Milow v. People

• Decision Date: 05 October 1931
• Docket Number: 12797.
• Citation: 89 Colo. 469,3 P.2d 1077
• Parties: MILOW v. PEOPLE.
• Court: Colorado Supreme Court

3 P.2d 1077

89 Colo. 469

MILOW v. PEOPLE.

No. 12797.

Supreme Court of Colorado

October 5, 1931

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

Ralph Milow was convicted of statutory rape, and he brings error.

Affirmed.

Charles T. Mahoney, of Denver, for plaintiff in error.

Clarence L. Ireland, Atty. Gen., E. J. Plunkett Asst. Atty. Gen., and Earl Wettengel, Dist. Atty., and Harold E. Popham, Dep. Dist. Atty., both of Denver, for the People.

ALTER J.

Ralph Milow, hereinafter referred to as defendant, was convicted of the crime of statutory rape, and sentenced to a term in the penitentiary. He prosecutes this writ, assigning as error (1) Misconduct of the trial judge; (2) misconduct of the district attorney; (3) refusal to give tendered instructions (4) striking of supplemental motion for a new trial.

1. This assignment pertains to two matters: First, the remarks of the trial judge in excluding persons under the age of eighteen years from the courtroom during the trial of the cause, after the jury was impaneled and in their presence; and second, in excluding defendant's mother from the courtroom.

Under the first, the record discloses the remarks of the trial judge were: 'The Court: With the exception of the complaining witness, Virginia Davis, are there any boys or girls in the court room under eighteen years of age. If there are, will you stand up--anybody under eighteen years of age. It will be necessary, if you are witnesses, to wait outside, both of you. We can't have you stay in here and hear a case of this kind. Now, I want to say to the rest of you people, both men and women, this is a rape case. The testimony in this class of cases ordinarily is repulsive. Things are spoken here that are not pleasing to anybody's ears, if they are ladies and gentlemen. So I tell you folks in advance, those over eighteen years of age, there are going to be things here that will be said that will be very disagreeable. If you are here out of idle curiosity it is a poor place for you to be. If you are witnesses, or anything of the kind, of course it is necessary for you to be here. But anybody who voluntarily comes here to hear this salacious testimony,--it is bad and nobody that considers themselves ladies or gentlemen would want to stay here and hear this kind of testimony.'

There was no objection to the court's action in thus excluding children, but counsel argue that this statement was highly prejudicial to the defendant because, first, it intimated that the trial judge disliked to hear testimony in cases of this nature, and, second, without hearing the testimony or knowing what it would be, it was termed by the court as salacious. The first intimation is the natural revulsion of a normal man; the second, a careful examination of the evidence discloses, if it was prophetic, was nevertheless true.

The second matter presented under this assignment was the action of the trial judge in excluding defendant's mother from the courtroom for 'coaching' defendant while testifying, and the record discloses the following:

'The Court: (Addressing audience) Now, don't you do that any more--I mean you. You better go outside.

'A Voice: Me?

'The Court: Yes, you, for shaking your head. I won't have you coaching witnesses in this court room. Now, you go outside.'

The excluded witness had already testified, and it is argued that the defendant was prejudiced by the court's action because it had the effect of causing the jury to wholly disregard the witness's testimony. It is further made to appear, by an affidavit in support of the motion for a new trial, that the witness denied that she had been guilty of 'Coaching' the defendant while he was testifying. No objection was made at the time the witness was excluded; the trial judge was in position to see and know if the witness was interfering with the defendant and attempting to influence his answers, and, under all the circumstances, we must assume that he acted properly. The alacrity with which the witness seemed to identify herself when the trial judge addressed his remarks to the audience, lends great weight to the trial judge's conclusion that the excluded witness was in fact offending.

2. The district attorney, in his argument Before the jury, called attention to the fact, developed by the evidence, without objection, that defendant was twenty-four years of age; twice married, and that his daughter was born within a period of less than four months after his second marriage. The district attorney also made some allusion to the fact that defendant's mother had been excluded from the courtroom because of her 'coaching' of defendant. Defendant's counsel made no objection to this argument gave the court no opportunity of instructing the district attorney to discontinue it if it was objectionable, and made no request that the court instruct the jury to disregard it. The conduct of defendant's counsel was such as to indicate that this argument was not objectionable. When counsel fail to make timely objections to alleged improper arguments, it may be said as a general rule that error, based thereon, will not be considered by this court. Klink v. People, 16 Colo. 467, 469, 27 P. 1062; Gilstrap v. People, 30 Colo. 265, 268, 70 P. 325; Foster v. People, 56 Colo. 452, 461, 139...