Wills v. People, 14105.

• Decision Date: 08 March 1937
• Docket Number: 14105.
• Citation: 66 P.2d 329,100 Colo. 127
• Parties: WILLS v. PEOPLE.
• Court: Colorado Supreme Court

66 P.2d 329

100 Colo. 127

WILLS v. PEOPLE.

No. 14105.

Supreme Court of Colorado, En Banc.

March 8, 1937

Error to District Court, Mineral County; John B. O'Rourke Judge.

Frank Wills was convicted of statutory rape, and he brings error.

Affirmed.

Charles H. Woodard, of Colorado Springs, and George H. Blickhahn, of Alamosa, for plaintiff in error.

Byron O. Rogers, Atty. Gen., and Walter F. Scherer, Asst. Atty Gen., for the People.

BAKKE Justice.

Plaintiff in error, hereinafter referred to as the defendant, was convicted of statutory rape and sentenced to a term of from nine to fifteen years in the penitentiary. He asked for a review of that judgment, that his writ be made a supersedeas, and that the judgment of the lower court be reversed. He makes thirty-seven assignments of error, which are more or less cumulative, but the points he relies on for reversal are summed up in the following: (1) Failure of the court to require the state to elect date relied upon for conviction upon motion of the defendant; (2) permitting the asking of leading questions by the district attorney; (3) misconduct of the spectators; (4) misconduct of the district attorney; (5) that no definite date was selected or proved on which the alleged offense took place; (6) refusal of defendant's exhibits; and (7) instructions.

In the information it was stated 'that on or about the 16th day of February A. D. 1935, at the said County of Mineral, in the State of Colorado, Frank Wills, who was then and there a male person over the age of eighteen years, did then and there unlawfully and feloniously carnally know one * * * [Miss Y, a minor], who was then and there an unmarried female person under the age of eighteen years, to-wit: of the age of sixteen years, and who was not then and there the wife of the said Frank Wills, contrary,' etc.

The affidavit to the information was signed by John L. McMenamin superintendent of the State Home for Dependent and Neglected Children, and the prosecuting witness was the girl upon whom the alleged crime was committed.

The facts were substantially as follows: The defendant and his wife owned and operated a tourist ranch on the Rio Grande river west of Creede, in Mineral county and also a fishing lodge at Ruby Lake about fifteen miles away. In the spring of 1934 the defendant made application to the State Home for a girl to be the companion of his daughter. After considerable correspondence and an investigation, the prosecuting witness and her younger sister, sixteen and fourteen years old, respectively, were sent to the Wills ranch. They were never legally adopted by the Wills.

The girls were given ponies and taught to ride, and soon were accompanying the defendant on various trips, acting as guides to the tourists, particularly Miss Y, the older of the two girls. Frequently it was necessary for them to stay away overnight, and the defendant admitted sleeping in the same bed with Miss Y on these occasions, but denies ever having sexual intercourse with her. One particular occasion allegedly took place in the bunkhouse on the ranch on or about March 26, 1935. In the spring of 1935 Miss Y became pregnant and she had a baby on the 14th of November of that year. Upon being advised of what had happened, Superintendent McMenamin had the girls brought back to Denver and filed the charge which resulted in the defendant's conviction.

During the trial, when the state was about half through with its case, counsel for defendant asked that the district attorney 'be compelled to elect on what date he seeks a conviction in this case,' to which the court responded that he might renew his motion at the close of the state's case.

At the conclusion of the state's case the district attorney elected to rely on the offense in the bunkhouse on or about March 26, 1935, and the jury was so advised Before the defense began its case. This being true, it does not violate the rule in the Laycock Case.

'That the selection should be made Before defendant is compelled to proceed with his defense all the authorities agree; but whether it should be made Before the people introduce any evidence, or at the close of the people's case, or during the progress of the trial, if other transactions are developed, the authorities do not seem to be in harmony. The matter rests largely in the discretion of the trial court, and in most cases it would be better for the court to permit the evidence to proceed for enough to identify the transaction upon which the people rely for a conviction Before compelling a selection.' Laycock v. People, 66 Colo. 441, at page 444, 182 P. 880, 881.

During the direct examination of the prosecuting witness it apparently became necessary, because of her confusion, to ask some leading questions which the court permitted. They had to do with the delicate and intimate circumstances concerning the perpetration of the act being relied upon for conviction, and it is not surprising that a seventeen year old girl would be somewhat reluctant to answer such questions. We feel that it was well within the court's power to do this. Polochio v. People, 76 Colo. 574, 233 P. 833, and Wickam v. People, 41 Colo. 345, 93 P. 478.

Counsel for defendant...