Abeyta v. People, 15324.

• Decision Date: 24 January 1944
• Docket Number: 15324.
• Citation: 145 P.2d 884,112 Colo. 49
• Parties: ABEYTA et al. v. PEOPLE.
• Court: Colorado Supreme Court

145 P.2d 884

112 Colo. 49

ABEYTA et al. v. PEOPLE.

No. 15324.

Supreme Court of Colorado, En Banc.

January 24, 1944

Error to District Court, City and County of Denver; Stanley H Johnson, Judge.

Sam Abeyta, Roger Abeyta, Tom Tafoya, and Joe Tafoya were convicted of rape and kidnapping, and they bring error.

Cause remanded, with directions.

E. V Holland, of Denver, for plaintiffs in error.

Gail L Ireland, Atty. Gen., H. Lawrence Hinkley, Deputy Atty. Gen and Wallace S. Porth, Asst. Atty. Gen., for defendant in error.

KNOUS Justice.

A criminal information was filed in the district court against the four plaintiffs in error, hereinafter designated as defendants, charging them in the first count with forcible rape, in the second count with assault to commit rape, and in the third count, with kidnapping. Upon trial the jury returned verdicts finding each defendant guilty of rape and kidnapping, and not guilty of attempt to commit rape. Following the overruling of motions for new trial, judgment of conviction was entered and separate sentences to the penitentiary for rape and kidnapping, to run concurrently, were imposed. The four defendants here seek a reversal of the judgment.

The specifications of error principally stress the question of whether punishment may be decreed properly for both the rape and kidnapping offenses upon the theory, as said, that the evidence showed no more than a single continuous act for which only one penalty might be imposed, and also whether in the circumstances here disclosed, the two counts involved rightly might be joined in the same information.

For the reasons hereinafter given, we are satisfied that irregularities in connection with the sentences imposed for the kidnapping offense require the deferment of consideration of the specifications of points presented until sentences within the limits fixed by the controlling statute are pronounced by the trial court.

On the rape conviction defendants were sentenced to imprisonment as follows: Joe Tafoya, twenty years to life; Roger Abeyta and Tom Tafoya, thirty years to life and Sam Abeyta, thirty-five years to life. For the kidnapping offense, Sam Abeyta was given forty years to life and the other three defendants from thirty-five years to life.

In pronouncing the sentences for kidnapping, the trial court apparently proceeded under the provisions of chapter 131 S.L.1937, without noticing that the 1937 law had been amended in 1939, S.L.1939, c. 98, p. 319, sec. 1, so as to fix the maximum penalty for the offense involved in the case at bar at thirty years' imprisonment in the penitentiary. This circumstance is not mentioned in the specifications of points nor in the briefs of counsel but appears definitely and certainly from an examination of the record and statutes. The presently effective statute defining the crime of kidnapping was adopted in 1933, S.L.1933, c. 62, p. 423, sec. 1, which appears in '35 C.S.A. as section 77, article 4, chapter 48. Covering different contingencies, the section comprises five subdivisions, numbered from 1 to 5, inclusive. The penalty provision of the original act (section 2 thereof) appears as section 78, article 4, chapter 48, '35 C.S.A. In 1937, by chapter 131, S.L.1937, section 78, supra, was amended so as to provide for different penalties, and in 1939, S.L.1939, c. 98, sec. 1, page 319, the 1937 act again was amended with respect to penalties for the violation of section 77, supra. The 1939 amendment, which was in force at the time of the alleged commission of the kidnapping here involved and at the time of the conviction therefor, appears as section 78, chapter...