Summary
In Manship v. People, 99 Colo. 1, 58 P.2d 1215, our court held that a properly certified copy of a birth record is admissible in evidence in a criminal case.
Summary of this case from Trujillo v. PeopleOpinion
No. 13,734.
Decided June 1, 1936. Rehearing denied June 29, 1936.
Plaintiff in error was found guilty of statutory rape.
Affirmed.
1. CRIMINAL LAW — Severance. One of two defendants in a criminal case moved for a separate trial, and the court, holding that such a motion could properly be interposed only at the time of, and not before, the trial on the merits, overruled the motion. The motion was not subsequently renewed, and in these circumstances it is held on review that the defendant could not successfully assign the ruling as a ground for reversal of the judgment of conviction.
2. Severance — Evidence. Unless the bill of exceptions in a criminal case discloses the admission of evidence prejudicial to the complaining defendant, there is no error in the denial of his motion for a severance.
3. Appeal and Error — Sufficiency of Evidence. Judgment of the trial court will not be disturbed on the ground of insufficiency of the evidence to sustain the charge, where there was no error in its rulings upon the admission of evidence which tends to sustain the conviction.
4. EVIDENCE — Birth Certificate. The admission in evidence, over objection, of a birth certificate which is not officially certified or properly authenticated, is error.
5. Person's Age. The date of a person's birth may be testified to by members of his family.
6. Birth Certificate. Action of the trial court in excluding from the evidence a certified copy of a birth certificate on the ground that the attending physician's original certificate was not filed with the registrar of vital statistics within the ten-day limit fixed by C. L. § 982, held erroneous, such a copy being prima facie evidence of the facts therein stated.
7. Marriage Record — Copy. A certified copy of a marriage record is evidence of the marriage.
8. CRIMINAL LAW — Rape — Age of Prosecutrix — Evidence. In a prosecution for statutory rape, oral evidence of the age of the prosecuting witness having been admitted, and no evidence offered in contradiction thereof, it is held on review that the erroneous admission of an uncertified certificate of her birth did not constitute prejudicial error and was not a ground for reversal of the judgment of conviction.
9. INSTRUCTIONS — Requests — Appeal and Error. Refusal of the trial court to give a requested instruction does not constitute error where the point involved is sufficiently covered in the court's instructions.
10. Requests. Where a requested instruction contains two or more propositions of law, and one of them is unsound, the court may properly refuse to give the instruction.
11. CRIMINAL LAW — Rape — Instructions. An instruction in a statutory rape case concerning the age of the prosecutrix, if erroneous, held, in view of the record, not to have prejudiced the substantial rights of defendant, and not to constitute a ground for reversal.
12. Trial — Misconduct of Prosecutor. Objection based on alleged misconduct of the district attorney in the trial of a criminal case comes too late where it is not made until the filing of a motion for a new trial. In the instant case, the alleged misconduct being examination of jurors on voir dire concerning "jury tampering" in connection with the trial, the objection is held devoid of merit.
Error to the District Court of the City and County of Denver, Hon. Henley A. Calvert, Judge.
Mr. JOHN J. MORRISSEY, Mr. WILLIAM H. SCOFIELD, for plaintiff in error.
Mr. PAUL P. PROSSER, Attorney General, Mr. WALTER F. SCHERER, Assistant, for the people.
The information in this case charges the defendants Manship and Vera Brinkerhoff with the statutory crime of rape of Dora Shelton. Each defendant was found guilty. In the opening brief of the plaintiff in error Manship are set forth the various grounds in which the trial court is said to have committed errors prejudicial to him. He is the only plaintiff in error. In passing upon his motion for a separate trial for himself alone, which was interposed sometime before trial on the merits, the trial court said that such a motion properly arises at, and not before, trial on the merits and upon that ground alone denied the defendant's motion. At the trial on the merits defendant did not interpose or renew his motion for a separate trial which he might have done as the trial court had theretofore held was permissible. Under the facts above outlined the defendant may not now upon this review be heard to complain of the refusal of the trial court to grant him a separate trial.
In addition to the foregoing we say that under the rule announced in Kolkman v. People, 89 Colo. 8, 300 Pac. 575, the trial court's denial of the severance in this case is not erroneous. We said in that case unless the bill of exceptions discloses the admission of prejudicial evidence no error is committed in denying a motion for a severance. Applying that doctrine to this case we say there is not disclosed improper admission of evidence prejudicial to plaintiff in error. Stone v. People, 71 Colo. 162, 204 Pac. 897, and Sarno v. People, 74 Colo. 528, 535, 223 Pac. 41, are in point and are authority for the rulings of the trial court in the pending case.
There is vigorous discussion by counsel for Manship of the evidence produced at the trial with a view to show its alleged insufficiency to establish Manship's guilt. As is usually true in cases of this character, not all of the evidence produced at this trial is favorable to either party. We find no errors in the rulings of the trial court upon the evidence. The trial court found it legally sufficient to sustain the charge and imposed appropriate sentence. We do not deem it necessary to reproduce the unsavory evidence. It tends to sustain the charge. The trial court was in better position than we are upon this review to determine the credibility of the witnesses.
The judgment is affirmed.
MR. JUSTICE HILLIARD and MR. JUSTICE HOLLAND dissent.