Struna v. People, 16291

• Decision Date: 27 February 1950
• Docket Number: No. 16291,16291
• Citation: 121 Colo. 348,215 P.2d 905
• Parties: STRUNA et al. v. PEOPLE.
• Court: Colorado Supreme Court

Page 905

215 P.2d 905

121 Colo. 348

STRUNA et al. v. PEOPLE.

No. 16291.

Supreme Court of Colorado, en Banc.

Feb. 27, 1950.

Frank G. Stinemeyer, Edwin H. Stinemeyer, Canon City, for plaintiffs in error.

John W. Metzger, Attorney General, Raymond B. Danks, Assistant Attorney General, for defendant in error.

HAYS, Justice.

Defendants were charged in separate counts of an information with rape and assault to commit rape of prosecutrix, a deaf mute, twenty-one years of age. Each was convicted on the second count, sentenced to the penitentiary, and they here seek reversal of the judgment, relying upon numerous errors alleged to have been committed by the trial court. Most of the errors assigned for reversal, relate to admitting, excluding or in refusing to strike certain evidence, which are matters resting within the sound discretion of the trial court. We have examined the record in the light of each error assigned and are convinced that the trial court did not abuse its discretion in ruling thereon. Two of the remaining points assigned merit consideration.

It first is contended that the court erred in refusing to permit the defendants' counsel to inspect a written statement alleged to have been made by the prosecutrix at a preliminary hearing before a justice of the peace.

During the trial counsel stated to the court that he wished to make a demand in open court upon the District Attorney for 'certain specified public documents.' He insisted with much vigor and in a manner which we do not approve, that he had a right to make such demand in the presence of the jury even though the argument on the points involved should be made in chambers out of its presence. In chambers, counsel argued at length concerning his alleged right to use all of such documents in possession of the District Attorney for impeachment purposes, 'without the expense of calling witnesses to prove matters that are matters of public record.' The public documents to which reference was made, consisted of six pages of ruled tablet paper upon which there appeared in long hand, questions and answers allegedly written during a preliminary hearing before a justice of the peace. The handwriting was not identified, and there is nothing to indicate that the answers were written by prosecutrix except by innuendo or implication. It is conceded that the sheets of paper do not contain a complete transcript of proceedings before the justice of the peace. The part of the document in which defendants' counsel seem to be particularly interested, is the answer, 'I don't think those boys really raped me but they played with me.' The sheet of paper upon which the above alleged answer of prosecutrix appears, shows it was tampered with by some one, by the drawing of a red line under said answer so as to unduly emphasize the one answer over all others on the exhibit. In overruling the demand of defendants' counsel for said exhibits, the trial court pointed out that other persons who attended the hearing before the justice of the peace, including the justice himself, were available and could be used as witnesses for impeachment purposes, if necessary. In harmony with the trial court's suggestion, Marjorie Struna, who attended the preliminary hearing, was called as a witness for the defense and testified at the trial that the prosecutrix had so testified in the preliminary hearing. At most, said evidence, if admitted, would have been cumulative in nature, and by reason of the incompleteness and mutilation of the exhibit, the failure to properly identify it as being in the handwriting of prosecutrix or to make proper offer of proof in relation to it, and in view of the further fact that defendants were not convicted of rape, we are convinced that they were not prejudiced and the trial court was justified in refusing to permit the inspection.

The above subject was fully discussed in Battalino v. People, 118 Colo. 587, 199 P.2d 897, where we pointed out that the question of the right of counsel for the defense to inspect documents in the possession of the district attorney lies within the discretion of the court, and unless such discretion is abused, its ruling should not be disturbed on review. Here we find no abuse of discretion.

It next is contended that the trial court erred in excluding evidence concerning the unchastity of prosecutrix, and her relations with men other than defendants during the evening in question.

In the brief of counsel for defendants it is stated that, 'despite the efforts of the District Attorney and trial judge to exclude the same, there is clear evidence that the prosecutrix was in close physical contact with other men * * *.' The above statement was evidently based upon the testimony of the prosecutrix that she had danced during the evening with two men, other than defendants, one of whom started to kiss her. Concerning this episode, the Attorney General states in his brief: 'Under this subheading in their argument, the defense fails to show one iota of evidence appearing in the record, or one succinct offer of proof designed to establish that the prosecutrix at any time left the dance floor with any man until she left with these defendants. We submit that no such evidence existed, since neither of defendants nor any of their male friends, who attended the dance, suggested that any one had opportunity to be intimate with the prosecutrix prior to the time she left with defendants. Had there been offer of proof to explain the corroborating evidence introduced by the People, and had the trial court refused such offer, then the...