Efsiever v. People, 14378.
| Decision Date | 18 September 1939 |
| Docket Number | 14378. |
| Citation | 96 P.2d 8,105 Colo. 88 |
| Parties | EFSIEVER v. PEOPLE. |
| Court | Colorado Supreme Court |
Rehearing Denied Nov. 13, 1939.
Error to District Court, City and County of Denver; Henry S Lindsley, Judge.
George Efsiever was convicted of statutory rape, and he brings error.
Affirmed.
Isaac Mellman, of Denver, for plaintiff in error.
Byron G. Rogers, Atty. Gen., and Reid Williams, Asst. Atty. Gen for defendant in error.
The defendant was convicted of statutory rape.
The testimony of both the defendant and the prosecutrix shows beyond all question that he had sexual intercourse with her on the night of September 15, 1936, a few hours after he had met her for the first time. It occurred in his own room at the hotel where he was living and of which he was manager. The prosecutrix testified on the witness stand that she was born on May 15, 1920 though she had told the defendant she was twenty-two years old. He himself testified that later 'he became suspicious' and that she then told him she was twenty. Her testimony at the trial was neither shaken by cross-examination nor contradicted by other evidence. If she was actually under eighteen at the time of the act charged he was clearly guilty whether he did or did not know that she was under the statutory age of consent, unless they were then and there husband and wife.
At the close of the people's case the defendant made a motion for a directed verdict of not guilty. The motion was based solely on the ground that he and she were common-law husband and wife. There is in the record no competent evidence tending to prove a common-law marriage as existing at the time of the aforesaid act on which the conviction was had. The motion was therefore properly overruled.
The defendant's present attorney--who, be it said, took no part in the trial below--further argues, however, that the district court committed prejudicial error by admitting over the defendant's objection certain evidence tending to show that a week or two after first meeting the prosecutrix the defendant proposed and encouraged a system of illicit intercourse for money with other men at hotels through the intervention of bellboys whose names she claimed he supplied to her for the purpose of contacting the men with such misconduct in view. This evidence is now assailed as relating to 'other offenses' than the one charged.
An all-sufficient answer is that no attempt was made to assign any error in this connection. Supreme Court Rule 32 reads as follows: 'Plaintiff in error shall assign errors in writing at the time of filing the record and each error shall be separately alleged and particularly specified; Provided, That when errors are assigned upon exceptions to the ruling of the court in the admission or rejection of evidence, which go to the same point, it shall be sufficient to refer to the folio numbers of the record where such rulings and exceptions appear without particularly specifying the evidence admitted or rejected. * * *'
Interpreting the foregoing rule we have said: Cunningham v. Snelling, 91 Colo. 454, 456, 15 P.2d 713. See also: Buchanan v. Burgess, 99 Colo. 307, 62 P.2d 465; Wilson v. Giem, 90 Colo. 27, 5 P.2d 880; Shepherd v. People, 75 Colo. 251, 225 P. 221; Patton v. People, 74 Colo. 322, 221 P. 1086. True, Supreme Court Rule 35 says: 'Counsel will be confined to a discussion of the errors stated, but the court may, in its discretion, notice any other error appearing of record.'
Under the last quoted rule this court has on rare occasions exercised the right to notice errors not properly covered by assignments of error, in cases where the trial court's jurisdiction was lacking. Instances are found in Ikeler v. Ikeler, 84 Colo. 429, 271 P. 193; Baker v. Denver Tramway Co., 72 Colo. 233, 210 P. 845, 29 A.L.R. 1453; Universal Ins. Co. v. Tenery, 96 Colo. 10, 39 P.2d 776. In Reppin v. People, 95 Colo. 192, 34 P.2d 71, mentioned in the dissenting opinion, the assignment of error was not lacking.
This discretionary power has never been exercised to our knowledge where the record in a criminal case reveals that the defendant has unconditionally admitted the act which constitutes the crime of which he has been convicted.
However aside from the fatal omission of the assignment of error, there would be at least two reasons why counsel's argument in this instance must fail. First, the evidence in regard to the so-called 'other offenses' came in connection with cross-examination of the prosecutrix conducted by defendant's counsel, who introduced an exhibit in the form of a bank book as tending to prove a common-law marriage, whereas the evidence complained of tended to explain the exhibit in a way which negatived such marriage altogether. The defendant cannot complain of a trial situation which he has himself brought about. Secondly, the...
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Fresquez v. People
...Moreover, it has been said that a defendant cannot complain of a trial situation which he has himself brought about. Efsiever v. People, 105 Colo. 88, 96 P.2d 8; Phenneger v. People, 85 Colo. 442, 276 P. 983. V. The defendant next assigns error to the failure of the trial court to give a sp......
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People v. Suazo
...liable. People v. Green, 183 Colo. 25, 514 P.2d 769 (1973); see also People v. Grenemyer, 745 P.2d 1027 (Colo.1987); Efsiever v. People, 105 Colo. 88, 96 P.2d 8 (1939). Compare § 18-3-406(1), C.R.S. (1986 Repl.Vol. 8B) (In the context of sexual assault, "[i]f the criminality of conduct depe......
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Roybal v. People, 23988
... ... Stilley v. People, 160 Colo. 161, 110 494; Cowles v. People, 107 Colo. 161, 110 P.2d 249; Efsiever v. People, 105 Colo. 88, 96 P.2d 8. This evidence apparently was introduced as a part of the defense strategy. A defendant will not be heard to ... ...
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People v. Green
...was not asserted in the trial. That it was not available as a defense is manifest by its rejection by this court in Efsiever v. People, 105 Colo. 88, 96 P.2d 8 (1939). The basis for our rejection then, as now, was that the legislature was the proper forum for the creation of exceptions to s......