Wilkinson v. People

• Decision Date: 04 November 1929
• Docket Number: 12441.
• Citation: 282 P. 257,86 Colo. 406
• Parties: WILKINSON v. PEOPLE.
• Court: Colorado Supreme Court

282 P. 257

86 Colo. 406

WILKINSON v. PEOPLE.

No. 12441.

Supreme Court of Colorado, En Banc.

November 4, 1929

Rehearing Denied Nov. 25, 1929.

Error to District Court, City and County of Denver; Charles C Sackmann, Judge.

Ernest Wilkinson was convicted of rape, and he brings error.

Affirmed.

Objection as to improper suggestions to witness and misconduct during argument were too late on appeal.

Frank S. Morrison, Dallas O. Plummer, and Samuel D. Menin, all of Denver, for plaintiff in error.

Robert E. Winbourn, Atty. Gen., and E. J. Plunkett, Asst. Gen., for the State.

ALTER J.

Ernest Wilkinson, hereinafter referred to as defendant, was convicted of, and sentenced for, the crime of rape. He assigns error, sues out this writ, and asks for a supersedeas.

The information contains two counts; the first charging rape by force, and, the second, rape upon a person 'incapable through unsound mind of giving legal consent,' but inasmuch as the verdict returned on the first count was 'not guilty,' only the second count need by considered.

There are eighteen assignments of error, which for convenience we will group as follows: (1) Refusal to quash information, and at the conclusion of the people's case, to direct a verdict for the defendant; (2) permitting the injured party to be sworn and testify; (3) permitting the wife of the defendant to be sworn; (4) improper conduct of the district attorney.

The defendant, who is the stepfather of the victim, and his wife, mother of the victim, were married about eleven years before the commission of the offense, and, while their domestic life was not always happy, the evidence discloses no very serious trouble. The defendant was a sheep herder by occupation, and his wife was employed in a Denver factory every day, with the exception of Saturday afternoons and Sundays.

The victim was a dwarf, 24 years of age, about four feet in height, and weighing about 60 pounds. It appears from the testimony that, in general, her mentality was that of a child of 10 years, although she had completed the ninth grade work in the public schools. The evidence discloses that she was seldom away from home, where she was engaged in such work as one of her physical and mental powers might be expected to perform. The people's evidence is to the effect that, when the defendant and his victim were at home alone, he frequently had sexual intercourse with her, over a considerable period of time, and that he continued this practice until she informed her mother, who immediately caused his arrest. At the trial the defendant denied any acts of intercourse.

1. There was no preliminary examination in this case; the information filed being supported by the affidavit of the defendant's wife. The defendant moved to quash the information because it was contended that, under the provisions of section 7076, C. L. 1921, the information must be supported by the affidavit of a person 'who is a competent witness to testify in the case,' and under the provisions of section 6563, C. L. 1921, the person making the affidavit, being the wife of the defendant, is incompetent. The motion to quash was denied and exception to the ruling saved; after the people had rested their case, the motion for a directed verdict, based on the grounds urged in support of the motion to quash, was also denied, and proper exception saved.

The affidavit supporting the information read, in part, as follows: 'That the facts stated in the foregoing information, hereto attached, are true, and that the offense therein charged was committed of this affiant's own personal knowledge.' Under our decisions, this is sufficient to make the information good, as against a motion to quash. Ausmus et al. v. People, 47 Colo. 167, 176, 107 P. 204, 19 Ann.Cas. 491; Bosko et al. v. People, 68 Colo. 256, 259, 188 P. 743.

We have also held that the person making the affidavit is a 'competent witness to testify in the case,' until the contrary appears, and that the affidavit supporting the information need not allege that the person making it is a competent witness. Wait v. People, 46 Colo. 136, 140, 104 P. 89.

The wife of the defendant was called to the witness stand, and interrogated with reference to her relationship to the defendant, and, upon her answering that she was his wife, was immediately excused from the stand. The defendant contends that this was error, because he was compelled, in the presence of the jury, to object to his wife's testimony.

We have held that bigamy was such a crime committed by one against the other as to make the wife a competent witness against her defendant husband, under the provisions of section 6563, C. L. 1921. Schell v. People, 65 Colo. 116, 121, 173 P. 1141, L.R.A. 1918F, 954, and we determined that the wife was a competent witness against her husband charged with the crime of perjury, which was committed in making a false affidavit in a divorce action against her. Dill v. People, 19 Colo. 469, 475, 36 P. 229, 232, 41 Am.St.Rep. 254.

In the Dill Case, supra, we said:

'That the making of the affidavit, if false, was a crime, is conceded. But it is contended by defendant's counsel, that it was a crime against the state--a crime against society; a public crime, but not a crime against the wife.

'All crimes are crimes against the public. The first element of a crime, as stated in our Criminal Code, is that if 'consists in a violation of a public law.' Gen. St. p. 292. But crimes directly affecting particular persons or individuals are uniformly considered crimes against such persons or individuals. For example, the murderer commits a crime against the person whose life he destroys; the thief commits a crime against the person whose property he steals; the libeler commits a crime against the person whose good name and fame he destroys or injures; and yet all these several classes of crimes are crimes against the public. * * *

'From a review of the decisions it appears that there is some conflict in respect to the question as to when a husband or wife may testify against the other, under statutes like ours. In Texas a late decision seems to limit the wife's right to testify against her husband to cases of violence against her person, as at common law. On the other hand, the Iowa and Nebraska decisions, under a statute like ours, extend the right to the wife to testify against her husband in any criminal action or proceeding for any crime committed against her, and bigamy and adultery are held to be crimes against the lawful wife. * * *

'Since some private wrong or injury is included in every crime, it is evident that the word ' crime,' in that clause of the statute which permits the husband or wife to testify against the other in a 'criminal action or proceeding for a crime committed by one against the other,' means the private wrong or injury included in such public crime. The word must have such meaning, or the statute is meaningless. It follows that a wife is competent to testify against her husband, in a criminal action or proceeding, whenever she is the individual particularly and directly injured or affected by the crime for which he is being prosecuted.' In the Dill Case, supra, the court had under

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