of making the following oral motions, namely:

Leave to withdraw the original plea of 'not guilty by reason of insanity at the time of the alleged commission of the crime' and to plead 'not guilty' and 'not guilty by reason of insanity at the time of the alleged commission of the crime,' which was denied.

To set aside the verdict because no plea of guilty to the crime charged had been entered, and defendant had a right by trial by jury on the merits.

Further, that defendant should have been tried on the question of insanity with reference to the particular act charged, which was not done. (This motion was overruled.)

That defendant challenged the verdict and the right to pass sentence thereupon on the ground that the statute under which defendant was tried as to his sanity is unconstitutional and in violation of the due process clause of the state Constitution and the constitutional provision with regard to the right to trial by jury. (This was overruled.)

And finally, defendant moved to set aside the verdict because he was not represented by counsel of his own choosing. (This motion was denied.)

Thereupon the court heard the testimony of the complaining witness and after overruling defendant's motion to strike her testimony, sentenced defendant to serve a term of not less than five, nor more than eight years in the state penitentiary.

A review of the proceedings is sought by this writ of error upon the following contentions, which are, in substance:

1. Improper remarks by the District Attorney in his closing argument.

2. Hearsay statements by doctors reporting from the State Hospital.

3. That Section 507, chapter 48 as amended in S.L. '51, is unconstitutional because where, under the facts, the defendant is not apprised or does not know that his failure to plead 'not guilty' along with a plea of 'not guilty by reason of insanity' is an admission of crime and therefore a trial should have been granted on the issue of guilt after the verdict.

4. Section 509 is unconstitutional in that the plea of insanity is inherently a part of the plea of 'not guilty' and the law which requires a person to go to trial with a statutory presumption of sanity deprives the accused of his constitutional rights under the Federal and State Constitution.

5. Section 510 is unconstitutional for the same reasons.

6. That the trial was conducted on the issue of general insanity and the issue of partial insanity...