Hood v. People
| Decision Date | 29 November 1954 |
| Docket Number | No. 17470,17470 |
| Parties | William Milton HOOD, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendants in Error. |
| Court | Colorado Supreme Court |
Ivor O. Wingren, Bart W. O'Hara, Charles A. Murdock, Denver, 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.
Plaintiff in error, hereinafter referred to as defendant, was charged in an information with (1) assaulting a female child under the age of 16 years and taking indecent liberties with her person; (2) that he allured and persuaded said child into a room, office or other place for the purpose of taking such indecent liberties; (3) that defendant did take indecent liberties with the person of said female child; and (4) that he attempted to take indecent liberties with the person of said female child, all on the 5th day of November, 1952.
To these charges defendant entered pleas of not guilty. Upon trial of the action, the court withdrew the second count from consideration by the jury. The other counts were submitted to the jury and a verdict of guilty on count three was returned. Motion for new trial was overruled and sentence imposed. Defendant brings the cause here by writ of error, seeking reversal. Counsel for defendant urge (a) that the trial court erred in holding that the nine year old prosecutrix was a qualified witness; (b) that the trial court erred in admitting testimony concerning alleged similar offenses; (c) that the trial court erred in refusing defendant's tendered instruction No. 2; (d) that the trial court erred in not submitting a not guilty form of verdict on each count submitted to the jury.
Defendant is a man forty-six years of age; the complaining witness at the time of the trial was nine years of age. Before she was permitted to testify the trial judge interrogated her at considerable length and determined from her answers to his questions that the girl was a qualified witness and knew the significance of an oath. It is agreed by counsel that the competency of a witness in any case turns upon the facts in the particular inquiry. The pertinent portion of our statute disqualifying certain witnesses is as follows:
'Second--Children under ten years of age who appear incapable of receiving just impressions of the facts respecting which they are examined or of relating them truly.' Section 8, chapter 177, '35 C.S.A.
In the instant case the trial judge ascertained from the complaining witness that she attended school, as well as church; that she was up with her class, and had an adequate comprehension of the proceeding then pending before the court, as well as the solemnity of an oath, and her duty to detail truthfully the facts about which she was to testify. We have read carefully the record so made and must conclude that the trial judge fully and adequately examined into the qualifications of the nine year old witness and that she did not come within the exception mentioned in paragraph 'second' of section 8, supra.
Rulings of this kind will not be disturbed unless on review it appears from the voir dire examination of the child, or by its testimony, that the trial court abused its discretion. In Pillod v. People, 119 Colo. 116, 200 P.2d 919, we affirmed a conviction for taking indecent liberties. There, the complaining witness was a girl six years of age. In Wesner v. People, 126 Colo. 400, 250 P.2d 124, 126, the child was seven years of age. We there said: 'This court has many times said that the competency of the child as a witness under this statute is a question that is addressed to the sound discretion of the trial court, whose duty it is to examine such child, without interference of counsel, to determine competency and unless there is a great abuse of this discretion, the trial court's ruling thereon should not be disturbed.'
In the instant case the jury heard not only the testimony of the nine year old girl, but that of her eleven year old brother, who testified that he was an eye witness to the offense.
The trial judge instructed the jury in part as follows: 'You are further instructed that you are to weigh the evidence of the witness (prosecutrix) with the utmost care and caution, together with all the evidence in the case.'
We must conclude that the complaining witness was competent under this record.
The trial court admitted evidence of a similar offense allegedly indulged in by defendant with the complaining witness prior to the date alleged in the information. At the time this testimony was admitted the jury was instructed concerning the specific purpose for which it was offered, and again by a written instruction the jury was told of the limited purpose for which the evidence was admitted, and further that the defendant could not be tried for or convicted of any offense not charged in the information. We conclude that the trial court did...
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Stull v. People
...Schneider v. People, supra; Wolff v. People, 123 Colo. 487, 230 P.2d 581; Moore v. People, 125 Colo. 306, 243 P.2d 425; Hood v. People, 130 Colo. 531, 227 P.2d 223. These eleven cases, just cited, represent a substantial body of law on the matter of the procedural requisites for the admissi......
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Lancaster v. People
...E. g., Marn v. People, 175 Colo. 242, 486 P.2d 424 (1971); Jordan v. People, 161 Colo. 54, 419 P.2d 656 (1966); Hood v. People, 130 Colo. 531, 277 P.2d 223 (1954); Wesner v. People, 126 Colo. 400, 250 P.2d 124 The judgment is affirmed. 1 Commonly included within the res gestae category are ......
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Jordan v. People
...such circumstances, we cannot find that the trial court abused its discretion in finding that the witness was competent. Hood v. People, 130 Colo. 531, 277 P.2d 223; Wesner v. People, 126 Colo. 400, 250 P.2d 124; Pillod v. People, 119 Colo. 116, 200 P.2d 919; Brasher v. People, 81 Colo. 113......
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