Clark v. People, 24380
| Decision Date | 27 September 1971 |
| Docket Number | No. 24380,24380 |
| Citation | 176 Colo. 48,488 P.2d 1097 |
| Parties | Ned CLARK, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error. |
| Court | Colorado Supreme Court |
Walton, Tammen & Hudson, Norman E. Walton, Colorado Springs, for plaintiff in error.
Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., E. Ronald Beeks, Asst. Atty. Gen., Denver, for defendant in error.
Plaintiff in error, hereinafter called defendant, went to trial upon his plea of not guilty to the charge that:
Upon trial by jury defendant was found guilty and ultimately sentenced to the Colorado State Reformatory, to which judgment he brings writ of error upon an agreed statement of the case.
The first assignment of error is based upon the contention that the information does not charge a crime; the second, that 1967 Perm.Supp., C.R.S.1963, 40--25--1, is unconstitutional; and the third arises from the court's refusal to give two tendered instructions.
It is conceded that the charge as above quoted is not a model of clarity. However, the question is whether after eliminating as surplusage the 'attempt to make an assault,' sufficient remains to charge an attempt to commit rape. This question is answered in the affirmative. Intent to commit rape is included in the charge of attempt to commit rape whether specifically alleged or not.
The contention, which defendant advances, that there is no crime of attempt to commit rape under 1967 Perm.Supp., C.R.S.1963, 40--25--1, in view of the existence of the crime of assault with intent to commit rape under C.R.S.1963, 40--2--34, is without merit. These are separate and distinct offenses. Ramirez v. State, 55 Ariz. 441, 103 P.2d 459.
The challenge to the unconstitutionality of 1967 Perm.Supp., C.R.S.1963, 40--25--1 is claimed to flow from alleged vagueness and indefiniteness constituting a deprivation of due process of law. A statute is presumed to be constitutional and one attacking its validity has the burden of establishing invalidity beyond a reasonable doubt. Flank Oil Co. v. Tennessee Gas Transmission Co., 141 Colo. 554, 349 P.2d 1005. The statute in question redefines the old crime of attempt in novel language, but it cannot be said that it fails to give fair warning of what is forbidden to men of common intelligence. Self v. People, 167 Colo. 292, 448 P.2d 619, illustrates the standard that is applied. The defendant failed to meet his burden on the constitutional issue.
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