Wolf v. People, 15670.
| Decision Date | 24 November 1947 |
| Docket Number | 15670. |
| Citation | 117 Colo. 321,187 P.2d 928 |
| Parties | WOLF et al. v. PEOPLE. |
| Court | Colorado Supreme Court |
Rehearing Denied Dec. 15, 1947.
Error to District Court, City and County of Denver; Joseph E. Cook Judge.
Julius A. Wolf, Charles H. Fulton and Betty Fulton were convicted of conspiracy to commit an abortion and they bring error.
Affirmed.
Where district attorney in his closing argument mentioned the fact of court's instruction concerning failure of defendant to take the stand but record showed no attempt to use failure against defendants and intimated that such remarks may have been provoked or made in response to arguments of opposing counsel, reversal was not required.
Philip Hornbein and Donald M. Schere, both of Denver, for Julius A. wolf.
F. E Dickerson and William F. Dwyer, both of Denver, for Charles H. Fulton.
Anthony F. Zarlengo, of Denver, for Betty Fulton.
H. Lawrence Hinkley, Atty. Gen., Duke W. Dunbar, Depty. Atty. Gen., and James S. Henderson, Asst. Atty. Gen., for defendant in error.
Plaintiffs in error are hereinafter referred to as defendants or by name. They were charged by information with conspiracy to commit an abortion. The woman involved was one Agnes Vera Bashor. On verdicts of guilty as to all Wolf and Fulton each received a sentence of fifteen months to five years in the penitentiary and Betty Fulton a sentence of one to two years. To review judgments entered accordingly they prosecute this writ. Their numerous assignments are somewhat complicated and largely repetitious. Those requiring any notice may however be properly classified approximately as they have been by the People in the brief of the Attorney General, i. e: 1--The verdict is unsupported by the evidence; 2--Erroneous admission of evidence; 3--Limitation of cross-examination; 4--Admitting evidence of similar offenses; 5--Overruling motions for separate trials; 6--Erroneous instructions; 7--Misconduct by the district attorney.
This is practically a companion case to No. 15666 decided by this court November 3, 1947, 187 P.2d 926, in that the principal question there considered is the principal one here. That case was tried December 4, 1944 before district judge Black and this February 25, 1945 before district judge Cook. Wolf is a plaintiff in error in each and the Fultons stand in this case in the position of Montgomery in the other. Save for Mr. Zarlengo, who did not appear in 15666, counsel in the cases were the same and they were argued together here. Exhibits A and C in the former case are Exhibits D and E here.
1--Assuming that the other alleged errors are without merit the evidence of the guilt of these defendants was overwhelming and what we said in the former case as to the plan of the conspiracy and the part each played in it is equally true here. Betty Fulton was the wife of Charles H. Fulton and assisted him in his work at his home. It should be added that no defendant in the instant case took the stand and no evidence was offered in their behalf.
2--This point relates to the admission of Exhibits D and E. The disposition of the question of their admissibility was disposed of in said case 15666 and is disposed of here in the same way and on the same authority and the opinion in that case must be read in connection herewith.
3--This point relates to an attempt to cross-examine the witness Bashor on an immaterial matter for the purpose of impeachment. Nothing more need be said about it.
4--The 'similar offenses' of which evidence was admitted related entirely to the plan or scheme followed by defendants in the present case and was definitely limited to that purpose by the court's instruction.
5--A motion for separate trials was filed jointly by Charles and Betty Fulton. It was not pressed by the latter on the trial. The action of the defendants in respect to the...
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