Brock v. People

• Decision Date: 03 February 1936
• Docket Number: 13882.
• Citation: 54 P.2d 892,98 Colo. 225
• Parties: BROCK v. PEOPLE.
• Court: Colorado Supreme Court

54 P.2d 892

98 Colo. 225

BROCK v. PEOPLE.

No. 13882.

Supreme Court of Colorado

February 3, 1936

Rehearing Denied March 2, 1936.

In Department.

Error to District Court, Adams County; Samuel W. Johnson, Judge.

Emery Brock was convicted of statutory rape, and he brings error.

Affirmed.

Mosko & Slatkin, of Denver, and Fischer & Sarvas of Brighton, for plaintiff in error.

Paul P Prosser, Atty. Gen., and Walter F. Scherer, Asst. Atty. Gen for the People.

BURKE Justice.

Plaintiff in error, hereinafter referred to as defendant, was, on a verdict of guilty of statutory rape, sentenced to the penitentiary for a term of five to seven years. To review that judgment he prosecutes this writ and asks that it be made a supersedeas. All of the assignments argued and deserving of notice might be grouped as follows: (1) A motion against the information was improperly overruled; (2) there were improper rulings on the admission of evidence; (3) the evidence was insufficient to support the verdict; (4) three of defendant's tendered instructions were improperly rejected.

At the time of the alleged offense, February 16, 1935, the prosecuting witness, hereinafter referred to as 'B,' was fifteen years old. At the time of the trial, June 10, 1935, she was pregnant; according to one physician, from three to five months; according to another, about four and one-half months. The latter, however, testified that conception could date from about February 16. On the evening in question defendant and his wife's cousin, one Kent, were at a Denver dance hall and there picked up 'B' and one 'C,' a girl of sixteen. Leaving about midnight, they walked some distance to Kent's home, procured his coupé, and with him driving, 'C' sitting next to him and 'B' sitting on the lap of defendant, whom she had just met for the first time, drove to a dance hall in Adams county. Leaving there shortly after, they took a main highway, then turned off on a side road, and stopped in an isolated place. Here about 3 a. m. the offense is alleged to have been committed. There is conflicting evidence concerning an assault, the resistance and cries of the girls, the building of a fire to warm them, and other incidental matters. Eventually all re-entered the car, sitting as Before, and, after driving a short distance, Kent, bent upon some further attempt, stopped the car. Defendant and the girls, not in harmony with Kent's designs, departed on foot, walked a considerable distance, were then picked up by a passing motorist and taken to Aurora where the girls lived, arriving about 4 a. m. Defendant is a married man who has a child, at the time of the trial about four months old. Each of the persons concerned in this escapade did more or less drinking during the course of the night. We consider the several alleged errors in the order argued by counsel for defendant.

1. The supporting affidavit was made by the mother of the prosecuting witness. Defendant, on the ground that affiant had no personal knowledge of the commission of the act, moved to rescind the order granting leave to file the information and strike it from the files. Counsel concedes that the points made are covered by the following, holding personal knowledge unnecessary: Holt v. People, 23 Colo. 1, 45 P. 374; Bergdahl v. People, 27 Colo. 302, 61 P. 228; Barr v. People, 30 Colo. 522, 71 P. 392; Overland C. M. Co. v. People, 32 Colo. 263, 75 P. 924, 105 Am.St.Rep. 74; Wickham v. People, 41 Colo. 345, 93 P. 478. However, because in none of these cases 'has there been filed a motion to revoke the leave granted to file the information,' they contend that a different rule should here be followed. We think the distinction is without merit.

2. The alleged defects in the evidence are, want of proof that 'B' was unmarried, insufficient evidence of the act charged, and insufficient proof of venue. It affirmatively appeared that 'B' was not the wife of defendant and that she was unmarried at the time of trial. Even this went in over defendant's objection, and there was no cross-examination on the subject. We think, taken with all the other evidence, that it was sufficient. In this kind of case, the existence of such facts at the time of trial supports the conclusion of their existence at the prior date, or they may be properly presumed from others established. Moya v. People, 88 Colo. 139, 144, 293 P. 335; State v. May, 59 Wash. 414, 109 P. 1026, Ann.Cas. 1912B, 113.

3. 'B's' testimony as to the commission of the act is positive and unequivocal. It is attacked because uncorroborated, and because, as to certain details, uncertain and contradicted. But the alleged defects in details may be easily explained and even natural. Corroboration is not essential. McQueary v. People, 48 Colo. 214, 219 110 P. 210; Peckham v. People, 32 Colo. 140, 75 P. 422; Dickens v. People, 60 Colo. 141, 152 P. 909. Were it otherwise, ample corroboration is here furnished by time, place, circumstances, and the status of defendant. True, 'B' testified to the use of force, and certain ordinary indications thereof were absent. But such girls...