Shier v. People

• Decision Date: 05 May 1947
• Docket Number: 15624.
• Citation: 181 P.2d 366,116 Colo. 353
• Parties: SHIER v. PEOPLE.
• Court: Colorado Supreme Court

181 P.2d 366

116 Colo. 353

SHIER v. PEOPLE.

No. 15624.

Supreme Court of Colorado, En Banc.

May 5, 1947

Rehearing Denied June 2, 1947.

Harry A. Shier was convicted of sodomy, and he brings error.

Affirmed.

Appeal from District Court, Jefferson County Harold H. Davies, judge.

Ralph L. Carr, Francis S. Mancini and Wilbur E. Rocchio, all of Denver, for plaintiff in error.

H Lawrence Hinkley, Duke W. Dunbar and James S. Henderson, all of Denver, for defendant in error.

HAYS Justice.

Harry A. Shier, plaintiff in error, was convicted of the crime of sodomy, and was sentenced to serve a term in the state penitentiary. He asks reversal of the judgment upon the following grounds:

'1. Motion for mistrial should have been granted.

'2. The court erred in failing to warn the jury Sua Sponte that evidence of other acts could not be received to prove defendant's guilt.

'3. The district attorney committed error in proving other acts of misconduct than that charged in the information.

'4. The court erred in holding that evidence of other acts of alleged misconduct was admissible to prove motive or plan.

'5. The court erred in instructing the jury that evidence of other acts of misconduct was admissible to prove a motive or plan.' Upon the first ground it is claimed that a mistrial should have been granted under the following circumstances: Defendant's housekeeper was asked: 'Did you ever talk to the doctor [defendant] concerning any relations between he and Lyle [complaining witness]?' The witness answered, 'No, sir.' She was then asked: 'Between he and any other boy?' to which she answered: 'Yes, sir.' At the close of the people's case defendant's attorney moved for a mistrial, which motion was denied by court.

Neither in the motion for new trial in the district court, nor in the assignments of error here, have counsel for defendant claimed error resulting from refusal of the trial court to grant a mistrial, on account of the above circumstance. They contend, however, that even though said point was not so raised, nevertheless this court should notice the error and correct it. They rely upon McRae v. People, 101 Colo. 155, 71 P.2d 1042. In that case we cited and followed the opinion in Reppin v. People, 95 Colo. 192, 34 P.2d 71, 78, wherein we stated: 'True, the defendant's appointed counsel interposed no objection to such evidence, or to the evidence concerning the Pot and Spigot incident, and we are not required to consider objections not made below. Nevertheless, we may, and sometimes do, consider such objections when we feel that a seriously prejudicial error was made and that justice required such consideration. We have done so in cases involving adults; and where the life of a minor is at stake, the call to do so is more imperative.'

It was not our intention by the above pronouncement to overrule our holding in Wilder v. People, 86 Colo. 35, 278 P. 594, 599, 65 A.L.R. 1260, where we said: "Is there,' we are asked in defendant's closing brief, 'a hard and fast rule that the court cannot in any case review the evil conduct of a prosecuting official in the absence of objection thereto?' There is no such rule. Had this defendant, in our opinion, been convicted of a crime of which he was probably innocent, we would unhesitatingly exercise our discretion to notice errors probably prejudicial though not properly saved. This is not such a case.'

A careful examination of the present record convinces us of the defendant's guilt; that he was in no way prejudiced by the above incident; and that under the circumstances justice does not require us to notice the alleged error in the absence of proper reference thereto in the motion for new trial and assignments of error. The witness was promptly and properly stopped by a capable and alert trial judge on his own motion from relating a conversation on an immaterial and irrelevant matter, thereby avoiding evidence which might have been prejudicial. There is nothing appearing in the record to indicate that the jury was advised concerning the nature of the conversation, whether favorable to the defendant or otherwise.

Upon the first ground presented for reversal, it is sufficient to hold, as we do, that neither McRae v. People, supra, nor Martin v. People, 114 Colo. 120, 162 P.2d 597, cited by defendant, is applicable in the instant case, and that the trial court did not commit error in overruling the motion for mistrial.

The other assignments of error relate to testimony concerning other acts of similar misconduct by the defendant with the same boy but at different times than that set forth in the information. Counsel for defendant contend in substance: (a) evidence of such acts is not admissible to prove guilt, and that the court should have instructed the jury sua sponte not to consider the same for such purpose; (b) evidence of said acts is not admissible to prove plan or design and the court erred in instructing the jury to such effect.

With respect to contention (a) above, there is no merit therein. In Schreiner v. People, 95 Colo. 392, 36 P.2d 764, the defendant was charged with statutory rape. In his opening statement, the district attorney said 'that he expected to show that the defendant had intercourse with the girl on four different days; namely, on June 4, 8, and 11, and July 23, 1933. Thereupon, and Before evidence was introduced, counsel for defendant moved that the people be required to elect upon which act * * * the people relied for conviction.' The motion was denied and evidence of other acts admitted. At the close of the people's case the motion to elect was renewed and sustained, whereupon the district attorney elected to stand on the act committed on June 11, 1933, the date charged in the information. Speaking to this point we said, at page 395 of 95 Colo., at page 765 of 36 P.2d: 'It is contended that it was reversible error to refuse the defendant's first motion to require the people to elect. We cannot uphold the contention. Whether the election should be...