30 Colo. 298 | Colo. | 1902
delivered the opinion of the court.
,/Phe defendant, who is the father of the prosecuting witness, was convicted of the crime of rape and sentenced accordingly. They were the only witnesses to the material facts and contradicted each other in every important particular. We are loath to disturb the. verdict of a jury, and would not do so in this case were it not so clear that grave errors were committed by the trial court. But to allow the judgment to stand would be to violate principles of law which have been repeatedly enunciated by the highest courts of this country and England. /
The information contained two counts, in the first of which the district attorney avowedly intended to charge the defendant with carnal knowledge of the prosecuting witness, a female under the age of eighteen years, “the age of consent,” under our statute. In the second count defendant was charged with carnal knowledge of the same female forcibly and against her will. In the first count there was no necessity of charging that the crime was committed forcibly or against the will of the prosecuting witness, for she was legally incapable of consenting, while in the second such elements were necessary. The first count contained these superfluous averments. Before the plea of not guilty was entered defendant moved to quash the first count on the ground of duplicity, which was overruled by the court and an exception taken, and the ruling is assigned for error,
1. Since, by the verdict of the jury, defendant was found.guilty under the second count only, this operated as, an acquittal of the first, which, in. subsequent proceedings, must be ignored. The first
2. The second assignment of error argued goes to the ruling of the court refusing defendant’s request to compel the prosecution to elect upon which count to rely. As already stated, the attempt of the prosecution was, in the first count, to charge defendant with carnal knowledge of a female under the statutory age of consent, and in the second count with such knowledge forcibly and against her will. The two counts relate to one and the same transaction, and concern the same defendant, and it was entirely within the sound discretion of the trial court to grant or refuse this motion of defendant; for it might well be that it was impossible before the evidence for the prosecution was in with certáinty to ascertain the age of the prosecuting witness at the time of the commission of the alleged crime. The authorities uphold the ruling, of which the following are illustrations: Beason v. State, 72 Ala. 191, 193; State v. Houx, 109 Mo. 654, 661; Thompson v. State, 33 Tex. Crim. Rep. 472.
3. The district court of the second judicial district of Colorado has five divisions, of which the fifth is commonly called the criminal division. At the time of this trial Hon. Frank T. Johnson, one of the regularly elected judges of that court, was sitting in the fifth division. He requested the judge of another judicial district of the state to occupy the bench, and authorized the latter to carry on a court as attached to that division. This authorization is expressly provided for in sections 1038 and 1039 Mills’ Ann. Stats.; but the defendant attacks these provisions and the ruling below upholding them, upon the ground that there is no constitutional authority for them.
The constitutional section is not restricted to such narrow limits, and the sections of the statute above referred to authorizing a judge of the district .court, when the accumulation of judicial business demands it, to request the assistance of the judge of any other district to hold court for the former, in a different room, and providing that the two judges may hold their respective sessions in different rooms at the same time, are not in violation of any constitutional provision to which our attention is called. In the circumstances of this case the judge presiding at the trial had authority to try it.
4. The constitutionality of the so-called indeterminate sentence law (Session Laws 1899, 233) is questioned by the defendant, but we do not think he is in a position at the present time to complain of the law in the particulars assigned, .and for this reason we decline to consider it. . •
In Mitchell v. The People, 24 Colo. 532, 535, the court in speaking of a ruling admitting evidence of acts of sexual intercourse other than the one charged in the information, said: “The evidence of different acts was not objected to, nor was any motion made requiring the prosecution to elect upon which of them it would rely for a conviction. * * * All the acts proved were within the period of the statute of limitations applicable to the offense charged; and the prosecution had the right to select from among thein that upon which it would rely for a conviction; * # and the evidence of other acts of sexual intercourse between plaintiff in error and the prosecuting'witness was not introduced to prove substantive offenses, upon which a conviction might be had, but in corroboration and explanation of the evidence of the act charged. For this purpose the evidence of the other acts was clearly admissible.”
In the case at bar this evidence was objected to at the time it was offered and a motion .was made re
6. There were several particulars wherein the court erred in its rulings on evidence and in restricting the scope of the cross-examination of witnesses by defendant’s counsel. We do not.consider all of .these, but mention one for which no excuse is offered. Upon examination in chief the prosecuting witness .testified that defendant had intercourse with her at .various times while they were going through certain woods. On cross-examination defendant’s counsel asked her if she could name one person who ever saw them going there-through, to which she replied that a good many saw them; and when asked if she could name one, the district attorney made an objection to the question which the court sustained. That this was erroneous and reversible error is plain.
7. No outcry or complaint was made by defendant immediately after the commission of the alleged offense, but on the 2d of January, 1900, she wrote to her mother a letter in which she related a series of disgraceful acts' which she said had taken place between her and the defendant; and it wás objected that the so-called outcry was not so recent after the act -relied on as to entitle it to be read in evidence. The
8. For more substantial reasons, however, flits judgment must be reversed. If there is any evidence tending in any degree to corroborate the prosecuting witness, it is exceedingly slight. Assuming that the testimony which she gave is true, the case, as made by her, is fatally defective. The prosecution elected to rely upon an offense said to have been committed between Christmas, 1899, and New Year’s day,. 1900. In testifying thereto the prosecuting witness said, and it is all she says as to the particular act, in answer to a question if anything occurred between her and the defendant between those dates: “My father come and took me out to the alley with him and he had intercourse with me.” In this conuectioñ there is not a word of testimony that she made any resistance, or that the act was against her consent, or that any force was used, or threats made. It must be remembered that at that time she was over eighteen years of age, and, as instructed by the court, “to constitute
A number of other rulings have been discussed,but they are not likely to occur at another trial, and therefore we do not consider them. It being clear that serious and prejudicial errors were committed in the trial of the cause, the judgment should be reversed, and it is so ordered.
Reversed.