Davis v. People

• Decision Date: 12 June 1944
• Docket Number: 15377,15378.
• Citation: 150 P.2d 67,112 Colo. 452
• Parties: DAVIS v. PEOPLE. KLOBERDANZ v. SAME.
• Court: Colorado Supreme Court

150 P.2d 67

112 Colo. 452

DAVIS v. PEOPLE.

KLOBERDANZ v. SAME.

Nos. 15377, 15378.

Supreme Court of Colorado, En Banc.

June 12, 1944

Rehearing Denied July 3, 1944.

Error to District Court, Logan County; H. E. Munson, Judge.

Willis Davis and Fulton Gabrial Kloberdanz were convicted of rape and they bring error. The cases were consolidated for decision by the Supreme Court.

Affirmed.

KNOUS and HILLIARD, JJ., dissenting.

Leonard E. Anderson, of Brush, and T. E. Munson, of Sterling, for plaintiffs in error.

Gail L Ireland, Atty. Gen., H. Lawrence Hinkley, Deputy Atty. Gen and James S. Henderson, Asst. Atty. Gen., for defendant in error.

GOUDY Justice.

Plaintiffs in error, defendants below, to whom we hereinafter refer as defendants, or as Davis or Kloberdanz, respectively, each were found guilty by a jury of the crime of rape, and, their motions for new trials having been denied, they were duly sentenced to serve terms in the penitentiary. Thereafter they sued out writs of error in this court, and have applied for supersedeas. The cases were tried together below, and on stipulation of counsel, are consolidated here. Defendant in error requests final determination on the application for supersedeas and there being no objection thereto by defendants, we have elected to proceed accordingly.

A detailed statement of the evidence would only be revolting and useless. From that evidence the jurors were justified in believing that three young men and two young women, including defendants and the prosecuting witness Lottie, were in an automobile approaching Sterling, Colorado, at about 10:30 P.M. Sunday, January 31, 1943. Kloberdanz and Lottie were in the back seat and the other three in the front seat with Davis driving. The offense charged was committed in the back seat first by Kloberdanz, and after the car was stopped and defendants had changed places, by Davis; each rendering assistance to the other. In each case there is emple evidence of force and resistance. Defendants were each 17 years old, Kloberdanz was 5 feet 9 inches tall and weighed 160 pounds. Davis was 6 feet 3 inches tall and weighed 176 pounds. Lottie was eighteen years old and weighed not to exceed 120 pounds. Defendants, testifying in their own behalf, each admitted the intercourse, denied force and resistance and asserted consent. The other occupants of the car also testified on the trial.

Of the twelve assignments of error presented, those argued by counsel for defendants are: 1. The evidence was insufficient to establish the crimes charged. 2, 3. Instructions Nos. 5 and 6 given by the court were erroneous. 4. Remarks of the district attorney in his closing argument constituted reversible error.

Point No. 1. The evidence was conflicting and men's minds might well differ as to the conclusions to be drawn therefrom, but we cannot say, after reading the record, that there was not sufficient evidence to warrant the jury in finding the defendants guilty as charged. The members of the jury saw and heard the witnesses on the stand and were the judges of their credibility and the weight of the evidence, they determined the facts and unless we are willing to displace them and retry the cases upon the record presented, then the verdicts of the jury and the judgments based thereon should not be disturbed. Dickson v. People, 82 Colo. 233, 259 P. 1038; Weiss v. People, 87 Colo. 44, 285 P. 162; Dill v. People, 94 Colo. 230, 29 P.2d 1035; Carlson et al. v. People, 93 Colo. 570, 27 P.2d 745. We believe the correct rule is set out in Harlan v. People, 32 Colo. 397, at page 402, 76 P. 792, where we said that to constitute the crime of rape only such force is required as is necessary to overcome the woman's resistance, the degree of force depending upon the circumstances of each case, and the jury's verdict of guilty should not be disturbed except in cases where there is a total failure of proof.

Point No. 2. Instruction No. 5, alleged to be erroneous, reads: 'In a case charging 'forcible rape' the testimony of the prosecutrix must be corroborated by other evidence. Such corroboration may be shown by evidence of a struggle, or by making proof of complaint by the prosecutrix at her earliest opportunity, or by other evidence tending to prove the commission of the offense charged.' The objection of defendants to this instruction is, that it authorizes conviction of forcible rape without any corroboration of the testimony of the prosecutrix with respect to the question of whether or not the act of intercourse was accompanied by force, citing Bueno v. People, 4 Colo.App. 232, 28 P. 248, 250, where the court said: 'The law does not contemplate and seldom allows a conviction to stand upon the unsupported testimony of the prosecutrix. It requires corroborative evidence to support principal fact.' But the court also said: 'We do not wish to be understood as declaring that no conviction for the crime of rape can be sustained where it rests upon the evidence of the prosecutrix alone and uncorroborated, but that such cases should be rare indeed. No general rule can be laid down. Each case must depend upon its own merits and surrounding circumstances, and, to a great extent, upon the character of the prosecuting witness.' In Peckham v. People, 32 Colo. 140, page 145, 75 P. 422, we said that we did not understand the rule in such cases to require corroborating testimony to the particular face of the rape; and in Dickens v. People, 60 Colo. 141, page 146, 152 P. 909, we held that corroboration of the victim's testimony is not essential to support a conviction. It is not necessary to determine in the instant case whether corroboration as to the principal fact is essential. The trial court did not so instruct, but said: '* * * the testimony of the prosecutrix must be corroborated by other evidence,' and then gave illustrations of what would constitute such corroborative evidence. We do not follow the argument of counsel for defendants that the mere proof of complaint by prosecutrix rendered unnecessary any proof of force. Elsewhere the trial court defined forcible rape, and the resistance necessary to be made by the femals (Instructions 4 and 5 1/2). All the instructions must be considered as a whole, and as is attempted here, an assignment predicated on an isolated sentence, which, standing alone, might be misleading, must fail, for no one instruction, or portion of an instruction, may be considered by itself, and separate and apart from all the other instructions. Porter v. People, 31 Colo. 508, 74 P. 879; Warford v. People, 43 Colo. 107, 96 P. 556; Dickens v. People, supra; Lowe v. People, 76 Colo. 603, 234 P. 169; Miller v. People, 92 Colo. 481, 22 P.2d 626. If all the instructions, taken together, correctly state the law, they are sufficient. Phenneger v. People, 85 Colo. 442, 276 P. 983. In 44 American Jurisprudence, page 952, section 82, it is stated: 'In criminal trials for rape * * * the courts are unanimous in holding that it may be shown by the testimony of the prosecuting witness, or that of other witnesses, that the prosecutrix made complaint of the outrage soon after its commission, for the purpose of corroborating the testimony of the prosecutrix * * *.' Point No. 2 is not well taken.

Point No. 3. Instruction No. 6, alleged to be erroneous, reads: 'It a reasonable person under like circumstances confronting the prosecutrix at the time of the alleged commission of the crimes with which the defendants stand charged, would have been afraid to resist, or if to a reasonable person, under like circumstances, resistance would have been useless, then and in that case Lottie McDonald would be excused for any failure she may have made in her resistance, if you find she did resist, providing the act, or acts, of sexual intercourse involved in these cases was accomplished by either, or both of the defendants over her objecting and against her protest.' The objections of defendants to this instruction are twofold: First, that it allows a conviction on the charge of forcible rape without any proof of force, and second, that it allows conviction in this...