Poor v. People

67 Colo. 60 | Colo. | 1919

Opinion by

Mr. Justice Allen:

The plaintiff in error was convicted in the County Court of Larimer County upon .trial, before a jury, under an information charging him, under chapter 179 S. L. 1911, with the non-support of an illegitimate child, of which he is alleged to be the father.

The only issue of fact, concerning which there is any controversy, is whether or not the defendant is the father of the child in question. It is contended by the defendant that the evidence “overwhelmingly proves that defendant did not have sexual relations with (the prosecuting witness) at a time when it was possible for him to be the father of her child.”

The prosecuting witness, the mother of the child, testified to an act of sexual intercourse with the defendant on June 24, 1917. This date is admitted to be within a period of time during which the child is likely to have been begotten. It was born March 24, 1918. Other witnesses testified that the defendant was at the home of the prosecuting witness several times during the months of May and June, 1917, usually on a Sunday. There was also testimony to the effect that the defendant was the only man who visited, or kept company with, the prosecuting witness during the month of June, 1917.

The defendant offered evidence tending to establish an alibi as to June 24, 1917, and also as to other Sundays in that month. He also testified that he had no sexual intercourse with the prosecuting witness at any time “from December, 1916, until October, 1917.”

It was the province of the jury to determine the credibility of the witnesses, the weight of their testimony, and to decide the facts. There was sufficient evidence to support the verdict. The conviction cannot be disturbed on any ground relating to the alleged insufficiency of the evidence. 17 C. J. 254, et seq.; Hamilton v. People, 63 Colo. 314, 165 Pac. 761.

The defendant further contends that the judgment or sentence, as given in the instant case, is not authorized by the statute and is, on this account, a nullity. The judgment is as follows:

“Whereupon, it is the sentence of the court that the defendant do pay for the support of the child involved in this prosecution the sum of $12.50 per month until the further order of this court, and that he do execute a bond in the sum of $500.00 for the faithful performance of the terms imposed herein, and upon failure to execute the bond as aforesaid, that he be taken from the bar of this court * * * and transported * * * to the penitentiary * * * to be kept in close confinement, at hard labor, for the period of three months.”

Without deciding or stating what is or may be a correct or proper form of judgment, in cases of this kind, we find that the judgment, in the instant case, both in form and in substance, sufficiently complies or accords with the provisions of the statute as to preclude a reversal. The judgment imposes upon the defendant no greater burden or punishment than that authorized by the statute. It gives him the same opportunity to avoid the penalty of imprisonment in the penitentiary as would be given by a judgment in some other form under section 1 of the act, where it is provided, among- other things, that the court “may in lieu of the penalty” of imprisonment in the penitentiary for a period not exceeding one year, “accept from the person convicted a bond, * * * in such penal sum, not exceeding one thousand dollars, * * * conditioned that he will comply with the provisions of this act, or perform the conditions required by the court for his compliance with this act in case he is placed on probation. * * ■ *”

Assuming, without conceding or deciding, that the judgment is in any respect erroneous, the error is in no way prejudicial to the defendant. As said in 17 C. J. 356, sec. 3719, “errors in a judgment which are not substantially prejudicial to defendant do not constitute a ground for reversal.”

We find no reversible error in the record, and the júdgment is therefore affirmed.

Affirmed.

Chief Justice Garrigues and Mr. Justice Bailey concur.