Kidder v. People
| Decision Date | 15 April 1946 |
| Docket Number | 15634. |
| Citation | 115 Colo. 72,169 P.2d 181 |
| Parties | KIDDER v. PEOPLE. |
| Court | Colorado Supreme Court |
Error to District Court, Garfield County; John R. Clark, Judge.
Ross J Kidder was convicted of taking indecent and improper liberties with the person of a child under 16 years of age and he brings error.
Reversed.
Conviction of unlawfully and feloniously taking indecent and improper liberties with the person of a child under 16 years of age was reversed on ground that defendant was not properly represented at trial and did not have a fair trial. '35 C.S.A. c. 48, § 65.
Benjamin C. Hilliard, Jr., and John R. Barry, both of Denver, for plaintiff in error.
H Lawrence Hinkley, Atty. Gen., Duke W. Dunbar, Deputy Atty Gen., and James S. Henderson, Asst. Atty. Gen., for defendant in error.
Ross J. Kidder, to whom we hereinafter refer as defendant, was found guilty of a criminal offense by a jury, and he is here seeking a reversal of the judgment of conviction which was duly entered.
The charges set out in the three counts of the information read as follows: First count. '* * * the said Ross J. Kidder, being then and there a person over the age of fourteen years, did then and there unlawfully and feloniously take indecent and improper liberties with the person of a child under sixteen years of age, * * *'
Second count. '* * * the said Ross J. Kidder, being then and there a person over the age of fourteen years, did then and there unlawfully and feloniously entice, allure and persuade a child under the age of sixteen years, * * * into a certain room for the purpose of taking immodest, immoral and indecent liberties with such child.'
Third count. '* * * the said Ross J. Kidder, being then and there a person over the age of fourteen years, did then and there unlawfully and feloniously attempt to take indecent and improper liberties with the person of a child under sixteen years of age, * * *'
The information was filed in the district court at Glenwood Springs August 25, 1944. On or about September 1, 1944, defendant consulted and retained A. F. Zarlengo, an attorney residing in Denver, to represent him in the trial of the cause. According to Zarlengo's affidavit attached to defendant's amended and supplemental motion for a new trial, Zarlengo's wife was in a critical condition in a Denver hospital on December 6, 1944, and because of this fact he was unable to be present in Glenwood Springs for the trial, which was set for that date. It appears from the record that the critical illness of Mrs. Zarlengo was not called to the attention of the trial court, and no motion for a continunance, based upon that fact, or at all, was presented.
Zarlengo, according to his affidavit, telephoned an attorney at Glenwood Springs, requesting him to present the fact of his wife's critical illness to the trial court and arrange for a continuance. In his affidavit Zarlengo states that a Denver attorney then present in Glenwood Springs, engaged in the trial of a civil case, held a telephonic conversation with him, and was requested by Zarlengo to assist the Glenwood Springs attorney in securing a continuance for the reason noted above.
In the affidavits of defendant and his wife, attached to said amended and supplemental motion for a new trial, is a statement that the Denver attorney contacted them on the night of December 4, 1944, at about midnight, and arranged to meet them on the morning of December 5, 1944, and did meet them. He conversed with them there for less than an hour regarding the trial and evidence to be presented in connection therewith. It appears from these affidavits that this Denver attorney stated that Zarlengo had requested him to try the case, to which defendant protested, stating that he was not acquainted with the attorney and that there was no time for proper preparation for the trial. At the breakfast table this Denver attorney stated that he was entirely able and willing to proceed with the case; that Zarlengo wished him to do so; and that he had so arranged matters with the district attorney that there would be nothing to the trial. Notwithstanding the fact that defendant and his wife implored the Denver attorney to move for a continuance, the latter persisted in his statements that by reason of his arrangements with the district attorney defendant had nothing to fear and that no time was required in preparation for the trial nor was it necessary for him to interview any witnesses because of this understanding. The Denver attorney demanded, and defendant paid him for his services prior to the trial the sum of two hundred and fifty dollars, and on December 6, 1944, the attorney announced, 'ready for trial,' and proceeded with the trial of the cause. This attorney refused at first to prepare a motion for a new trial unless defendant paid him an additional fee, but eventually the motion was prepared by Zarlengo and subscribed by the Denver attorney. Defendant exhausted every means within his power to procure the assistance of the Denver attorney in presenting a proper motion for a continuance, with the results indicated. The Denver attorney did not argue the motion for a new trial, but the same was presented, as a matter of courtesy, by a Glenwood Springs attorney who did not participate in the trial of the cause.
The record discloses that the trial court expressed dissatisfaction with the manner in which defendant's case was presented, as is evidenced by the following excerpt from the record of his remarks:
The trial was concluded on December 6, 1944, on which day the jury returned a verdict of guilty on the first count, and not guilty on the second and third counts of the information. No order appears in the record fixing the time within which defendant should file a motion for a new trial. Motion for a new trial was filed on December 29, 1944, and a motion to strike the same because not filed within the time allowed by law was filed on January 2, 1945, and denied. February 13, 1945, the motion for a new trial was heard and denied. Judgment was entered on the verdict, and defendant sentenced to the penitentiary for a term of not less than three nor more than five years.
On the 11th day of April, 1945, defendant, having secured other counsel, moved for leave to file an amended and supplemental motion for a new trial, and a motion in arrest of judgment, which was denied. On the same day defendant moved for leave to tender these motions for filing and was granted time until May 10, 1945, within which to make said tender. On April 30, 1945, defendant tendered the amended and supplemental motion for a new trial and the motion for arrest of judgment, which latter motion was subsequently withdrawn. Because no proper record was made, the trial court committed no error in denying defendant's motion for a new trial.
The statute under which defendant was charged is section 65, chapter 48, '35 C.S.A., and reads:
'Any person over the age of fourteen years who shall assault any child under sixteen years of age and shall take in decent and improper liberties with the person of such child, or who shall entice, allure or persuade any such child into any room, office or to any other place for the purpose of taking such immodest, immoral and indecent liberties with such child, or who shall take or attempt to take such liberties with the person of such child at any place, shall be...
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Jordan v. People
...of such child at any place'; (4) attempt to take 'such liberties with the person of such child at any place. '' Kidder v. People, 115 Colo. 72, 77, 169 P.2d 181, 183. The information filed in this case clearly charges the third of the four enumerated offenses. We have held that the element ......
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Bresnahan v. People
...of counsel's representation. See Porter v. United States, 5 Cir., 298 F.2d 461; Goodson v. Peyton, 4 Cir., 351 F.2d 905; Kidder v. People, 115 Colo. 72, 169 P.2d 181; Cf. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680. Defendant has not shown that there was any real confl......
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Cross v. People, 16560
...79 Colo. 361, 246 P. 276; Koontz v. People, 82 Colo. 589, 263 P. 19; Martinez v. People, 111 Colo. 52, 137 P.2d 690; Kidder v. People, 115 Colo. 72, 169 P.2d 181; Warren v. People, 121 Colo. ----, 213 P.2d It was argued in Dekelt v. People, supra, that no assault was there committed in that......
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Warren v. People, 16176
...One of the grounds for reversal by this court of a judgment of conviction for taking indecent liberties in the case of Kidder v. People, 115 Colo. 72, 169 P.2d 181, was that the one count upon which the jury returned a verdict of guilty was insufficient. The insufficiency there pointed out ......