Opinion
No. 17,344.
Decided October 4, 1954.
Plaintiff in error was charged with rape, and upon arraignment, his sole plea was, "Not guilty by reason of insanity at the time of the alleged commission of the crime and since. Upon trial, the jury found him to be sane, and thereupon he was sentenced to serve a term in the state penitentiary.
Reversed.
1. CRIMINAL LAW — Evidence — Hearsay — Appeal and Error. "Upon a prosecution for rape, the testimony of a physician, called as a witness for the people, being hearsay, it is held on review that its admission in evidence constituted reversible error.
2. Rape — Pleas. In a prosecution for rape, defendant, on arraignment, entered a sole plea of, "not guilty by reason of insanity at the time of the alleged commission of the crime and since." One review, the Supreme Court states: "In view of the peculiar circumstances evidenced by this record and the seriousness of the charge, we suggest that, on a retrial, defendant be permitted to enter the additional plea of 'not guilty' and that a trial be had thereon."
Error to the District Court of Pueblo County, Hon. Harry Leddy, Judge.
Mr. JOHN M. SANDOR, for plaintiff in error.
Mr. DUKE W. DUNBAR, Attorney General, Mr. FRANK A. WACHOB, Deputy, Mr. NORMAN H. COMSTOCK, Assistant, for the People.
ROY BAUMAN was charged with the crime of rape, and, upon arraignment, his sole plea was, "Not guilty by reason of insanity at the time of the alleged commission of the crime and since." Upon trial on this plea by the jury it found him to be sane, and, after the overruling of his motion for a new trial, he was sentenced to serve a term in the penitentiary.
The motion for a new trial was based on only two alleged errors committed by the trial court, and these are: 1. A statement of the District Attorney was prejudicial to defendant; and 2, the admission in evidence of a doctor's testimony. We will discuss these in the order mentioned.
1. The record discloses that an objection was made and sustained to a statement made by the District Attorney in his argument to the jury, and that the trial court then instructed the jury to disregard the statement so made. It is presumed that the jury followed the court's instruction.
2. Mr. Kettelkamp was the District Attorney who prosecuted the case, and Mr. Stewart was one of defendant's counsel. During the direct examination of a psychiatrist called by the People, the following occurred:
"Q. Were you at the staff meeting, Doctor? A. Yes, I presented the case at staff for consideration of everyone. Q. How many doctors sat on the staff? A. Well, it is a little hard to say just who were there. Q. Approximately. A. I have — I don't know. I don't think I can answer. Q. Well, you can give us an approximation."
"Mr. Stewart: If the Court please, we object to that." "The Court" If he doesn't know, it doesn't make any difference. * * * I think the objection is good. He finds it pretty hard to say who was there. Q. (By Mr. Kettelkamp) Are there more than five doctors? A. Yes. Q. Were you the doctor who presented this man's case history? A. I am. Q. What was the result of the staff meeting? A. It was the staff decision that he was legally same.
* * *
"Mr. Stewart: I move to strike that last as hearsay evidence, not proper evidence about the staff.
"The Court: You say it is hearsay evidence when he was there?
"Mr. Stewart: Yes, it is what somebody else did.
"The Court: Objection overruled.
"Mr. Stewart: All right. Note an exception." (Italics ours)
The Attorney General frankly admits that it is impossible for him to distinguish this case from that of Carter v. People, 119 Colo. 342, 204 P.2d 147, wherein our Court held that the admission of testimony, practically identical with that admitted in the instant case, was reversible error. Upon authority of our decision in that case, we hold that he judgment herein must be reversed.
We note from the record that after the trial of defendant on the insanity plea he became dissatisfied with the services of the attorneys who were retained by his relatives, and they were permitted to withdraw. The attorney who then appeared for defendant requested, among other things, that defendant be permitted to add to his plea one of "not guilty," which request was denied. The attorney representing defendant had nothing to do with the trial of the case in the district court, his first appearance being in this Court, In view of the peculiar circumstances evidenced by this record and the seriousness of the charge, we suggest that, on a retrial, defendant be permitted to enter the additional plea of "not guilty" and that a trial be had thereon.
The admission of the evidence hereinbefore quoted under the second ground of the motion for new trial was prejudicial error; accordingly, the judgment is reversed and the case remanded to the district court for further proceedings in harmony with the views herein expressed.
MR. JUSTICE HOLLAND and MR. JUSTICE BRADFIELD concur in the result.