Cortez v. People

• Decision Date: 27 July 1964
• Docket Number: No. 20671,20671
• Citation: Cortez v. People, 394 P.2d 346, 155 Colo. 317 (Colo. 1964)
• Parties: Rosendo Ernest CORTEZ, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 346

394 P.2d 346

155 Colo. 317

Rosendo Ernest CORTEZ, Plaintiff in Error, v.The PEOPLE of the State of Colorado, Defendant in Error.

No. 20671.

Supreme Court of Colorado, In Department.

July 27, 1964.

Charles D. Pierce, Pueblo, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., and John E. Bush, Asst. Atty. Gen., Denver, for defendant in error.

DAY, Justice.

Plaintiff in error was the defendant in the trial court and by the information was charged in two counts.In count 1 he was accused of 'rape by force and violence,' and in count 2 of 'rape by force and violence and by threats of bodily harm.'

At the close of the People's case defendant moved for directed verdict of acquittal which was denied, and at the close of all of the evidence, over objection of the defendant, the trial court instructed the jury both as to rape by force and violence and rape by threats of bodily harm, and submitted for the jury's consideration verdicts on both counts of the information.The jury found the defendant'guilty of rape by threats of bodily harm as charged in the second count of the information.'Defendant's motion for new trial was denied, and he was sentenced to a term in the Colorado State Penitentiary.

Defendant is here by writ of error claiming that the evidence does not support a verdict of 'guilty of rape by threats of bodily harm.'He contends that the evidence of the state, if believed, might be sufficient to sustain a verdict of guilty on the charge contained in the first count, but the jury not having returned a verdict on that count, might have rejected the evidence of the prosecutrix.For other grounds he attacks as erroneous InstructionsNos. 11 and 12 given by the court over objections.

1.The Sufficiency of the Evidence to Support the Verdict on the Second Count of the Information.

Defendant grounds his argument on this point with the assertion that the second count charged him with 'rape by threats of bodily harm.'CountNo. 2, however, did not charge the defendant in the exact wording of C.R.S. '53, 40-2-25(4).The wording of the charge varied slightly from the wording of the statute by making an accusation as to the specific manner in which it was alleged the crime was committed.The charge reads:

'* * * ROSENDO ERNEST CORTEZ, a male person, feloniously, wilfully and forcibly made an assault upon one Betty Gallegos, a female person not then and there his wife, and then and there feloniously, violently, forcibly and by threats of immediate and great bodily harm to her from him, and against her will, she having resisted and her resistance having been overcome by force, violence and said threats of immediate and great bodily harm, did forcibly rape and carnally know her, the said Betty Gallegos; * * *.'(Emphasis supplied)

The information was not challenged by any motion prior to the trial.It was legally sufficient and in language from which the nature of the charge could be readily understood by the accused and the jury.An information need not follow the exact wording of the statute.Sarno v. People, 74 Colo. 528, 223 P. 41;Ciccarelli v. People, 147 Colo. 413, 364 P.2d 368.

Thus the defendant was accused of rape by force, violence and threats of immediate and great bodily harm.It is proper in one count of an information to charge in all ways in which a crime may be committed by the use of the word 'and' even where the statute uses 'or'.Moffit v. People, 59 Colo. 406, 149 P. 104;Howard v. People, 97 Colo. 550, 51 P.2d 594.

Though C.R.S. '53, 40-2-25, is not in the disjunctive in the sense that it employs the word 'or', it is divided into subsections which are disjunctive in the very nature of the construction of the section.Only one crime is described, divided into first, second and third degree offenses.Rape in the first degree may be accomplished by any one of the ways specified in any one subsection or by a combination of one or more.

Testimony of the complaining witness to support the charge of force and violence and threats is ample.We need not detail the questions and the answers in stating that the testimony of the prosecutrix revealed a shocking recital of intermittent beatings interspersed by threats such as 'He just kept telling me that he was going to kill me if I didn't.'The prosecutrix was asked, 'Were you afraid?' to which she answered 'Yes.'She also testified that she was in 'fear.'This testimony, together with the other evidence showing that the victim had received a beating, had been 'thrown into the back seat of the car' supports all of the ways defendant employed to accomplish his purpose and which the information charged.

It must be noted that the defendant contended that the prosecutrix took her own clothes off and submitted voluntarily.He argues that the fact that her clothes were neatly folded, were not torn, is physical evidence of this contention.Even so, submission induced by fear of great bodily harm does not constitute consent, and this is particularly true where the threats are...