Fitzpatrick v. People
| Citation | 412 P.2d 893,159 Colo. 485 |
| Decision Date | 04 April 1966 |
| Docket Number | No. 21383,21383 |
| Parties | Earl Eugene FITZPATRICK, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error. |
| Court | Supreme Court of Colorado |
John F. McGrath, Pueblo, for plaintiff in error.
Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., John E. Bush, Asst. Atty. Gen., George H. Sibley, Sp. Asst. Atty. Gen., Denver, for defendant in error.
The plaintiff in error will be referred to as the defendant. An information was filed in the district court of Pueblo county in which he was accused in separate counts of statutory rape and taking indecent liberties with the fourteen year old niece of his wife. Upon trial to a jury he was found guilty of statutory rape as charged in the first count of the information. The second count, indecent liberties, was dismissed. Judgment entered on the verdict and the defendant is here on writ of error seeking reversal of that judgment.
The evidence introduced upon the trial abundantly supported the verdict of the jury. As grounds for reversal of the judgment it is argued that there was not sufficient proof that the crime was committed in Pueblo county; and that the trial court should have instructed the jury that if there was a reasonable doubt as to whether it took place in Pueblo county the verdict should be 'not guilty.' It is also argued that the trial court erred in permitting the victim and one, John Aragon, to testify concerning a statement made by the defendant's wife which was direted to the defendant while the offense was being committed by him.
A very brief reference to the facts as shown by the evidence offered by the people will show the setting out of which these arguments arise. As already indicated, the victim of the rape was a fourteen-year old girl, the niece of defendant's wife. The defendant was forty-two years old, the father of two small children who were asleep in the back 'wagon' portion of the station wagon in which the offense took place. Other persons in the car were the defendant's wife, who was about eight months pregnant, and John Aragon a sixteen-year old nephew of the wife. At the defendant's request the wife had asked her sister, mother of the victim, to permit the girl to live temporarily at their home to help her during her pregnancy and she accordingly came to live with them on June 2, 1963. In the early evening of June 14, the party set out for Florence from Rocky Ford via Pueblo where John Aragon lived, he being the son of another sister of the defendant's wife. The testimony of Aragon was that, prior to leaving, the defendant had been drinking and that, because of his reckless driving (which the defendant testified was due to an injured hand), he asked to drive when they reached Fowler. There the defendant requested his wife to buy a bottle of wine, which she did. Thereupon the defendant moved into the back seat with the girl and Aragon took over the driving. He drove thereafter to Pueblo. The town of Fowler is two or three miles from the county line between Otero and Pueblo counties. At Pueblo Aragon stopped near his home and, at the defendant's request to 'get lost,' hastily left the car and went to a neighbor's house to telephone the police. The defendant then took over the driving and while the car was moving slowly the girl abandoned the car in hysterical condition and ran to the home...
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...and offered to prove the truth of the matter asserted. 1 E. g., Dolan v. People, 168 Colo. 19, 449 P.2d 828 (1969); Fitzpatrick v. People, 159 Colo. 485, 412 P.2d 893 (1966); Abeyta v. Denver, 132 Colo. 472, 289 P.2d 918 (1955); Martinez v. People, 55 Colo. 51, 132 P. 64 (1913); Denver City......
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