[1] 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. *Page 4
[2] 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.
[3] 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.