*1 15,130. No. People. v. Bashford (135 516) [2d] P. March Decided *2 Mr. Charles T. Mr. A. Murdock, Mahoney, Charles plaintiff in error. Attorney Mr. Mr. H. Law- General, Ireland, Gail L. Deputy, As- Mr. James S.
rence Hinkley, Henderson, people. sistant, for the En Banc. court. delivered the
Mr. Justice Burke defend- error, to as hereinafter referred Plaintiff conspiracy charged jointly ant, two others with with By agreement or- to commit abortion. a severance was separately dered and she tried. On a verdict years guilty sentenced term of to five for a four judgment prose- penitentiary. To review that fifty-three assignments grouped Her are cutes this writ. argued headings. further under seven These we rearrange, (1) Misconduct condense, and so consider: rulings judge; (2) evidence; trial erroneous on insufficiency rulings (4) (3) instructions; on erroneous evidence. remarks, some that certain It is contended twenty in all, addressed the trial either to prejudicial. counsel, or defendant stand, on the were generally provoked Those to addressed counsel were persistent present improper, proper, effort to or exclude principally following evidence; examples. latter. fair purpose develop
“The facts, a trial prevent jury “The it.” court is determined that shall hear the relevant facts in this “We case.” want get at the facts that is what the is entitled to have.” pro-
Those addressed to on the defendant stand were improper apparent voked defendant’s conduct and her disregard rulings inject determination im- proper self-serving following matter. The are fair examples. (defendant) “She was allowed considerable telling story. may latitude in She be cross-examined *3 on it, and she must answer and not tell all about some- thing given else.” benefit denial, “She the and speech that there, is all in and she wants to make a answering Nobody question. about it.” are not “You you question.” asked that “It will be out, stricken be- attempt cause it is a deliberate witness to evade been, question. doing right along, has that She tak- ing up getting of the and the court, time court is pretty up well fed on it.” approving
We must not be
all this.
understood
might
judicial,
it,
least,
Some of
at
been
have
more
but
say
probably
we cannot
that it
influenced the
and
certainly
guilt.
it indicated no
as to defendant’s
Rogers
People,
It does not constitute reversible error.
v.
(2d)
Phenneger
People,
104
P.
594,
453;
Colo.
94
v.
85
People,
983;
35,
Colo.
Pac.
v.
Wilder
86 Colo.
In contention of the that trial showed prejudice upon appropriate it seems to note that prosecuting denial for of a motion a new trial attor- ney previous stated defendant had “no and that record” apply probation that if to for have no she desired “We Advised, her not she counsel that she did objection.” observed then before the court and judge called or had any had never in trouble that she been before a first offender against being criminal and charge acquiesced entitled to probation. prosecutor stated in that if and after sentence the substance reversal, failed of leave prosecuted for would still stand. probation apply as hearsay. objected
2. Certain evidence was later produced far moment any So as was there,” me he was on direct. If “Jones told says, Smith ob admission, over be and its may hearsay pure the stand Jones then takes jection, error. But if was,” no I there and I possible “I told says, Smith can result. prejudice secretary
Defendant was the office assistant Dr. the doctor was absent and C. While for re- G, one Miss came charge presumably pregnant, a Defendant, doctor, acting agreed upon lief. for in cash and a note for fee of paid $100. $50.00 G. S, executed and delivered friend of $50.00 of the Me, an was called to show attorney, attempts ' He “I testified, doctor to collect this note. represented account of his involving Dr. C connection with an S.” in- Suher, from Dr. C. an S testified received bill Colorado, department vestigator pharmacy D, a of a he obtained from Me Exhibit copy testified the latter It states that the doctor had letter from S. S with Me for collec- against left the account $50.00 D, tion, the desire of concerning S. inquires *4 of Dr. activity over shows C objection, admitted for and taken arranged the note defendant collecting the consideration for the operation. as a Its iden- part not but since it was perfect, apparently tification was case, if so tended to establish a link in the and genuine, counsel did not fit to cross- since defendant’s see and fail to detect error. it, we concerning examine here interject that counsel who It seems appropriate represented one of those defendant on the trial was appearing here her. questioned
Defendant was in the office of the attorney. Interrogatories district and were taken answers by stenographer, signed by a transcribed, and defendant. This document, B, Exhibit admitted in evidence. objected ground It was that it not volun on tary question hearing chambers, and on was had presence jury, out of the of the and defendant and other objection Whereupon witnesses examined. was over ruled and Exhibit B It the time admitted. is said that at ill, these statements de were made defendant was counsel, nied incommunicado, held and threatened. She custody May May was taken into 26 and released May The statement is dated 27. She testified in cham discharge bers that several weeks after her she wrote during out in detail her recollection of all that occurred writing, Ex incarceration and examination. This proposed hibit testimony to read from use as and otherwise involuntary or memoranda to char show objection acter of B. An thereto sustained ruling clearly and that correct. Exhibit was self- serving, palpably open objection to the of deliberate composition manufacture, time of its too assuming good remote. Even sity truth its faith no neces appears. for its use far as the So record discloses give defendant could facts as well without it. With exception it contains the sole evidence of the in voluntary exception character of Exhibit B. That is the testimony physician, hypothetically based, to her incapacity. probable phy On the same basis another equally qualified expressed sician, informed, a con trary opinion. It thus admission of Exhibit B rested in the sound discretion of the court and no appears. Furthermore the abuse whole surrounding taking B, of Exhibit circumstances weight given it, to be submitted hence the jury by instruction No. 9.
484 an
A
for the
one Humphreys,
witness
people,
attorney,
propounded
the district
who
investigator
if defendant
B,
in Exhibit
was asked
questions
this crime.”
did
did
“she had committed
say
or
answered,
thereto were overruled
Objections
In
the contention
“She told
that she had.”
support
us
v.
to McKee
that
this
are cited
we
ruling
is not
The
authority
69 Colo.
3. Several errors alleged only attention. One refused, called to our given considered seriously of these to have been Defendant’s re counsel, or is such here. deserving as indispensable instruction No. 3 quested required, Miss that G was finding verdict of guilty, prior the charge fact Instruction No. 1 stated pregnant. then on Miss G “being to commit an abortion conspiracy 6 ad and there a child.” Instruction No. woman with of the in material allegation vised the that every be established a reasonable beyond formation must defined clearly correctly doubt. Instruction No. No. 14 reads in “If part: you Instruction pregnancy. the evidence a reasonable doubt beyond believe from * * * * * * and a mis that was pregnant witness * * * caused sufficient.” or carriage procured case, contested in the questions One of most hotly directed, testimony which most of the and to In the or no very pregnancy pregnancy. the instruction above light fact, of this quoted, seems did not under jurors clearly impossible was one of the material stand that existing pregnancy beyond author doubt. No a reasonable facts to be found ity by prosecution or subject cited, either *6 on this is directly point. in found none defense, and we have Supreme the before However, similar upon rest seems Court of Illinois and its resolution Ry. reasoning, equally applicable & M. here. Ohio sound Porter, Co. v. 92 Ill. no con can be that there
4. Both sides assume pregnancy. spiracy no if there to commit abortion be argument on the evidence The entire of the defense point. is no There to the it effect that failed on pregnancy, hence no con direct evidence of absence of defective, is so flict. The contention is that the evidence opinion upon dependent so and so inconclusive, upon be another, as to one witness based analysis inter here be no evidence. Abstract and would following suffice: minable and futile. The will by days patient “period” passed ten The had accordingly thought pregnant. exam- She was same conclusion ined He reached the Dr. Nelson. specimen certainty her urine but for submitted laboratory report confirmed to Dr. for a test. The Stahl physicians qualifications his The of these conclusion. patient Acting disputed. are not on their decision sought she met de- of Dr. C. At his office services arrangements recited, hereinbefore fendant, made the hospital some kind where she received and was sent to a something relieved of the “ob- of treatment for principal troubling arises her. The confusion struction” dependence report Stahl, of Dr. test, from put upon neither, the fact that Nelson, Dr. practice story. The followed alone, could tell whole by physicians in such cases. Details that usual sug- probability of error or is and no all recited gested. in testified that the odds favor Dr. Nelson physical accuracy and “from a exam- nine to one were pregnant.” plus I think The test, ination, sample Dr. Nelson to Dr. Stahl furnished of urine The test and definitely traced. latter described his stated that “That “positive,” showed occurs preg- “It is not nancy.” infallible.” Whatever possibility error existed was definitely developed by cross-exam- ination.
We think it clear from the that definite foregoing evi- dence of was before the pregnancy jurors. weight thereof for them, not us.
Finding no reversible the record the judg- ment is affirmed.
Mr. Justice Hilliard dissents.
Mr. Justice Hilliard dissenting.
I shall never be convinced that judicial fairness has obtained in trial, the conduct of a where, here, *7 constantly or speaking harshly disparagingly defendant, to or of the and berating and upbraiding counsel in the manner disclosed record. The instances judge’s offending, court quoted and stated “fair there to be opinion, samples” “some such outbursts —neither twenty” worst nor an over- count, as my study convinces —constitute material error It much gravest more import. important, spirit observed, in a free law that a country fair trial be than accorded that conviction be made certain. I regret in the interest of some needed fundamental declara- tions, we have made avail of the writ here.