33 Colo. 333 | Colo. | 1905
delivered the opinion of the court.
T, J, Donaldson, having been convicted of the
It appears to us that great latitude was allowed the defendant in his cross-examination of the witnesses for the state. The matters sought to be brought out were not proper on cross-examination, as they had not been the subject of inquiry on direct examination, and did not affect the credibility of the witnesses. The court did not unreasonably curtail the privilege of cross-examination, and no error is shown to have been committed.
The prosecutrix made no complaint of the assaults made apon her until several months after their occurrence, but she stated that the reason she did not make earlier complaint was that her father had threatened to kill her if she told anyone. No error was committed in receiving testimony that the complaint was made and the explanation of the delay, as the jury was properly instructed upon the subject.
The witness, Nellie Light, was permitted to 'testify, over the objection of the defendant, to the fact
“Though the prosecutrix may be asked whether she made complaint of the injury, and when and to whom, and the person to whom she complained is usually called to prove that fact, yet the particular facts which she stated are not admissible in evidence, except when elicited in cross-examination, or by way of confirming her testimony after it has been impeached. On the direct examination, the practice has been merely to ask whether she made complaint that such an outrage had been perpetrated upon her, and to receive only a simple ‘yes’ or ‘no.’ Indeed, the complaint constitutes no part of the res gestae; it is only a fact corroborative of the testimony of the complainant; and, where she is not a witness in the case, it is wholly inadmissible. ’ ’ — 3 Greenleaf on Evidence, § 213.
This is the law as it prevails in nearly all of the states. In a very few of the states the details are held to be admissible, and in Michigan the details of the complaint are held admissible under some circumstances, as where the prosecutrix is of tender years. By the early common law the woman was required to immediately make complaint to some credible person of the injury she had suffered and to afterwards make a charge before a public official. Later, the requirements concerning the making of
The attorney general urges that the defendant’s objection was not such as called to the attention of the court the objection which he now presents. The question of the district attorney was: “Question. During that time state whether, she made any complaint to you in regard to her father. ’ ’ The witness was then asked by the defendant’s attorney if the defendant was present, and the witness said he was not. The following interrogatory was then propounded to the witness: “Q. State what complaint she made of her father.” The defendant objected, upon the ground that it was admitted that the defendant was not present. The objection was overruled. This objection does not call to the attention of the court that the details of the complaint are called for and that such details are inadmissible. If the objection which is now made had been made at the trial, the court would have been compelled to sustain the objection; and we must now hold that although the testimony of the witness was not admissible, that the
Instruction No. 10, given by the court, is as follows: “There is no evidence in this case of a conspiracy to prosecute the defendant upon this charge, and you should wholly disregard any statements made by counsel in the opening of this case, that evidence would be introduced in support of such a theory. ’ ’
In support of the charge that a conspiracy existed to convict the defendant, the counsel have made a summary of the testimony. Therein it is stated -that the city marshal, John A. Place, made the complaint against the defendant; that he had frequent interviews with the prosecutrix; that he gave her presents of nuts and candy and theater tickets; that Evalina Smith had won the friendship of the girl; that the mother of the prosecutrix forbade visits to Mrs. Smith; that prosecutrix and her mother had a dispute a few hours before the arrest of defendant, about a dress, and that prosecutrix threatened, if not pennittted to have her way, to leave home and disgrace the whole family; that within a few hours thereafter, defendant and his wife were both placed under arrest upon the complaint of Place, charged with incest; that Place verified all the complaints; that he threatened the mother subsequent to the arrest of the father that if she did not assist in the prosecution of the father, she would be placed under arrest; that after the arrest of the defendant, the prosecutrix was placed in the custody of Evalina Smith and kept there until after the preliminary examination, when she was removed to Denver ; that the mother was not permitted to see her; that on July 16, 1903, while the mother of prosecutrix and the daughter Iva were at the office of the Humane Society, Tva was seized by the agents of the
The court very properly held that there was no evidence of conspiracy. The evidence relied upon does not tend to show that the officers and others agreed to procure the conviction of the defendant by unlawful means. The summary shows that the court did not restrict the scope of the examination of witnesses to such extent as to warrant us in reversing the case for that reason.
During the examination of Mrs. Donaldson, wife of the defendant, the only witness examined at any length by the defendant, the court, in passing upon an objection by the district attorney, said:
“The court will allow you to show relations of sociability, familiarity, friendliness, and other acts of attention upon the part of Place to the witness, Violet; it is done according to your theory of the ease. You contend the man Place had undue influence over the girl; for the purpose of throwing light upon the conditions, you will be allowed to show the relations that existed between Place and the girl. ’ ’
Under this ruling, the testimony which the defendant claims should have gone to the jury in support of his charge of conspiracy was received, and the jury considered it under proper instructions. The theory upon which it was received was that it
The witness, Violet Donaldson, a child about fourteen years of age, testified positively that the defendant, her father, had sexual intercourse with her on several occasions. The jury believed her.
As no error was committed by the court, the judgment is affirmed.
Affirmed.