24 Colo. 532 | Colo. | 1898
delivered the opinion of the court.
The record discloses that the only evidence introduced upon the trial was on the part of the people, and consisted
The principal error relied upon for a reversal is that there was no direct evidence to show that Mitchell was over fourteen years of age, it being insisted that it was incumbent upon the people to establish this fact by sworn testimony, in order to sustain a conviction under the stutute. This objection is not well taken. It is not necessary, in an indictment for rape, to allege, nor incumbent upon the state to prove, the age of the defendant. In Commonwealth v. Scannel, 11 Cush. 548, the question of the necessity of averring the age of the defendant in an indictment for rape was presented, and the court say:
“ It is not necessary in an indictment for rape, to allege that the defendant is fourteen years of age. It might as well be contended that in all other cases, the indictment must allege that the party charged was above the age of seven years. The incapacity of a party, by reason of his tender years, to commit the crime charged upon him, may be a good defense on the trial, as it may negative effectually the charge, but this capacity is not required to be stated in the indictment, and its omission furnishes no ground for arresting the judgment, after a verdict against the accused.”
To the same effect are People v. Ah Yek, 29 Cal. 575; Davis v. State, 42 Texas, 226; 2 Bish. on Crim. Pro. § 954.
The further errors relied upon are that there was no defi
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 them that upon which it would rely for a conviction; and in the absence of any express election from the record it is to be presumed that the prosecution elected to stand by the offense it first introduced evidence to establish; and that 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. People v. Jenness, 5 Mich. 305; People v. Ten-Elshoff, 92 Mich. 167; Whart. on Crim. Ev. § 35; State v. Knapp, 45 N. H. 148.
While, as counsel suggest, there are many things in the record that tend to arouse a suspicion that the prosecution may have been inspired by mercenary motives, and that tend to affect the credibility of the witnesses who testified against the defendant, yet these are not matters for our consideration. The jury were the judges of the credibility of the,witnesses, and of the weight to be given to their testimony; and having found the defendant guilty upon testimony which, if true, clearly establishes his guilt, we are not at liberty to disturb their finding.
Affirmed.