Harris v. People, 15411.

• Citation: 113 Colo. 511,160 P.2d 372
• Decision Date: 04 June 1945
• Docket Number: 15411.
• Parties: HARRIS v. PEOPLE.
• Court: Colorado Supreme Court

160 P.2d 372

113 Colo. 511

HARRIS v. PEOPLE.

No. 15411.

Supreme Court of Colorado, En Banc.

June 4, 1945

Error to District Court, El Paso County; John M. Meikle, Judge.

John Henry Harris was convicted of statutory rape, and he brings error.

Affirmed.

KNOUS JACKSON, and HILLIARD, JJ., dissenting. [Copyrighted Material Omitted]

George M. Gibson, of Colorado Springs, 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 convicted of statutory rape and received a sentence of from ten to twenty years in the penitentiary. To review that judgment he prosecutes this writ and assigns nine alleged errors which may thus be summarized: 1. Challenge to the array should have been sustained. 2. The jury was professional and prejudiced. 3. Examination of defendant was improperly limited. 4. Cross-examination of defendant's wife was improperly limited. 5. Defendant's instruction No. 1 should have been given. 6. The court's instruction No. 7 should have been refused. 7. The district attorney indulged in an improper and prejudicial argument. 8. The verdict was unsupported by the evidence. 9. The juror Nelson was disqualified by statute.

The offense charged was committed October 12, 1942, the information was filed November 10 following, and upon a showing of defendant's indigence counsel here appearing was appointed to represent him. November 16, 1942, defendant was arraigned, pleaded not guilty and not guilty by reason of insanity, and was committed to the state hospital at Pueblo for thirty day's observation, two physicians being designated to examine him and report. April 12, 1943, the regular panel being exhausted, a special venire for twenty jurors was issued and served as ordered. April 19 following the venire was filed and from the twenty so summoned the jury was thereafter selected. The case was thereupon set for trial April 28. On that day the information was amended as per notice previously given. Defendant withdrew his plea of insanity and moved to quash the panel. That motion was overruled and the cause proceeded to trial. The following day the trial was completed, the jury instructed, the cause argued, and the jurors retired and returned with a verdict of guilty. May 24 following, defendant's motion for a new trial was filed with supporting affidavits. June 1, the motion was argued and taken under advisement, and one week later it was denied and defendant sentenced. At the same time the trial judge made and entered findings of fact relative to various jurors.

Defendant was a married man living with his wife and four small children, the eldest being a daughter eleven years old. It was charged, and the state's evidence showed, that the offense was committed with this little girl--not once but repeatedly--and that discovery occurred because he had infected her with gonorrhea from which disease he admitted he was suffering.

1. The panel was challenged because its members had been summoned on open venire. The statutory procedure governing the selection of jurors is to be found in Chapter 95, '35 C.S.A. However, Section 45 thereof reads:

'Nothing in this subdivision contained shall be held to deprive any court of the power to cause a jury to be summoned by open venire as is provided by law.'

Sections 14 and 17, id., contain further provisions relating thereto. Following these numerous cases in this jurisdiction are cited which need not here be repeated. There from it appears that the procedure herein followed was in all respects regular and has been repeatedly approved by this court. Nothing further need be added. The assignment is unsupported.

2. It is contended that some of these jurors were 'professional' and that the presumption should be indulged that they were prejudiced. Such information as we have no this subject is obtained from the affidavits filed in support of the motion for a new trial, from those filed in opposition thereto, and from the findings of the court above referred to. Taken together they wholly fail to support the assignment. Much of the information contained in the supporting affidavits is immaterial, i. e., that some of the jurors had served once or more within a given period prior to the year proscribed by the statute; that some of the jurors had served within that period and were excused for cause; that one juror summoned was a deputy sheriff and was excused peremptorily; that one juror who served was a gunsmith frequently employed by the police officers; etc. There is no suggestion that counsel for defendant made an inquiry, on voir dire, of any of the jurors as to service in other cases, save by the general question as to whether they had served within one year. Had he been seriously concerned further inquiry would have disclosed the facts and objectionable jurors could have been disposed of by unused peremptory challenges. Add to the foregoing that it does not appear that defendant was prejudiced, and that all these matters rested in the sound discretion of the trial judge, and we are forced to the conclusion that this assignment is without merit.

3. Complaint is made because counsel for defendant was not permitted to interrogate him as to what intercourse, if any, he had indulged in during a given period with anyone other than his wife. This for the alleged purpose of disclosing the source of his infection. The court was not concerned, nor are we, with the source of defendant's infection. The only proper inquiry was as to the source of infection of the prosecuting witness.

4. Defendant's wife was called as a witness for the state and on cross-examination his counsel sought to interrogate her as to her own personal misconduct with other men. The subject was entirely unrelated to any issue in the case and wholly unconnected with the credibility of the witness. Objections thereto were properly sustained. Moreover, it appears that the information sought, so far as it could be said to pertain to any proper inquiry, was given. Otherwise the questions were not specific and the court in sustaining the objections gave leave to counsel to recall the witness for further cross-examination if he so desired. No possible prejudice appears.

5. Defendant requested the giving of his instruction No. 1 which was refused. It related to alleged contradictory statements made by a witness. In lieu thereof the court gave instruction No. 7 on the same subject and in substance identical, hence no error appears.

6. Instruction No. 7 contains nothing not covered by defendant's request above mentioned and fairly states the law. It was properly given.

7. Our knowledge of this assignment is gathered solely from the affidavits since the arguments of counsel do not appear in the transcript. One Bruce, chief of police in Colorado Springs, had testified for the people and some of his testimony had been contradicted by defendant whose counsel argued that because of the official position of Bruce, and the large number of cases he handled, his memory should not be trusted, and in answer thereto the district attorney stated, 'in effect that said witness was a true, fair man, based upon the experience of the district attorney with said witness.' It will be observed that 'in effect' destroys any value which this affidavit might otherwise have on the subject. Counsel might at the time have had this portion of the argument taken by the reporter. He did not. As it stands in the record there are four answers to the objection: First, the argument of counsel for defendant was, strictly speaking, improper; second, the statement of the district attorney was a proper answer thereto; third, just what was said and its probable effect upon the jury was for the discretion of the trial court; fourth, the matter seems trivial and without prejudice.

8. The testimony of the prosecuting witness was positive and unequivocal. In material points it is corroborated by other witnesses, particularly by defendant's wife. In some, and especially as to the actual commission of the offense, it is positively contradicted by defendant. The question was solely one for the jurors. They have resolved it and that resolution met the approval of the trial judge as is evidenced by the overruling of a motion for a new trial. The question therefore is not within our province. That there are minor discrepancies in the evidence of some of these witnesses can not be questioned, but they are such as appear in almost every closely contested case, and particularly as to dates and hours and movements of which naturally no records were kept, and doubly so where, as here, the adult witnesses were, to say the least, not above the average of intelligence, and important facts were testified to by others of immature years. The jurors and the judge saw and heard them. They well knew where credence should be given and where withheld. We have no such advantage and must say that the evidence amply supports the verdict.

9. We come now to the most important question raised on the motion for a new trial and under the assignments. To some of the Justices, including the writer, it seems simple and the assignment wholly without merit. To others, perhaps better qualified to speak, it appears well supported and absolutely vital.

'The fact that any person summoned in any way to serve as a juror in any district or county court shall have served as a juror in either of said courts, at any prior term, within one year next preceding, shall be a sufficient excuse for such person from service, and may also be ground for challenge for cause to such individual summoned.'

Sec 53, chap. 95, vol....