Koontz v. the People , 82 Colo. 589 ( 1927 )

In the petition for rehearing, counsel say: "This Honorable Court concedes that this defendant did not have a fair and impartial trial under the ruling in the Eby case, and has held that error of such a highly prejudicial character was committed by the trial judge as to justify a reversal of this case, yet, has sustained such conviction for purely technical reasons which do not concern the guilt or innocence of the defendant. It is based rather upon the supposed failure of his counsel to find more apt language to present his cause to the trial court. This defendant is to be punished by confinement in the state penitentiary for a period of from five to seven years, not because of the fact that he has had a fair and impartial trial, but rather because in the opinion of this court, his counsel might have used more explicit and technical words with which to point out the particulars in which the substantial rights of the defendant were being encroached upon."

Counsel are in error. We did not "concede," or even intimate, that under the ruling in the Eby case, or otherwise, the defendant did not have a fair and impartial trial; nor did we hold that prejudicial error was committed at the trial. We said that the objection argued is similar to the one passed upon in the Eby case, but that, because of the defendant's failure to comply with rule 7 of this court, such objection would not be considered on review. In the Eby case, the defendant was charged with having sexual intercourse with a girl 15 years old at the Gould house on March 27. The girl denied positively that the defendant had intercourse with her at that place and time, but testified that he did have intercourse with her on another occasion, namely, at a rooming house in Victor about a week prior to March 27. There was only weak and inconclusive circumstantial evidence concerning the commission of the offense charged; whereas, there was positive testimony that the defendant committed the act on another occasion, not charged in the information and for which he was not on trial. We held that "under the peculiar circumstances disclosed," the instruction should have been omitted, and that other instructions correctly stating the time and place charged, and directing the jury not to convict of an offense not charged, did not remedy the matter. In that case, there is every probability that by the girl's positive testimony that the defendant had intercourse with her on an occasion not charged in the information, and her equally positive denial that the defendant had intercourse with her on the occasion charged, the jury was misled into finding the defendant guilty of the offense on that other occasion, and not on the occasion charged. No such situation is presented here. The prosecuting witness testified positively and in disgusting detail to the commission of the offense on the occasion charged in the information. The testimony in contradiction is that of the defendant and the members of his family. They testified that the prosecuting witness was not at the defendant's home at the time the prosecuting witness claims the offense was committed there. They testified that part of the time the defendant himself was at church, and that part of the time he was at a moving picture show. Not one witness unrelated to the defendant testified to these matters, though it is fair to assume that had the defendant been where he is said to have been, some person not related to him would have noticed his presence there, and would have been subpoenaed to testify to that fact.

There exists another important distinction between the Eby case and this one. In that case, there was no confusion as to the exact date of the occasion; the offense charged was committed on the 27th day of March, or it was not committed at all. In the present case, the prosecuting witness testified that he went to the defendant's home in the evening of Saturday, the 14th day of February, and that the offense charged was committed after midnight. The calendar in evidence shows that Saturday was the 13th, not the 14th. If the prosecuting witness was right in saying that he went on Saturday evening, the offense was committed on the 14th. If, on the other hand, he was right in saying that he went on the 14th, the offense was committed on the 15th. Within the range of two days, therefore, time was immaterial; the jury could return a verdict of guilty if it found that the defendant had committed the offense on either the 14th or the 15th. The instruction had no application whatever to the facts in the Eby case, but it has some application to the facts in this case. If counsel had called the trial court's attention to the exact matter now presented, that court could have limited the range of the instruction to the two days in question.

The trial court instructed the jury that the defendant is charged with the commission of the offense on February 14, 1926; that if the jury does not find the defendant guilty "as charged," it should return a verdict of not guilty; that if the jury finds from the evidence, beyond a reasonable doubt, that on February 14, 1926, the defendant committed the offense, etc., it should find him guilty "as charged"; otherwise, it should find him not guilty. The court also instructed the jury with reference to the purpose of the evidence concerning other transactions; cautioned the jury to consider such evidence for that purpose, and for no other; and warned the jury that "the defendant cannot be tried for or convicted of any offense not charged in the information." Under the facts in this case, as distinguished from the facts in the Eby case, it is not likely that the jury was misled into finding the defendant guilty because of a belief that although the defendant did not commit the offense on the occasion charged in the information, he did commit it on another occasion. We are satisfied that in the circumstances of this case, the error, if any, in giving instruction No. 3 did not prejudice the substantial rights of the defendant. C.L., sec. 7103. We have examined the transcript of the record, and believe that the verdict and judgment are manifestly correct. In Balfe v. People,66 Colo. 94, 97, 179 P. 137, we said that in such circumstances, technical errors are not ground for reversal. In May v. People, 77 Colo. 432, 435, 236 P. 1022, Mr. Justice Sheafor, delivering the opinion of the court, said, "Where one knowingly and willfully violates the law, and his guilt is clearly proven, he cannot successfully rely for a reversal on technical errors occurring during the trial." See also, Gizewski v. People, 78 Colo. 123,239 P. 1026; Henry v. People, 72 Colo. 5, 209 P. 511;Fries v. People, 80 Colo. 430, 252 P. 341; Wechter v.People, 53 Colo. 89, 124 P. 183; Hillen v. People,59 Colo. 280, 149 P. 250.

In the present case, substantial justice has been done. Whether our decision is based upon the failure of defendant to comply with our rule 7, or upon the reasons here given, the result is the same. The judgment of the trial court was properly affirmed.

The application for a rehearing is denied.