*1 15,377. No. People. The Davis v. 15,378. People.
Kloberdanz 67) [2d] July 3, Rehearing denied Decided June *2 for E. Anderson, Mr. T. Munson, E. Mr. Leonard in error. plaintiffs Mr. H. Law- General, Ireland, Attorney L.
Mr. Gail Henderson, As- Mr. James S. Hinkley, Deputy, rence sistant, for people.
En Banc. Goudy of the court. the opinion delivered
Mr. Justice below, to whom we error, in defendants Plaintiffs Klober- Davis or defendants, or as hereinafter refer as aby found guilty each were danz, respectively, for trials hav- and, their motions new crime of rape, to serve sentenced denied, they duly were ing Thereafter sued out in the penitentiary. terms for court, in and have applied super- of error this writs below, and on cases were tried together sedeas. The counsel, consolidated here. Defendant stipulation final determination on the in error application requests supersedeas being and there no thereto proceed accordingly. defendants, we have elected to A detailed statement evidence would revolting jurors and useless. From that evidence justified believing young were in three men and young including prose- two women, defendants and cuting approach- witness Lottie, were an automobile ing Sterling, Sunday, Colorado, at about 10:30 P.M. Jan- uary 31, 1943. Kloberdanz and Lottie in the back seat other three in the front seat with Davis driving. charged The offense was committed in the back stopped seat first Kloberdanz, and after the car was changed places, by and defendants had Davis; each rendering assistance to the In other. each case there ample evidence of force and resistance. Defendants years were each old, Kloberdanz was feet 9 inches weighed pounds. tall and Davis was 6 feet 3 inches *3 weighed pounds. eighteen years tall and 176 Lottie was weighed pounds. old and not to exceed 120 Defendants, testifying in their behalf, own each admitted the inter- course, denied force and resistance and asserted consent. occupants The other of the car also testified on the trial. assignments presented, Of the error those twelve of argued by counsel defendants are: 1. The evidence charged. was insufficient to establish the 3.2, crimes given by Instructions 5 Nos. and 6 the er- court were roneous. 4. Remarks the of district in his clos- ing argument constituted reversible error. conflicting
Point 1. The evidence was men’s minds differ well as to the conclusions to say, reading be therefrom, drawn cannot we after record, the there not was sufficient evidence to jury finding guilty the warrant in the defendants charged. jury The members the of saw and heard the judges the witnesses on stand and the of their credibility weight and the of the evidence, deter willing mined the facts and displace unless we are retry upon presented, them and the cases the record
455 judgments based the then the of verdicts the People, 82 thereon Dickson v. should be disturbed. People, 44, 87 Colo. 233, 1038; Colo. v. Weiss People, 285 29 P. 230, Dill Colo. 162; Pac. People, (2d) 745. We Carlson v. 27 P. 93 Colo. believe the correct out in Harlan rule is set 792), said Colo. at Pac. where rape only force is that to constitute the crime of such required necessary re- as is to overcome the woman’s degree upon depending the cir- sistance, the force of guilty jury’s cumstances of each of case, and verdict is a should not be disturbed in cases there where proof. total failure of alleged to be 5,No. Instruction
Point No. 2. rape’ charging ‘forcible erroneous, reads: “In a case by testimony prosecutrix must be corroborated shown Such corroboration other evidence. complaint making proof struggle, of a or evidence by opportunity, her earliest tending prove commission other evidence charged.” to this of defendants offense forci conviction of is, instruction authorizes testimony of the corroboration ble respect question of to the with accompanied intercourse not the act of whether or App. citing force, Bueno v. “The not con said: does Pac. where court law template, and seldom allows conviction to stand prosecutrix. unsupported testimony It re support principal quires evidence corroborative court said: “We do not wish to be fact.” But the also *4 declaring that no conviction for the crime as understood upon rape the evi can be sustained where rests prosecutrix alone, uncorroborated, dence of general rare indeed. rule that such cases should be No depend upon must laid Each case its own can be down. surrounding circumstances, and, to a merits prosecuting the character of witness.” extent, 456 (75 People, page
In Peckham
145
Pac.
v.
Point No. 3. Instruction No. 6 er- *5 person like cir- under roneous, reads: “If a reasonable confronting of the time cumstances commission of the crimes with charged, been afraid defendants stand would have person, resist, or like circum- if to a reasonable under and then stances, useless, resistance would have any in that excused for case Lottie McDonald would be you find resistance, failure she in her if have made providing she did inter- resist, act, acts, of sexual by accomplished course involved in these cases was objecting either, or both of the her and defendants over against protest.” her defendants to this instruction are First, two-fold: that it allows a con- charge rape any proof viction on the of forcible and, force, second, that allows in this conviction charge case a not contained in the information, in this, to wit: that if the resist, was afraid to necessary. then the resistance ’35 C.S.A. volume part is, A of the chapter paragraphs 4, de- 3 and 48, section the in- separate crimes, and distinct fine two charge defendants with herein formations supra, paragraph 3. Section under defined crime intercourse, accom- rape of sexual as “an act defines person, male and female plished with, or between * person is not wife female where such * ** * * * following cir- perpetrator, under person By male whatever cumstances: age, resists, person, her age whatever the female where violence; force or is overcome her resistance By degree; rape the male first in the this is person, age, the female what- person where of whatever age, prevented threats of from resistance her ever bodily accompanied ap- harm, immediate * * rape *; and this is in the power parent of execution rape Succeeding “All degree. section 59: cases of first degree first shall be in the defined as herein knowledge person of a female carnal and are deemed forcibly against her in each The informations will.” present cases, for the name of the defend- charge, ant, are the [defend- same and inter alia: “that *6 * * * * * * being person, ant] a male then did * * and there forcibly against feloniously, and [her] *, will ravish carnally [her] know *, said Lottie McDonald resisting then and there and the was, said resistance the said [defendant] violence, overcome force and Counsel for defendants in their briefs concede charged the offenses with are common-law the defendants were present rapes. Three elements must be knowledge, force, constitute the crime: carnal against the commission of the act the consent or without pp. the will of the 22 R.C.L., 1171, 1172, §§1, victim. p. “by §2. Jur., Am. The 902, term force” does not necessarily imply positive physi- exertion of actual compelling cal force in the act of submission of the fe- male; but force or violence threatened as a result of noncompliance purpose preventing and for the resist- extorting ance, or consent, if it be such as to create a apprehension dangerous consequences, real bodily overpower harm, or such as in manner to mind of the victim so that she dare resist, is, not principles regarded, all sound must be for this purpose, respects equivalent actually inas all to force purpose. p. exerted for the same R.C.L., 1178, §9; p. Magwire §5. Jur., 44 Am. 903, In we said: “This is the old rule of ‘re- repudiated by to the uttermost,’ sistance the more mod- enlightened require ern authorities which such age, physical resistance as mental and condition, and surrounding facts and circumstances, demand to make opposition reasonably Cyc. manifest. 33 1506. Indeed facts necessity such and circumstances obviate the proof physical they resistance, as where show fear making impossible, making or conditions it useless.” p. §7. question See, also, 44 Am. Jur., The of re- Magwire jury. sistance is one of fact for the supra. objections urged by well defendants
taken. The allow con- contention that the instructions any proof viction of force must answered way the same as the to instruction No.
is, that the as a whole instructions must be considered they correctly and when so considered state law. being rapes The offenses instruction No. common-law proper. 6 was jury, the
Point No. 4. In his to the district stated that re defendants penitentiary reformatory sentence, ceive either a or a and it is contended that this statement constituted prejudical frankly error. Counsel for defendants admit in their briefs that made no to such state *7 ment, for at time believed it true. The although record does not contain the statement, there is appended thereto an affidavit of the district adoption as to it was, what and an statements that affidavit defense counsel. It ais familiar rule requires objections no which citation of authorities that cannot be raised for the first time in court, this exceptional under circumstances hereinafter dis In addition, cussed. the trial court in the instructions arguments that statements advised of coun are not See, sel evidence. Honda v. 111 Colo. (2d) 279, 141 P. 178. It was not the function of the jury to determine whether defendants if should, found guilty, tory, penitentiary be sentenced to the or the reforma presented
but to determine from the evidence guilt or innocence of the defendants. We feel that this objection fourth has no merit. One of the issues in the Reppin case of P. for defendants,
cited counsel had to -do with the ad True, mission of evidence. we there said that we grave prejudicial though take notice of error, even no objection thereto had made in the trial court. But impress presented us here does not error rights
being seriously prejudicial defendants. They represented the record able counsel were throughout plentiful shows that paid point, no counsel trial. We feel that this to which grave during nature trial, attention was not of notice us in the absence which warrants below.
Finding judgment is affirmed. error, no reversible dissent. Mr. Justice Knous and Mr. Justice Hilliard Mr. Justice Mr. Justice Hilliard dissenting. Knous and length pause the reasons do not
While we state prompt because of end, us to that we dissent our plaintiffs not have a fair conviction that in error did trial; viewing that, submit, concern of re- whole justice.
ministers of 15,101. Tramway Corporation v. Callahan. Denver 798) [2d] Rehearing July 24, Decided June denied