PLAINTIFF in error, hereinafter referred to as defendant, was convicted of statutory rape and received a sentence of from ten to twenty years in the penitentiary. To review that judgment he prosecutes this writ and assigns nine alleged errors which may thus be summarized: 1. Challenge to the array should have been sustained; 2. the jury was professional and prejudiced; 3. examination of defendant was improperly limited; 4. cross-examination of defendant's wife was improperly limited; 5. defendant's instruction No. 1 should have been given; 6. the court's instruction No. 7 should have been refused; 7. the district attorney indulged in an improper and prejudicial argument; 8. the verdict was unsupported *Page 514 by the evidence; 9. the juror Nelson was disqualified by statute.
The offense charged was committed October 12, 1942, the information was filed November 10 following, and upon a showing of defendant's indigence counsel here appearing was appointed to represent him. November 16, 1942, defendant was arraigned, pleaded not guilty and not guilty by reason of insanity, and was committed to the state hospital at Pueblo for thirty day's observation, two physicians being designated to examine him and report. April 12, 1943 the regular panel being exhausted, a special venire for twenty jurors was issued and served as ordered. April 19 following, the venire was filed and from the twenty so summoned the jury was thereafter selected. The case was thereupon set for trial April 28. On that day the information was amended as per notice previously given. Defendant withdrew his plea of insanity and moved to quash the panel. That motion was overruled and the cause proceeded to trial. The following day the trial was completed, the jury instructed, the cause argued, and the jurors retired and returned with a verdict of guilty. May 24 following, defendant's motion for a new trial was filed with supporting affidavits. June 1, the motion was argued and taken under advisement, and one week later it was denied and defendant sentenced. At the same time the trial judge made and entered findings of fact relative to various jurors.
Defendant was a married man living with his wife and four small children, the eldest being a daughter eleven years old. It was charged, and the state's evidence showed, that the offense was committed with this little girl — not once, but repeatedly — and that discovery occurred because he had infected her with gonorrhea from which disease he admitted he was suffering.
[1] 1. The panel was challenged because its members had been summoned on open venire. The statutory procedure governing the selection of jurors is to be *Page 515 found in chapter 95, '35 C.S.A. However, section 45 thereof reads: "Nothing in this subdivision contained shall be held to deprive any court of the power to cause a jury to be summoned by open venire as is provided by law." Sections 14 and 17, id., contain further provisions relating thereto. Following these, numerous cases in this jurisdiction are cited which need not here be repeated. Therefrom it appears that the procedure herein followed was in all respects regular and has been repeatedly approved by this court. Nothing further need be added. The assignment is unsupported.
[2] 2. It is contended that some of these jurors were "professional" and that the presumption should be indulged that they were prejudiced. Such information as we have on this subject is obtained from the affidavits filed in support of the motion for a new trial, from those filed in opposition thereto, and from the findings of the court above referred to. Taken together they wholly fail to support the assignment. Much of the information contained in the supporting affidavits is immaterial, i. e., that some of the jurors had served once or more within a given period prior to the year prescribed by the statute, that some of the jurors had served within that period and were excused for cause; that one juror summoned was a deputy sheriff and was excused peremptorily; that one juror who served was a gunsmith frequently employed by the police officers; etc. There is no suggestion that counsel for defendant made an inquiry, on voir dire, of any of the jurors as to service in other cases, save by the general question as to whether they had served within one year. Had he been seriously concerned further inquiry would have disclosed the facts and objectionable jurors could have been disposed of by unused peremptory challenges. Add to the foregoing that it does not appear that defendant was prejudiced, and that all these matters rested in the sound discretion of the trial judge, and we are *Page 516 forced to the conclusion that this assignment is without merit.
[3] 3. Complaint is made because counsel for defendant was not permitted to interrogate him as to what intercourse, if any, he had indulged in during a given period with anyone other than his wife. This for the alleged purpose of disclosing the source of his infection. The court was not concerned, nor are we, with the source of defendant's infection. The only proper inquiry was as to the source of infection of the prosecuting witness.
[4] 4. Defendant's wife was called as a witness for the state and on cross-examination his counsel sought to interrogate her as to her own personal misconduct with other men. The subject was entirely unrelated to any issue in the case and wholly unconnected with the credibility of the witness. Objections thereto were properly sustained. Moreover, it appears that the information sought, so far as it could be said to pertain to any proper inquiry, was given. Otherwise the questions were not specific and the court in sustaining the objections gave leave to counsel to recall the witness for further cross-examination if he so desired. No possible prejudice appears.
[5] 5. Defendant requested the giving of his instruction No. 1 which was refused. It related to alleged contradictory statements made by a witness. In lieu thereof the court gave instruction No. 7 on the same subject and in substance identical, hence no error appears.
6. Instruction No. 7 contains nothing not covered by defendant's request above mentioned and fairly states the law. It was properly given.
[6] 7. Our knowledge of this assignment is gathered solely from the affidavits, since the arguments of counsel do not appear in the transcript. One Bruce, chief of police in Colorado Springs, had testified for the people, and some of his testimony had been contradicted by defendant whose counsel argued that because of the official *Page 517 position of Bruce, and the large number of cases he handled, his memory should not be trusted, and in answer thereto the district attorney stated, "in effect that said witness was a true, fair man, based upon the experience of the district attorney with said witness." It will be observed that "in effect" destroys any value which this affidavit might otherwise have on the subject. Counsel might at the time have had this portion of the argument taken by the reporter. He did not. As it stands in the record there are four answers to the objection: First, the argument of counsel for defendant was, strictly speaking, improper; second, the statement of the district attorney was a proper answer thereto; third, just what was said and its probable effect upon the jury was for the discretion of the trial court; fourth, the matter seems trivial and without prejudice.
[7] 8. The testimony of the prosecuting witness was positive and unequivocal. In material points it is corroborated by other witnesses, particularly by defendant's wife. In some, and especially as to the actual commission of the offense, it is positively contradicted by defendant. The question was solely one for the jurors. They have resolved it and that resolution met the approval of the trial judge as is evidenced by the overruling of a motion for a new trial. The question therefore is not within our province. That there are minor discrepancies in the evidence of some of these witnesses can not be questioned, but they are such as appear in almost every closely contested case, and particularly as to dates and hours and movements of which naturally no records were kept, and doubly so where, as here, the adult witnesses were, to say the least, not above the average of intelligence, and important facts were testified to by others of immature years. The jurors and the judge saw and heard them. They well knew where credence should be given and where withheld. We have no such advantage and must say that the evidence amply supports the verdict. *Page 518
[8-13] 9. We come now to the most important question raised on the motion for a new trial and under the assignments. To some of the Justices, including the writer, it seems simple and the assignment wholly without merit. To others, perhaps better qualified to speak, it appears well supported and absolutely vital. "The fact that any person summoned in any way to serve as a juror in any district or county court shall have served as a juror in either of said courts, at any prior term, within one year next preceding, shall be a sufficient excuse for such person from service, and may also be a ground for challenge for cause to such individual summoned." '35 C.S.A, vol. 3, p. 1116, § 53. On voir dire counsel for defendant asked the general question of the jurors (including Nelson) as to whether any of them had so served, and requested if they had to so indicate by raising their hands. At least one juror so indicated and was excused. Another indicated doubt and, upon being checked by the clerk, it was discovered he had not. The juror Nelson gave no indication and was retained and acted as foreman. Thereafter, and prior to the filing of a motion for a new trial, it was discovered that on July 7, 1942, at the May, 1942 term of said court, Nelson had so served and acted as foreman of the jury in a civil case. All this appears from the supporting affidavits of the motion for a new trial. There was also filed the affidavit of Nelson stating that when he was so examined he was "fully convinced in his own mind that he had not served on the jury within the past year." He also stated that he was unacquainted with the defendant, that he knew nothing of the facts, had no desire to serve, and was wholly unbiased and unprejudiced. Motion for a new trial was overruled and this service of Nelson, which it is contended was in violation of said statute, now constitutes the principal reason urged why this court should find prejudicial error and reverse the judgment. If there is a positive statute which compels such a result we are powerless, *Page 519 but certainly the lawmakers are not, and should amend the act before it again puts the stamp of approval upon such a technical miscarriage of justice. If we have heretofore approved such an interpretation, and now have the power to do so, we should reverse that ruling. If we have not, but other jurisdictions have, we are not bound thereby and should refuse to follow them unless their decisions rest upon the soundest reason. Our position is that there is no such statute, that we have never decided that there is, and that no court has so decided in any case supported by reason. Let us see.
It will be observed that the statute first provides that service within the preceding year "shall be a sufficient excuse for such person from service." By that phrase the juror may claim his discharge, or the court in its discretion may excuse him. Certainly his service is not forbidden and with that phrase defendant has no concern. The sole remaining provision is that such service"may also be the ground for challenge for cause." That phrase does not forbid the juror's service. It may simply be taken advantage of by either party. Here it should constantly be borne in mind that defendant had ten peremptory challenges of which he exercised but four. He could therefore have excused Nelson or any other juror in the box. True, he did not know of Nelson's prior service, but the fact that he used no peremptory challenge on Nelson is proof positive that he had no objection to him but then believed he would make a fair and capable juror, and so far as disclosed by the record he did exactly that. There is no indication that had defendant then known of Nelson's prior service he would have discharged him for cause, otherwise he would have exercised his right to do so without cause. Hence we have this situation: Defendant wished Nelson to serve, and if fully informed he would not have used against him a known statutory cause. Nelson then presumably, and as the trial disclosed, and as the trial judge was convinced, a capable, fair and impartial juror, *Page 520 became objectionable only when at the close of the trial defendant learned that Nelson had voted for his conviction. Does that call for a reversal? Under a well established rule, unquestioned and constantly followed, it does not unless defendant was prejudiced by the error. That he could not have been we think the foregoing clearly demonstrates.
All authorities uphold the absolute right of a party to the use of all peremptory challenges granted him by statute and hold that any frustration thereof, whether by erroneous ruling, false information, or concealment, constitutes reversible error, because the jury so forced upon the litigant is not a statutory tribunal. These can have no application to a case in which a fair and impartial juror might have been, but need not be, excused for cause, and whom the party complaining did not wish, as in the instant case, to challenge peremptorily. Quite generally courts distinguish between challenges propter affectum, those relating to a juror's bias, prejudice, interest, etc., and challenges propter defectum, those relating to the absence of some purely statutory qualification such as residence, citizenship, property owning, taxpaying, etc.; holding that disregard of the former constitutes reversible error, of the latter not. Also that in case of the former, prejudice to the litigant may be assumed, in the latter, it must be shown. Exceptions to this rule are not wanting, but these rest generally upon special facts and are supported by sound reason. 39 Am. Jur., p. 60, § 40; 16 C. J., p. 1162, § 2649; 23 C. J. S., p. 1169, § 1446; State v. Patterson,183 Wash. 239, 48 P.2d 193; Williams v. United States,3 F.2d 933; Leeper v. State, 29 Tex. App. 63,14 S.W. 398.
It would be futile to diagnose and distinguish the numerous authorities cited by counsel for defendant in support of his position. Many of them are clearly not in point and others so readily distinguishable as to justify no comment. We take for illustration two on which he most strongly relies: Denver Tramway Co. v. Kennedy, *Page 521 50 Colo. 418, 117 P. 167; Endowment Rank ofOrder of K. P. v. Steele, 107 Tenn. 1, 63 S.W. 1126. In the Denver Tramway case the juror Black was challenged peremptorily and defendant used all his challenges hence the overruling of the challenge to Black for cause defrauded him of his statutory limit. Some language is found on page 423 which indicates that the contention made here by defendant would be sound. So far it is pure dictum. It is quite evident from the remainder of the opinion that the sole ground of reversal was defendant's deprivation of his statutory number of peremptory challenges. Had defendant in the instant case challenged the juror Nelson peremptorily and thereafter exhausted all his challenges, he would be entitled to the presumption that an objectionable juror, whom he was entitled to challenge for cause, had been forced upon him and thus one of his statutory peremptory challenges had been taken from him. He would then be within the rule in the Denver Tramway case, so far a sound rule based upon good reasoning.
The Endowment case, supra, likewise contains some language which, standing alone, might justify the inference drawn. But, considered as a whole, we think the contrary is true. It does not appear therein whether counsel had exhausted their peremptory challenges. The presumption is justified that they had. In any event three jurors were involved, all of whom had answered falsely. The court recognizes the general rule above mentioned, but makes an exception in that case. The real reason given is that the jurors were otherwise probably unfit. They were apparently anxious to serve. After verdict they engaged in a drinking bout with plaintiff's brother who managed his case. The court says it is "more than doubtful whether these jurors were such fair and impartial persons as the parties had a right to demand, and upon this ground, also, the judgment of the court below must be reversed." If it was the court's intention to go further than this indicated *Page 522 then this is the only case cited supporting the position of the defendant here and no reason whatever, good or bad, is given to uphold it.
In some respects Shulinsky v. Boston Maine R. R.Co., 83 N.H. 86, 139 A. 189, might give even stronger support to inferences drawn for defendant than the others just cited. But upon careful examination it turns out to be worse because there the false information given prevented a party from exercising a peremptory challenge and so it falls clearly within the rule above cited and herein relied upon.
One other inference should be disposed of, i. e., that Nelson's concealment of service, or false answer, was intentional, prompted by a desire to serve, and hence indicating bias and prejudice. That question was, of course, one peculiarly for the trial judge. He presided on the voir dire examination; saw and heard the juror and was cognizant of all the circumstances. His denial of the motion for a new trial evidences his finding that Nelson indulged in no deliberate deception. In this he is supported by the record and his resolution is binding here.
It should here be observed that if the situation in El Paso county was anything like as bad as the defendant would have us believe, some hint of it must have reached defendant's counsel. If not, the appearance of a deputy sheriff on the panel should have warned him. In any event ten days elapsed between the time of the return of the special venire and the beginning of the trial. Its importance and the length of time thus allowed certainly justified some investigation of this special venire and it would have required little effort to disclose this and all the similar objections urged on the motion for a new trial, and here, if in fact they had merit.
For the first time, apparently, the exact question here dealt with is squarely before this court. In disposing of it we should not be in the least misled by loose language *Page 523 or false reasoning in the decisions of other jurisdictions or the works of the text writers. Our duty is to construe our statute as it is written and according to the apparent intent of the Legislature. Nor are we permitted to indulge the presumption that one of its purposes was to furnish a loophole through which a felon, after a fair trial and a verdict of guilty, might make his escape. We will avoid such a construction by giving due consideration to the following wise observations of one of our ablest judges:
"What is the plain common sense of the matter? Common sense and the courts are not strangers; indeed, the relations between them usually are, and always should be, intimate and cordial. * * * Our Legislature repeatedly has endeavored to make it plain that, in both criminal and civil procedure, substance, not form, is the controlling consideration. * * * It does not appear that by the error of the trial court the defendant's substantial rights were prejudiced in the slightest degree." Special concurring opinion of Mr. Justice Butler in Waite v.People, 83 Colo. 162, 262 P. 1009.
We will also do well, in cases such as the present, to bear in mind the admonition of our former distinguished Chief Justice Campbell, laid down for our guidance forty-five years ago in the case of Short v. People,27 Colo. 175, 186, 60 P. 350: "We should not be astute to find reasons for reversal where guilt so manifestly appears and where a fair trial is had."
The judgment is affirmed.
Mr. JUSTICE KNOUS, Mr. JUSTICE JACKSON and Mr. JUSTICE HILLIARD, dissent.