Manship v. People

• Decision Date: 01 June 1936
• Docket Number: 13734.
• Parties: MANSHIP v. PEOPLE.
• Court: Colorado Supreme Court

58 P.2d 1215

99 Colo. 1

MANSHIP v. PEOPLE.

No. 13734.

Supreme Court of Colorado, En Banc.

June 1, 1936

Rehearing Denied June 29, 1936.

Error to District Court, City and County of Denver; Henley A Calvert, Judge.

Charles R. Manship and another were convicted of rape, and the named defendant brings error.

Affirmed.

HILLARD and HOLLAND, JJ., dissenting.

John J. Morrissey and William H. Scofield, both of Denver, for plaintiff in error.

Paul P Prosser, Atty. Gen., and Walter F. Scherer, Asst. Atty. Gen for the People.

CAMPBELL, Chief Justice.

The information in this case charges the defendants Manship and Vera Brinkerhoff with the statutory crime of rape of Dora Shelton. Each defendant was found guilty. In the opening brief of the plaintiff in error, Manship, are set forth the various grounds in which the trial court is said to have committed errors prejudicial to him. He is the only plaintiff in error. In passing upon his motion for a separate trial for himself alone, which was interposed some time before trial on the merits, the trial court said that such a motion properly arises at, and not before, trial on the merits, and upon that ground alone denied the defendant's motion. At the trial on the merits defendant did not interpose or renew his motion for a separate trial which he might have done as the trial court had theretofore held was permissible. Under the facts above outlined, the defendant may not now upon this review be heard to complain of the refusal of the trial court to grant him a separate trial.

In addition to the foregoing, we say that under the rule announced in Kolkman v. People, 89 Colo. 8, 300 P. 575, the trial court's denial of the severance in this case is not erroneous. We said in that case, unless the bill of exceptions discloses the admission of prejudicial evidence, no error is committed in denying a motion for a severance. Applying that doctrine to this case, we say there is not disclosed improper admission of evidence prejudicial to plaintiff in error. Stone v. People, 71 Colo. 162, 204 P. 897, and Sarno v. People, 74 Colo. 528, 535, 223 P. 41, are in point, and are authority for the rulings of the trial court in the pending case.

There is vigorous discussion by counsel for Manship of the evidence produced at the trial with a view to show its alleged insufficiency to establish Manship's guilt. As is usually true in cases of this character, not all of the evidence produced at this trial is favorable to either party. We find no errors in the rulings of the trial court upon the evidence. The trial court found it legally sufficient to sustain the charge and imposed appropriate sentence. We do not deem it necessary to reproduce the unsavory evidence. It tends to sustain the charge. The trial court was in better position than we are upon this review to determine the credibility of the witnesses.

The judgment is affirmed.

HILLIARD and HOLLAND, JJ., dissent.

BUTLER Justice (concurring).

The opinion of Mr. Chief Justice CAMPBELL seems to me to be sound, and I concur therein. However, there are important assignments of error that are not mentioned in that opinion, and to those I address myself.

1. To prove that the prosecuting witness was under the statutory age of consent (18 years), the court admitted in evidence a so-called birth certificate purporting to be signed by 'H. S. Shafer, M. D.' It gave August 4, 1918, as the date of birth. The certificate was produced by the prosecuting witness' mother, who testified that her husband brought it home about 3 weeks after the birth of the prosecuting witness. The mother testified that 'Dr. Shafer is now upon Downing street. * * * He was in the State of Colorado the last time I heard.' There was no evidence that the doctor was out of the state or otherwise unavailable as a witness. There was no evidence that the signature on the certificate was his. The certificate so admitted was not a certified copy from the files of the registrar of vital statistics. It was error to admit it. But the mother testified that when the offense was committed (June 9, 1934) the prosecuting witness was 15 years of age. The prosecuting witness testified that she was 15 years of age at that time, and it was proper to admit such testimony. 10 R.C.L. p. 965. Moreover, a copy of the birth certificate, certified by the registrar of vital statistics, was offered, but the court erroneously sustained an objection thereto on the ground that the doctor's original certificate was filed with the registrar later than 10 days after the birth. Section 982, Compiled Laws of 1921, makes it the duty of the attending physician or midwife to file the birth certificate within 10 days after the date of birth. The effect of a failure to file within that time is to subject the doctor or midwife to a fine or imprisonment (C.L. § 994); it does not affect the admissibility of a copy thereof certified by the registrar. Such certified copy is prima facie evidence of the facts therein stated. C.L. § 990. It showed that the prosecuting witness was 15 years of age at the time the defendant had sexual intercourse with her. We have an analogy in the marriage law. Section 6, chapter 128, Session Laws of 1933 (page 682), requires the minister or officer who solemnizes a marriage to return the license and marriage certificate to the county clerk within 30 days from the date of marriage, and his failure to do so subjects him to a fine. A certified copy of the marriage record is evidence of the marriage. C.L. § 5562. Surely no one would contend that, where the minister or officer files the license and certificate after, instead of within, the 30 days, a certified copy would not be evidence of the marriage.

Not one word of evidence was received or offered to contradict the evidence that the prosecuting witness was only 15 years of age at the time the defendant debauched her.

In the circumstances, the erroneous admission of the uncertified certificate produced by the mother was not prejudicial to the defendant; hence it was not reversible. C.L. § 7103.

2. The defendant complains of the court's refusal to give a requested instruction to the effect that the defendant's testimony that the prosecuting witness represented herself to him to be 18 years of age might be considered in determining her credibility as a witness. The point was sufficiently covered in the court's instruction on the credibility of witnesses, hence the refusal to give the requested instruction was not error.

3. The defendant requested the court to instruct the jury as follows:

'The Court instructs you that in determining the age of the witness Dorothy Shelton, you are not to be governed solely by the testimony of witnesses on that subject, but may and should also take into consideration the appearance of Dorothy Shelton as you have seen her in the courtroom.

'If, after taking into consideration both the evidence and the appearance of Dorothy Shelton, you entertain a reasonable doubt as to whether she was not eighteen years of age at the time of the alleged rape, it will be your duty to acquit the defendants.'

The court refused the request, and such refusal is assigned as error. The requested instruction is objectionable in directing the jury, as a matter of law, that in determining the girl's age they 'are not to be governed solely by the testimony of witnesses on that subject.' The jury had the right to be governed solely by such testimony if they believed that it was true, and there was nothing in her appearance to indicate that she was older than the witnesses testified she was. Where a requested instruction contains two or more propositions of law, and one of them is unsound, the court may properly refuse to give the instruction. 14 R.C.L. p. 800.

It seems to me that this assignment of error is devoid of merit.

4. The court gave the following instruction:

'The Court instructs the jury that, as a matter of law, neither misrepresentation by the complaining witness, Dorothy M. Shelton, to the defendants as to her age, nor her appearance with respect to age, nor the fact that defendants, or either of them, actually believed that said Dorothy M. Shelton was eighteen years of age, are material in this case, if, from all evidence in the case, you believe beyound a reasonable doubt that at the time of the alleged act of sexual intercourse she actually was under the age of eighteen years.' (Italics are mine.)

This was objected to on the ground that 'it excludes from the jury the right to determine the age of the prosecuting witness * * * from an examination and an inspection of her.' Perhaps that trial court had in mind the rule that the fact, if it was a fact, that the girl appeared to be 18 years of age or over, and that from her appearance the defendant honestly believed her to be 18 or over, was no defense if in fact the girl was under 18. 52 C.J. p. 1038. The instruction does seem to be open to the defendant's criticism. Wigmore, in the second edition of his work on Evidence, says (volume 2, § 1154): 'A person'sappearance, as evidence of age for example, of infancy, or of being under the age of consent to intercourse, is usually regarded as relevant; and, if so, the tribunal may properly observe the person brought before it.'

Again (volume 1, § 222): 'Experience teaches us that corporal appearances are approximately an index of the age of their bearer, particularly for the marked extremes of old age and youth. In every case such evidence should be accepted and weighed for what it may be in each case worth. In particular, the outward physical appearance of an alleged minor may be considered in judging of his age; a contrary rule would be pedantically overcautious.'

In Quinn v. People, 51 Colo....