32 Colo. 140 | Colo. | 1904
delivered the opinion of'the court.
The information charges the defendant with the crime of rape upon one Anna Nelson, “a female person under the age of eighteen years.” The defendant moved to quash the information upon the ground that the statute commonly known as the Age of Consent law is unconstitutional and void, and in his motion sets forth facts which he claims render the law unconstitutional. The district attorney did not answer the motion nor file demurrer thereto. The court, after argument, overruled the motion. The jury found the defendant guilty as charged in the information, and the defendant asks that the judgment of conviction be reversed: First, because the court erred in overruling the motion to quash; second, because the court erred in giving and refusing certain instructions. The specific objections to the instructions will be considered in the opinion.
It is contended by the defendant that the effect of the failure of the district attorney to answer or demur to the motion to quash was an admission that
It is not within the power of counsel to enter into a stipulation the effect'of which will render a law; void, nor will a law he held to be invalid because counsel have failed to deny the facts alleged concerning the entries in the legislative journals, even if the
The defendant requested the court to instruct the jury that unless the evidence on behalf of the state established the fact that the defendant was at the time the offense was alleged to have been committed a male person over the age of fourteen years, he must be acquitted, but the court refused the request and instructed the jury in substance that the state need not prove that the defendant was over the age of fourteen years, and th$t in the absence of proof to the contrary, the defendant was presumed to be over the age of fourteen years. The giving of this instruction and the refusal to give the instruction offered by the defendant is assigned as error.
The court did not err. It was not necessary to have alleged in the information that the defendant was over the age of fourteen years. ‘ ‘ The incapacity of a party, by reason of his tender years, to commit
The fact that the prosecuting .witness had given birth to a child was shown without objection from the defendant. The defendant offered an instruction to the effect that the fact that the prosecuting witness had given birth to a child was not evidence which the jury could consider in determining whether the defendant had committed the offense. The court refused the instruction, and the refusal of the court to so instruct the jury is alleged to be error. We think that no error was committed in refusing this instruction; the jury could not have been misled by the failure to so instruct, and the defendant in no event is entitled to have argumentative instructions given. •
The other assignments of error discussed relate to the refusal of the court to give instructions number 12 and 13. Number 12 is, in substance, that the law will not tolerate a conviction in this character of cases upon the uncorroborated testimony of the prosecutrix, and that evidence of opportunity will not corroborate the principal fact. Instruction No. 13 states that conviction is seldom allowed upon the uncorroborated testimony of the prosecutrix, and the jury is instructed that unless it finds beyond a reasonable doubt that the statements of the prosecutrix are corroborated as to the alleged acts of intercourse, that the defendant should be acquitted. In the case of Fager v. State, 22 Neb. 332, it is held that in a prosecution for rape
And in Bueno v. People, 1 Colo. App. 232, the court said: “We do- not wish to he understood as declaring, that no conviction for the crime of rape can be sustained where it rests upon the evidence of the prosecutrix alone, and uncorroborated, hut that such cases should he rare indeed. No general rule can he laid down. Each case must depend upon its own merits and surrounding circumstances, and, to a great extent, upon the character of the prosecuting witness. ” .
Upon the authority of the foregoing, the court correctly refused the instructions offered. There was testimony corroborating the prosecuting witness in many particulars. A witness testified that the defendant on many occasions entered the room of the prosecuting witness in the evening. On one occasion-when she was in bed he endeavored to uncover her. Another witness testified that on more than one occasion he had seen the defendant embrace the girl. Another witness said she heard-the defendant’s voice in the girl’s bedroom very early in the morning. The
Affirmed.