44 Colo. 525 | Colo. | 1908
delivered the opinion of the court:
Plaintiff-in error was convicted under a statute entitled “An act concerning the taking of indecent liberties with children, and to provide punishment therefor” (Laws 1905, 181; § 1656, Eev. Stats.), and sentenced to a term in the penitentiary. The act in question is as follows:
“Section 1. Any person over the age of fourteen years who shall assault any child under sixteen years of age, and shall take indecent and improper liberties with the person of such child, or who shall entice, allure, or persuade any such child into any room, office, or to any other place for the purpose of taking such immodest, immoral and indecent liberties with such child, or who shall take or attempt to take such liberties with the person of such child at any place, shall be deemed a felonious assaulter, and, on conviction thereof, shall be punished, if over eighteen years of age, by confinement in the penitentiary for a term not more than ten years, and if under eighteen years of age, may be punished by commitment to the state reformatory or to the state industrial school.”
From the testimony it appears that the proseen-. trix, a girl between the age of fifteeh and sixteen years, consented, or at least did not object to the acts charged in the information; and for this reason it is contended by counsel for the defendant that the offense was not proven, because- there can be no indecent assault upon a consenting female. The language of the statute seems to imply that there are three distinct acts which will constitute the offense. So far as the case at bar is concerned, it falls within the last, as fixed by the statute, which is as follows: “ or * * * who shall take, or attempt to take, such liberties with the person of such child at any place,
In ascertaining the intention of the legislature where the words employed in a statute are not explicit, it is permissible to take into consideration the necessity for the law and the remedy in view, and that intention is to he presumed which is consonant with reason and will tend to afford a remedy for the evils which it is the purpose of the law to guard against.—Croomes v. State, 40 Tex. Crim. 672. The evident purpose of the law was to protect children under a certain age from those acts which would tend to corrupt their morals, So that the question of the consent or non-consent of those included within the law is not material, because its prime object is to protect the morals of youth by punishing those committing acts having a tendency to corrupt them.
It is a fundamental rule to be observed in construing a statute that every law is adopted as a whole, and a clause which, standing alone, might seem of doubtful import, may yet be made plain by a comparison with other clauses or portions of the same law.—People ex rel. v. Osborne, supra. Applying this rule to the statute under consideration we find that taking the prohibited liberties by force is denounced as a crime, and as the same section makes it the same crime to commit the prohibited acts without the mention of force, it clearly demonstrates the purpose" of the legislature to make the commission of the acts specified an offense, without regard to the consent of the child.
The statute is also attacked upon the ground that it does not describe the actions or conduct which shall constitute the offense for which the accused was placed on trial, and for this reason it is urged that the statute is void, because what might be regarded as immodest, immoral and indecent liberties in one community or with a certain class of persons, would not be so regarded in another community or by another class. It is true that where the terms employed in a statute designating what acts shall constitute a crime are of such uncertain meaning or so confused that the courts cannot discern with reasonable certainty what is intended to constitute the offense, the enactment is void.—Bishop on Stat. Crimes (2d ed.), § 41; Cook v. State, 59 N. E. 489; State v. Mann, 2 Ore. 238.
There must be a certain standard by which to determine whether or not specified acts constitute a crime. Tested by this rule, the statute under consideration is not invalid. Taking ‘‘immodest, im
So, it is apparent, when we take into consideration that the purpose of the act was to protect the morals of the child, that the legislature employed apt words to describe the offense, because it is evident that the acts constituting the offense means such as the common sense of society would regard as indecent and improper.—People v. Hicks, 56 N. W. 1102. True, what shall be regarded as “immodest, immoral and indecent liberties” is not specified with particularity, but that is not necessary. The indelicacy of the subject forbids it. The common sense of the community, as well as the sense of decency, propriety and morality which people generally entertain is sufficient to apply the statute to each particular case, and point out unmistakably what particular conduct is rendered criminal by it.—State v. Millard, 18 Vt. 574. The law is not invalid for any reason assigned by counsel for defendant; but for an error committed at the trial, which we shall now consider, the judgment must be reversed.
It is contended by counsel for the people that the-error of the court in communicating with the jury should not be considered because it was not included in the motion for a new trial. It sufficiently appears from the record that neither counsel nor the defendant knew of this communication until after the motion for a new trial had been denied, sentence pronounced, and the Case brought here for review on error, when the defendant and his counsel first learned of the communication, and thereafter brought the matter to
The purpose of the statute we have considered is highly commendable. We uphold it as valid. The morals of youth should he protected. The penalty imposed for a violation of the law, a term in the penitentiary only, for those over the age of eighteen years, is severe. In many instances violations of its provisions would justify the infliction of the penalty provided; in others, the penalty is extremely severe, of which the case at bar is a striking example. The sentence imposed upon the defendant was a ter-m in the penitentiary of not less than one year, nor more than fifteen months. The law includes a boy just past the age of eighteen; he might he tempted to violate it by a girl nearly sixteen years of age who, by reason of her environments, experience and depravity would be the real culprit. In such circumstances it would be extremely harsh to- inflict upon him the ignominy which would cling-to him for the remainder of his life of having worn -the- stripes of a felon; hut it is for the general assembly to prescribe the penalty for the violation of a criminal statute. With this discretion, when exercised within constitutional bounds,the courts cannot interfere.
The judgment of the district court is reversed and the cause remanded for a new trial.
Reversed and remanded.
Chief Justice Steele and Mr. Justice Campbell concur.