44 Colo. 403 | Colo. | 1908
delivered tlie opinion of the court:
The information under which defendant was tried and convicted was drawn under a statute published in the Session Laws of 1891, page 128, § 1321, 3 Mills’ Ann. Stats., and charges that defendant, being her brother, lewdly and lasciviously cohabited with one Mae Kingsbury, and did commit fornication with her, she being his own sister by the whole blood.
2. The point that the court permitted a witness for the people on rebuttal to testify to an admission by defendant of his guilt, is not good. The order of proof rests largely in the discretion of the trial court, and its acts in that respect will not be disturbed except in case of abuse. There was no abuse of discretion in this case. Defendant had full opportunity to meet this testimony, but failed to do so. There was other and sufficient evidence of the corpus delicti.
3. That the court instructed the jury orally is not available to defendant as a ground for reversal.He gave his consent thereto: The further point that the instructions were not afterwards reduced to writing and given to the jury is not borne out by the record.
5. The only important question arises out of the admission in evidence by the trial court of certain letters produced by the prosecution. To a full understanding of the objection to their reception it should be said that before the trial defendant made certain statements to the deputy district attorney concerning the charge against him, which in his presence were reduced to writing and afterwards signed by him. In this statement, which was in evidence on the trial — and no objection to its admission is urged upon this review — defendant stated that Mae Kings-bury was not his sister, but was a daughter of his step-father before the latter’s marriage to defendant’s mother; and he further stated that he had not been in the state of Iowa for several years before April, 1904. The deputy at the time was in possession of several letters written by former neighbors of defendant, who lived in Iowa, in which they stated that defendant and Mae Kingsbury were brother and sister, and that he had been in the state of Iowa for some time immediately before the day mentioned. These letters were then shown to defendant and he was asked if, in view of the statements therein contained, he still insisted that Mae Kingsbury was not his sister. Whereupon, and- with an opportunity to reply and explain, he did not make any denial of the statements in the letters, but evasively replied, “You wait and see. ■ My people are Mormons and you don’t understand about this.” We think the admission of these letters was within the rule laid down in 1 Greenl. Ev. § 215. The statements therein contained wei;e damaging to defendant and inconsistent with his written statement to the prosecuting officer.. It was for the jury to determine whether or not the
There is no merit in any of the assignments. The evidence is legally sufficient to uphold the verdict. The judgment is therefore affirmed.
Affirmed.
Mr. Justice Gabbert and Mr. Justice Bailey concur.