Bishop v. People, 22196

• Citation: 165 Colo. 423,439 P.2d 342
• Decision Date: 15 April 1968
• Docket Number: No. 22196,22196
• Parties: James Wilson BISHOP, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
• Court: Supreme Court of Colorado

Page 342

439 P.2d 342

165 Colo. 423

James Wilson BISHOP, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.

No. 22196.

Supreme Court of Colorado, En Banc.

April 15, 1968.

Niel L. Good, Lakewood, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., James W. Creamer, Jr., Robert Hoecker, Asst. Attys., Gen., Denver, for defendant in error.

DAY, Justice.

James Wilson Bishop, whom we will designate as defendant, was convicted by a jury verdict of second degree murder. This writ of error is directed to a judgment and sentence of from 16 to 30 years in the state penitentiary.

The victim of the murder was Mark A. Yourtz, the three year old son of defendant's wife, Barbara June Bishop, by a former marriage. The defendant married Mark's mother on December 2, 1964. The death of the boy took place on January 18, 1965.

At the outset, a brief summary of the evidence is necessary as a background for putting defendant's points of error in proper focus. A more detailed recital will be given later on to answer the specific points raised.

The people's case was entirely circumstantial. It established that Mark was picked up by the defendant at the home of Mrs. Bishop's mother and that from that time until a fire rescue unit arrived in response to a call by defendant, Mark was in the exclusive custody of the defendant. When the boy left his grandmother's home he was in good health, without any marks or injuries. When the fire rescue unit arrived he was suffering from severe trauma; he was unconscious; and he failed to respond to resuscitative measures taken by the Fire Department. The autopsy report, testified to in greater detail by the pathologist, revealed that Mark died of a lacerated liver and transected pancreas; he had a fractured skull with swelling of the brain; and he also had severe bruises in various places on his body.

The defendant testified in his own defense. He stated that after leaving the grandmother's home at 7:30 a.m. he drove directly back to his apartment where he and the boy had breakfast and they played together for a while. Defendant then took a short nap, and upon awakening sometime around 11 a.m. he found that Mark had vomited and had had a bowel movement in his pants. He further stated that on two previous occasions that morning the boy had vomited and that he had reprimanded Mark lightly by slapping him twice on the buttocks. He insisted that he had not administered any further punishment to the boy. The defendant explained that he had placed Mark on the toilet seat in the bathroom in order to undress him and clean him. He stated that while he went to get a pair of clean shorts and a towel he left Mark standing on the toilet seat; but upon returning to the bathroom he found Mark on the floor with his head resting against the back of the tub. His further testimony was that the boy was unconscious; that he was having difficulty breathing; and that he tried various means of artificial respiration, including pressing on the abdomen of the child while he was lying face up, but that he was unable to revive the child. He then called the Fire Department, the members of whom used artificial respiration and a resuscitator, to no avail.

I.

The first of defendant's assignments of error is that the trial court improperly allowed the prosecution to attempt to impeach the testimony of the defendant's wife by the use of hearsay evidence. The allegedly prejudicial hearsay evidence came into the record under the following circumstances:

Mrs. Bishop was called as a witness for the defense. On direct examination she testified that the defendant loved Mark and that their life together had been a happy one. On cross-examination Mrs. Bishop was asked concerning specific prior inconsistent statements made to specific individuals, which she denied. To impeach Mrs. Bishop, the specific persons to whom the alleged inconsistent statements were claimed to have been made, were called to testify in rebuttal. They related statements made to them by Mrs. Bishop which contradicted her in-court testimony of the loving relationship that existed between Mark and the defendant. The defendant objected on the ground that these statements were made outside of the presence of the defendant, without his knowledge, and were, therefore, in the hearsay category.

It is true that the conversations between the defendant's wife and the impeaching witnesses were hearsay. However, prior inconsistent statements, if relevant, material and not collateral (i.e. where the cross-examining party would be entitled to prove the matters inquired into as part of his case), are admissible not to prove the facts asserted, but to discredit the witness and to show that because of the contradictory statements the witness is not worthy of belief. Mitsunaga v. People, 54 Colo. 102, 129 P. 241; Askew v. People, 23 Colo. 446, 48 P. 524; 3 J. Wigmore, Evidence § 1018 (3d ed.); C. McCormick, Evidence § 39.

The impeaching testimony introduced was material, relevant and not collateral. Malice required for second degree murder in the instant case is implied malice such as can be determined by the jury from the circumstantial evidence. Defendant's attitude and conduct toward Mark was both material and relevant to such jury determination. It was proper, therefore, for the prosecution to introduce impeaching testimony relevant to Mrs. Bishop's declaration on direct examination that the defendant was affectionate toward and solicitous of Mark's welfare. It is clear from the record that the prosecutor established--both in laying the foundation in his cross-examination of Mrs. Bishop and in calling the witnesses to whom he had directed Mrs. Bishop's attention--that statements of the witnesses were introduced solely for the purposes of impeachment. If the defendant desired a cautionary instruction as to the purpose of the admission of such testimony, he should have requested it. See Lanford v. People, 159 Colo. 36, 409 P.2d 829; Stull v. People, 140 Colo. 278, 344 P.2d 455.

II.

Defendant's second argument is directed to Instruction No. 5, claimed to be erroneous. The instruction given is as follows:

'Intent is manifested by the circumstances connected with the perpetration of an offense and the sound mind and discretion of the person accused. A person shall be considered of sound mind who has arrived at the age of fourteen years, or before that age if such person knows the distinction between good and evil.

'You are further instructed that a man is presumed to intend the natural and probable consequences of his voluntary acts.'

Specific objection is made that the final paragraph should have been modified by a clear statement from the court that it was the function of the jury to determine defendant's intent, and further, that the court should have made it clear that by the giving of such instruction the court itself was not presuming the intent of the defendant.

A presumption of intent will not support the conviction of a crime where specific intent to commit the crime is required, such as first degree murder or assault with intent to commit murder. However, where the crime charged involves general intent such as second degree murder, and such an Instruction as No. 5 is deemed proper, we have, in such case, approved its use. See Tucker v. People, 136 Colo. 581, 319 P.2d 983. As we have repeatedly stated, all of the instructions are to be read together as a whole, and the jury was properly directed by other instructions that the...