Marn v. People, No. 23879

Docket NºNo. 23879
Citation486 P.2d 424, 175 Colo. 242
Case DateJune 28, 1971
CourtSupreme Court of Colorado

Page 424

486 P.2d 424
175 Colo. 242
Deniel Alvin MARN, Plaintiff in Error,
v.
The PEOPLE of the State of Colorado, Defendant in Error.
No. 23879.
Supreme Court of Colorado, En Banc.
June 28, 1971.

[175 Colo. 243]

Page 425

Edward H. Sherman and William J. Chisholm, Public Defenders in and for the City and County of Denver, Truman E. Coles, Asst. Deputy Public Defender, David A. Fogel, Asst. Public Defender, and Randolph M. Karsh, Deputy Public Defender, Denver, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Robert L. Hoecker, Asst. Atty. Gen., Denver, for defendant in error.

OYER G. LEARY, District Judge. *

[175 Colo. 244] The plaintiff in error, hereinafter referred to as defendant, was by a jury convicted of the crime of felonious assault, on a child under age sixteen. The motion for new trial set forth two points of error, being (1) incompetency to testify of the two minor State witnesses, being the victim age nine years, and her sister age ten years; and (2) failure to grant judgment of acquittal at close of People's case, and at the conclusion of all evidence. The briefs as filed by defendant's counsel in this Court raised for the first time two additional grounds, being (3) material variances between the proof and the charge, and (4) failure to tender to the jury an instruction concerning defendant's theory of the case.

We note that in accordance with the standards of criminal justice this case has been presented here on the brief of defendant's counsel, who waived oral argument. We have recently held that counsel after preparing and filing a brief on behalf of the client in a criminal case, can properly suggest that the case be submitted on briefs without oral argument as was done here. McClendon v. People, Colo., 481 P.2d 715, and Garcia v. People, Colo., 483 P.2d 1347.

Briefly stated the evidence presented by the People at the trial came from six witnesses and was to the effect that the victim had gone into the woman's portion of a public bathroom at Berkeley Park in Denver, with her sister. That while there the defendant entered and touched her between the legs with his hands. The victim and her sister identified defendant as the perpetrator of the offense. The other surrounding circumstances of the offense and the apprehension of the defendant immediately after the incident were corroborated by the other witnesses. The defendant took the stand in his defense and testified that he entered the restroom by mistake and denied touching the victim.

We have considered all assigned errors and find no merit in defendant's contentions and therefore affirm.

[175 Colo. 245] I

Concerning the first assignment of error, the record reflects that the trial court prior to proceeding in open court conducted a competency hearing concerning the qualifications of two minor witnesses. At the conclusion of a rather lengthy and detailed hearing the trial court ruled that the witnesses were qualified to testify. Defendant's counsel concede that the evidence adduced at this hearing established that the girls knew the difference between right and wrong, and that the court went to great lengths to determine if they could recall past events and would tell the truth. Defendant's complaint is that this evidence was not tantamount to their specifically comprehending the nature, solemnity, obligation, effect or meaning of an oath. The People answer that, even though the girls indicated a lack of understanding of the legal definition of the term 'oath,' nevertheless both clearly understood their obligation to tell the truth and expressed a belief that they would be punished by their parents and God, should they fail to tell the truth. The statute governing

Page 426

competency of witnesses applicable to this situation is C.R.S.1963, 154--1--6(1), which reads in part as follows:

'(a) The following persons shall not be witnesses:

'(c) 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.'

Since the adoption of this statute this Court has had numerous...

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36 practice notes
  • People v. Auman, No. 99CA0016.
    • United States
    • Colorado Court of Appeals of Colorado
    • September 26, 2002
    ...People v. Inman, 950 P.2d 640, 645 (Colo.App.1997), or is "merely another attempt to reargue the case." Marn v. People, 175 Colo. 242, 248, 486 P.2d 424, 427 The first paragraph in defendant's instruction "tends to be argumentative rather than instructive." See People v.......
  • Kogan v. People, No. 85SC489
    • United States
    • Colorado Supreme Court of Colorado
    • May 9, 1988
    ...a material element of the offense, the precise time at which the crime is charged to have been committed is not material. Marn v. People, 175 Colo. 242, 247-48, 486 P.2d 424, 427 (1971). See also State v. Hauck, 172 Conn. 140, 374 A.2d 150 (1976) (legitimate for state to comply with court o......
  • Snyder v. State, S-20-0245
    • United States
    • United States State Supreme Court of Wyoming
    • October 12, 2021
    ...v. Williams , 2018 WL 1217361, *2 (Ohio Ct. App. Mar. 8, 2018) ; State v. Spaniol , 895 N.W.2d 329, 337 (S.D. 2017) ; Marn v. People , 175 Colo. 242, 486 P.2d 424, 426 (1971) (en banc); Ortiz v. Commonwealth , 276 Va. 705, 667 S.E.2d 751, 756 (2008). Young, ¶¶ 12-13, 418 P.3d at 227. In the......
  • Deeds v. People, No. 85SC336
    • United States
    • Colorado Supreme Court of Colorado
    • December 21, 1987
    ...date of the offense as alleged in the information and the date as proved at trial is not fatal. Id. at 571; see, e.g., Marn v. People, 175 Colo. 242, 486 P.2d 424 (1971) (three-day variance); Albritton v. People, 157 Colo. 518, 403 P.2d 772 (1965) (five-day variance). The defendant claims t......
  • Request a trial to view additional results
36 cases
  • People v. Auman, No. 99CA0016.
    • United States
    • Colorado Court of Appeals of Colorado
    • September 26, 2002
    ...People v. Inman, 950 P.2d 640, 645 (Colo.App.1997), or is "merely another attempt to reargue the case." Marn v. People, 175 Colo. 242, 248, 486 P.2d 424, 427 The first paragraph in defendant's instruction "tends to be argumentative rather than instructive." See People v.......
  • Kogan v. People, No. 85SC489
    • United States
    • Colorado Supreme Court of Colorado
    • May 9, 1988
    ...a material element of the offense, the precise time at which the crime is charged to have been committed is not material. Marn v. People, 175 Colo. 242, 247-48, 486 P.2d 424, 427 (1971). See also State v. Hauck, 172 Conn. 140, 374 A.2d 150 (1976) (legitimate for state to comply with court o......
  • Snyder v. State, S-20-0245
    • United States
    • United States State Supreme Court of Wyoming
    • October 12, 2021
    ...v. Williams , 2018 WL 1217361, *2 (Ohio Ct. App. Mar. 8, 2018) ; State v. Spaniol , 895 N.W.2d 329, 337 (S.D. 2017) ; Marn v. People , 175 Colo. 242, 486 P.2d 424, 426 (1971) (en banc); Ortiz v. Commonwealth , 276 Va. 705, 667 S.E.2d 751, 756 (2008). Young, ¶¶ 12-13, 418 P.3d at 227. In the......
  • Deeds v. People, No. 85SC336
    • United States
    • Colorado Supreme Court of Colorado
    • December 21, 1987
    ...date of the offense as alleged in the information and the date as proved at trial is not fatal. Id. at 571; see, e.g., Marn v. People, 175 Colo. 242, 486 P.2d 424 (1971) (three-day variance); Albritton v. People, 157 Colo. 518, 403 P.2d 772 (1965) (five-day variance). The defendant claims t......
  • Request a trial to view additional results

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