Pomeroy v. People

• Decision Date: 09 June 1947
• Docket Number: 15778.
• Citation: 182 P.2d 139,116 Colo. 518
• Parties: POMEROY v. PEOPLE.
• Court: Colorado Supreme Court

182 P.2d 139

116 Colo. 518

POMEROY v. PEOPLE.

No. 15778.

Supreme Court of Colorado, in Department.

June 9, 1947

Error to District Court, Jefferson County; Harold H. Davies, Judge.

Emmett Jackson Pomeroy was convicted of incest and statutory rape and he brings error.

Reversed and cause remanded.

In prosecution for incest and rape of minor daughter who refused to testify against accused, testimony of deputy sheriff and of county welfare worker as to statements by daughter out of the presence of accused, implicating accused in commission of offense, was inadmissible because hearsay, even if offered upon theory of impeachment.

A. D. Quaintance and E. B. Evans, 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.

HAYS Justice.

Plaintiff in error was convicted of incest and statutory rape, involving his minor daughter. The latter, being called as a witness for the people, in response to various questions of the district attorney, answered in substance, upon twenty-three separate occasions, 'I am not going to testify against my father.' In the briefs of the attorney general it is said: 'Her refusal to testify forced the people either to abandon the prosecution or submit the best evidence obtainable, and the district attorney elected to pursue this latter course.'

In an effort to supply 'the best evidence obtainable,' and as a substitute for positive evidence, the district attorney called as witnesses, Carl Enlow, deputy sheriff, and Mrs. Dorothy Evans, county welfare worker, to testify as to extrajudicial statements alleged to have been made to them by the daughter, out of the presence of the defendant, wherein she allegedly implicated the latter in the commission of the offense.

In holding such testimony inadmissible, we said in Clark v. People, 103 Colo. 371, 373, 377, 86 P.2d 257, 258:

'Whatever the conversation was, it was held out of the defendant Clark's presence and hearing * * *. This testimony could not be received under any recognized exception to the hearsay rule, * * *. Its admission constituted reversible error.'

'Statements concerning the question of responsibility for an injury or physical condition are inadmissible. Lowery v. Jones, 219 Ala. 201, 202, 121 So. 704, 706, 64 A.L.R. 553, 555, 556; see also, top of p. 564 of Annotation. The responsibility cannot be fixed in this roundabout way as a substitute for legal evidence that is not available.'

We adhered to the above announced rule in Cobianchi v. People, 111 Colo. 298, 305, 141 P.2d 688, 692, where, after quoting a portion of the above from the Clark case, we said: 'In line with the foregoing, testimony of a statement by Geraldine to her physician as to the person responsible for her physical condition is hearsay and incompetent.'

In the trial below the district attorney contended that hearsay evidence was admissible for the purpose of the impeaching testimony of the daughter. When objection was made to such testimony, the district attorney said: 'In this particular case the prosecution has shown that the witness in question, namely the victim of this rape, * * * has been shown to be hostile. She is, in fact so hostile she is now practically in contempt of court for her refusal to answer questions. The state therefore has a right to impeach her testimony, or her lack of testimony, by laying the foundation for further questions and her testimony may be proved by other witnesses.' (Italics ours.)

In his presentation here, the attorney general properly abandoned the above contention of the district attorney, and concedes that such testimony is inadmissible for purposes of impeachment. In his brief, he says:

'Here we have no question of impeachment, corroboration, or contradiction of witness * * *. We have, instead, her refusal to testify. Under such circumstances, the question is, we believe, may the district attorney, suddenly confronted with a hostile witness, show the material statements made by such witness at an earlier time?

'We are constrained to admit that the testimony of the witnesses Enlow and Evans as to the statements made to them by * * * [the daughter] admitting that she had engaged in acts of sexual intercourse with

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