Laycock v. People

• Decision Date: 07 July 1919
• Docket Number: 9206.
• Citation: 66 Colo. 441,182 P. 880
• Parties: LAYCOCK v. PEOPLE
• Court: Colorado Supreme Court

182 P. 880

66 Colo. 441

LAYCOCK v. PEOPLE

No. 9206.

Supreme Court of Colorado

July 7, 1919

Error to District Court, Denver County; Julian H. Moore Judge.

James J. Laycock was convicted of having carnal knowledge of an unmarried female person under the age of 18 years, and he brings error. Reversed and remanded.

James P. Wilson, Charles H. Sherrick, and Henry E May, all of Denver, for plaintiff in error.

Leslie E. Hubbard, Atty. Gen., John L. Schweigert and Bertram B Beshoar, Asst. Attys. Gen., Victor E. Keyes, Atty. Gen., and W. R. Ramsey, Asst. Atty. Gen., for the People.

GARRIGUES C.J.

1. The information charges that on February 8, 1917, defendant, a male person over the age of 18 years, did feloniously have carnal knowledge of one Claudell Jarvis, an unmarried female person under the age of 18 years. The jury found defendant guilty, and the court sentenced him from 6 to 10 years in the penitentiary. The participants were the only witnesses to the transaction. The prosecutrix testified positively to the act which defendant as positively denied. The jury might have convicted or acquitted, and there would have been sufficient evidence to sustain the verdict. The court asked defendant while he was upon the witness stand as a witness in his own behalf, the following questions:

'By the Court: Q. Mr. Laycock, what is your explanation of why you happen to be here now as a defendant in this case? A. Why, I believe it is due to excitement, or something like that, or a mistake. Q. Do you mean to tell these jurors your wife and your stepdaughter are trying to frame up a case on you?'

These questions might be unobjectionable, or not reversible error, had they come from the district attorney; but, coming from the court, they were prejudicial. They tended to induce in the minds of the jury a belief that, in the court's opinion, defendant was guilty. With the witnesses so closely pitted against one another, it is hard to say what influence, coming from the bench, these questions may have had upon the minds of the jury; but that they were prejudicial to the defendant there can be no doubt. The jury may have believed the defendant's story, or, if the whole evidence on the trial raised a reasonable doubt in their minds as to his guilt, it was their duty to give him the benefit of the doubt and acquit him. Such questions propounded from the bench may have had a deciding weight against the defendant. The court will find it much safer in criminal cases to permit counsel to conduct the examination of the witnesses. Adler v. U.S., 182 F. 464, 104 C.C.A. 608; People v. Acardo, 140 A.D. 929, 125 N.Y.S. 502; Taylor v. State, 2 Ga.App. 723, 59 S.E. 12; C. B. & Q. R. R. Co. v. Kellogg, 55 Neb. 748, 76 N.W. 462; Leo v. State, 63 Neb. 723, 89 N.W. 303. For the error above indicated, alone, the judgment is reversed and the case remanded.

2. Inasmuch as the case is remanded for trial de novo, we will pass upon other assignments of error as a guide to the lower court in the event of a new trial. Defendant married the mother of the prosecutrix, and they had a child. The prosecutrix lived with them as a member of the family. August 22, 1915, the mother went East on a visit and left her at home to keep house and care for the family. She was then between 14 and 15 years of age, and was sexually a fully developed woman. She occupied a bedroom with the child, which was then 4 or 5 years old. The people's evidence shows that, as soon as the mother left, defendant tried to have sexual intercourse with his stepdaughter, and on the third night, August 24th, succeeded. After that this relation was maintained at frequent intervals for about 2 years; the last act occurring February 8, 1917. Defendant was convicted of this transaction. It was not common-law rape; that is, her resistance was not overcome by force and violence. She was of the age that made her incapable of consenting under the statute; but she was physically able and mentally capable of consenting, and went to his bedroom to participate in the act, and it was not a case of forcible rape against her will.

In rape cases, the complaint must state a specific date or time when it is alleged the transaction occurred; but the date pleaded is an immaterial allegation, and need not be proven as laid. It is the transaction that is material, and the district attorney may select any act upon which he will rely for a conviction, within the period of the statute of limitations, which, in this case, is 3 years prior to the filing of the information. The defendant can be prosecuted for but one single act, and, generally speaking, the people can offer evidence of but one transaction to support the charge.

In cases of this kind, however, where there are many acts or transactions, any one of which would constitute the offense charged, the people may, on motion, be compelled to select the transaction upon which they depend for a conviction. That the selection should be made before defendant is compelled to proceed with his defense all the authorities agree; but whether it should be made before the people introduce any evidence, or at the close of the people's case, or during the progress of the trial, if other transactions are developed, the authorities do not seem to be in harmony. The matter rests largely in the discretion of the trial court and in most cases it would be better for the court to permit the evidence to proceed far enough to identify the transaction upon which the people rely for a...