Cross v. People, 16560

• Decision Date: 09 October 1950
• Docket Number: No. 16560,16560
• Citation: 122 Colo. 469,223 P.2d 202
• Parties: CROSS v. PEOPLE.
• Court: Colorado Supreme Court

Page 202

223 P.2d 202

122 Colo. 469

CROSS v. PEOPLE.

No. 16560.

Supreme Court of Colorado, en Banc.

Oct. 9, 1950.

Moynihan-Hughes-Sherman, Montrose, for plaintiff in error.

John W. Metzger, Atty. Gen., Vincent Cristiano, Asst. Atty. Gen., for defendants in error.

HAYS, Justice.

An information containing three counts was filed in the district court against the defendant, plaintiff in error, the first two of which were dismissed by the district attorney, and defendant, waiving a jury, went to trial on the third count of such information, which, in so far as material, alleges that defendant 'did unlawfully and feloniously take immodest, immoral and indecent liberties with a female child, to-wit, Nadine Pretiger, who was then and there under the age of fourteen years, to-wit, of the age of twelve years, contrary to the form of statute in such case made and provided, and against the peace and dignity of the same people of the State of Colorado.'

The defendant was found guilty as charged, sentenced to the penitentiary, and here seeks reversal of the judgment.

The statute under which the information was filed provides; 'Any person over the age of fourteen years who shall assault any child under sixteen years of age and shall take indecent and improper liberties with the person of such child, or who shall entice, allure or persuade any such child into any room, office or to any other place for the purpose of taking such immodest, immoral and indecent liberties with such child, or who shall take or attempt to take such liberties with the person of such child at any place, shall be deemed a felonious assaulter, and, on conviction thereof, shall be punished, if over eighteen years of age, by confinement in the penitentiary for a term of not more than ten years, and, if under eighteen years of age, may be punished by commitment to the state reformatory or to the state industrial school.' ' 35 C.S.A., chapter 48, section 65.

A sufficient statement of the facts necessary for consideration hereof is contained in the findings of the trial court from which we quote: 'The evidence in the present case establishes the fact that the defendant went to the home of the 15 year old girl, told her mother that he had work for the girl; that the defendant was living in a 2 room house; that this girl with a 12 year old girl, Nadine Pretiger, went to defendant's house about noon; that they remained there until somewhere around 8:30 o'clock that evening; that the defendant had what was described as straight alcohol at his home; that he had a camera and lights fixed for taking pictures after dark; that the girls drank; that in some way the question of taking pictures was brought up; that the defendant did take photographs of the 12 year old girl. Certainly these photographs were lewd, shameful, improper, unchaste, obscene, depraved, indecent, unfit to be seen. Certainly the act of the defendant in taking the pictures was such as the common sense of society would regard as indecent and improper. It is a fair assumption that the girl wanted her picture taken. In so far as it appears from the evidence the defendant did not touch either of the girls, or make improper advances in the sense of asking that either have sexual intercourse with him. He did not fondle the girls. However, bearing in mind that assault is not essential; that consent is no defense, it still remains that a sense of decency, propriety and morality which people generally entertain, was and is violated by the conduct of defendant, and that defendant's conduct is rendered criminal by the act in question.'

The statute here involved has been construed by us in the following cases: Dekelt v. People, 44 Colo. 525, 99 P. 330; Paxton v. People, 79 Colo. 361, 246 P. 276; Koontz v. People, 82 Colo. 589, 263 P. 19; Martinez v. People, 111 Colo. 52, 137 P.2d 690; Kidder v. People, 115 Colo. 72, 169 P.2d 181; Warren v. People, 121 Colo. ----, 213 P.2d 381.

It was argued in Dekelt v. People, supra, that no assault was there committed in that the girl involved, being between 15 and 16 years of age, consented to, or at least did not object to, the acts alleged to have been committed. In answer to the contentions therein advanced, we said:

'The statute contains...