Bueno v. People

• Decision Date: 23 November 1891
• Citation: 1 Colo.App. 232,28 P. 248
• Parties: BUENO v. PEOPLE.
• Court: Colorado Court of Appeals

28 P. 248

1 Colo.App. 232

BUENO v. PEOPLE.

Court of Appeals of Colorado

November 23, 1891

Error to district court, Las Animas county; J.C. GUNTER, Judge.

Francisco Bueno was convicted of rape. A new trial was denied, and he brings error. Reversed.

Jesse G. Northcutt, for plaintiff in error.

Jos. H Maupin, Atty. Gen., (H.B. Babb, of counsel,) for the People.

REED J.

In March, 1891, plaintiff was indicted and convicted in the district court of Las Animas county for the crime of rape alleged to have been perpetrated upon the person of one Lupa Frata Consaluz. A motion for a new trial was made and overruled, and a sentence of three years' imprisonment imposed. In this case the conviction rests upon the testimony of the prosecuting witness, slightly corroborated in one particular only,--by the evidence of another Mexican woman, one Lucia Barela; the prosecutrix, as is frequently the case from the character of the offense, being the only one who testified to its perpetration. In speaking of the charge of rape, Lord HALE said. "An accusation easily to be made and hard to be proved, and harder to be defended by the party accused, though never so innocent." 1 Hale, P.C. 635. Conviction of the offense is seldom or never allowed upon the unsupported evidence of the prosecutrix. She is allowed to, and is generally the only witness who can, testify directly to the principal facts,--the perpetration of the offense; but to warrant conviction the evidence of the main fact must be corroborated by other evidence of circumstances and facts sustaining the principal charge. The injured party is legally competent as a witness. "But her credibility must depend upon the circumstances of the case which concur with her testimony; whether she is a person of good fame; whether she made complaint of the injury as soon as was practicable, without any inconsistent delay; whether her garments or person bore token of the injury done her; whether the place was remote from passengers or secure from interruption; and whether the offender fled, or the like. On the other hand, if she be of ill fame, and stands unsupported by other evidence, or if she concealed the injury for any considerable time after she had opportunity to complain, or if the act was done in a place where other persons might have heard her cries, but she uttered none, *** these circumstances, and the like, will proportionately diminish the credit to be given to her testimony." 3 Greenl.Ev. § 212; 2 Whart.Crim.Law, § 1149. "In prosecutions for this offense, when the prosecutrix is a witness, it is material to show that she made complaint of the injury while it was yet recent. Proof of such complaint is original evidence." Whart.Crim.Ev. § 273. The complaining witness testified that, as she was passing along the trail, the defendant caught her. She immediately hallooed three times in quick succession, as rapidly as she could. At the third call the woman Barela arrived, having heard the calls. So far, and only so far, is she corroborated by the witness Barela. The testimony of the prosecutrix was that up to the time of the third call they were standing, he holding and retaining her by force. At the third call he threw her upon her back upon the ground, placed himself upon the top of her person, and proceeded to accomplish his purpose. That, while holding her by the wrists, he drew a knife from his pocket, and threatened her life. She continued to resist him by every possible means until exhausted, when he succeeded in accomplishing the crime. The struggle was fierce and long-continued, her clothes rent and torn, her lower limbs bruised and blackened to her knees, her wrists lacerated and bleeding. She said: "The left wrist, where he took hold of it, he squeezed it so hard that blood flew from my wrist. The other one was black and blue." Both she and Barela concurred in saying that at the third call Barela arrived. So it is clear that at the time the crime had not been consummated; nor had the struggle, testified to by the prosecutrix, commenced; nor had the knife been produced, or the threats made. She further stated that on the arrival of Barela they were lying side by side on the ground. Afterwards said she was lying across his lap, and that he was holding her by the wrists to prevent her getting away. The woman Barela testified that on her arrival he was sitting on the ground and she lying across his knees, he doing nothing to detain her. "He didn't have hold of her. She was just lying across his legs." That she made no effort to move or get away; made no complaint whatever; said nothing at all; required no assistance. The conclusion is irresistible either that the story of the hallooing was a pure fabrication, or that the alleged victim of forcible lust had changed her mind.

The object of hallooing is legally supposed to be to obtain assistance and prevent the perpetration...