30 Colo. 265 | Colo. | 1902
delivered the opinion of the court.
The defendant was convicted of the crime of rape, and sentenced accordingly. There are some contradictions in the testimony of the three girls, the principal witnesses for the prosecution, probably due, in part at least, to their youth and inexperience; but in that portion relating to the commission of the crime there is no serious conflict. Prom a careful examination of the.evidence, we are satisfied that it is sufficient to sustain the verdict. Indeed, counsel for plaintiff in error do not seriously contend for a reversal upon the ground of a lack of evidence. Their chief reliance is based upon alleged improper remarks of the assistant district attorney in his closing speech to the jury. In substance it is alleged, in an affidavit of one of defendant’s counsel in support of a motion for a new trial, that this officer commented upon the fact that defendant’ did not call witnesses to testify to his good reputation and standing in the copamunity; that he referred to the defendant as “this thing, beast and brute,” and that he stated
It is further stated that this officer of the state told the jury that Mr. Thomas Ward, one' of defendant’s counsel, had become ashamed of the case and for that reason had skulked away from the court, and that Mr. Ralph Talbot, another of his counsel, had also skulked away, because he was ashamed of it, and that the latter, who had practiced for thirty years at the bar and stood well in his profession ought to be ashamed of himself for defending such a beast as defendant, and the fact that such counsel had been assigned by the court was no excuse for it; and when defendant’s counsel attempted to state to the court, to the jury, or to the deputy district attorney, that Mr. Ward at the time was in trial of a case in the county court, and tried to object to other improper remarks, the prosecutor would raise his voice, and give no opportunity either for objections to be made or exceptions to be taken. Counsel assert that all these acts of gross impropriety were done without any instructions being given to the jury by the court to disregard them, without any rebuke being directed to the attorney guilty of such misconduct, and without any eaution to the jury not to be swayed thereby in arriving at their verdict.
That some of the language of the representative of the state, in addressing the jury, was improper, we have not the slightest doubt. For some, ample justification is found in the evidence of unusually brutal acts said to have been committed by defendant which, in the interests of common decency, ought not to be here recounted. If the jury believed the story of the girls, under the age of consent, then no invective by
While this rebuke and caution might have been more emphatic and pronounced, we think, in the circumstances of the case, it was sufficient to remove from the minds of the jury any improper impression which such language was calculated to produce. Moreover, counsel for defendant seems to have been satisfied with it, and made no request of the court then, or at any other time, further to instruct the jury to disregard it.
We find nowhere in the record that any specific objection was interposed to the comment said to have been made by the deputy district! attorney upon defendant’s failure to prove' good character, and we look in vain to the affidavit and to the record to see what such comment was. In the-absence of a show
It must not be inferred that we believe that learned counsel for defendant purposely remained silent and interposed no appropriate or seasonable objection to the misconduct complained of, with a view to springing the objection in case of an unfavorable verdict; but we are quite clear that he should not have contented himself merely by engaging with opposing counsel in an unequal vocal contest. He should, rather, have addressed himself to the court for appropriate relief, and not have remained satisfied with his unsuccessful attempt to drown the voice of the prosecutor.
The court did not refuse to rule, when appealed to; on the contrary, in its opinion overruling the motion for a new trial, the court said that the only time objection was made the deputy district attorney was stopped in his speech, and the admonition and rebuke given to which reference has been made; and thereafter there was no repetition by him of any act of impropriety, or any further objection made by defendant’s counsel.
The attorney general argues that where, as here, an examination of the record will show that no other verdict ought to have been given, it should not be
The judgment should, therefore, be affirmed.
Affirmed.