Gilmore v. People
| Decision Date | 06 April 1970 |
| Docket Number | No. 23460,23460 |
| Citation | 467 P.2d 828,171 Colo. 358 |
| Parties | Gary Allen GILMORE, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error. |
| Court | Colorado Supreme Court |
Benton S. Clark, Jr., Colorado Springs, for plaintiff in error.
Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., George E. DeRoos, Asst. Gen., for defendant in error.
Gary Allen Gilmore, hereinafter referred to as the defendant, was convicted by a jury of simple assault (C.R.S.1963, 40--2--33) and unnatural carnal copulation (C.R.S.1963, 40--2--31). The defendant was thereafter sentenced to six months in the county jail on the assault charge and to a term in the state penitentiary for his conviction on the charge of unnatural carnal copulation. By the present writ of error the defendant seeks reversal of his conviction on the charge of unnatural carnal copulation.
The defendant was charged with committing unnatural carnal copulation per os in and upon one Mary E. by placing his mouth on the vagina of Mary E. Upon trial Mary E. testified concerning the assault made upon her by the defendant and without going into detail her testimony supported the material allegations in this particular count of the information.
Perhaps the basic reason advanced here by the defendant as to why his conviction should be reversed is that C.R.S.1963, 40--2--31 is claimed to be unconstitutionally vague and, alternatively, that the statute does not include cunnilingus.
C.R.S.1963, 40--2--31 reads as follows:
'Crime against nature.--(1) the infamous crime against nature, with man or beast, Or any unnatural carnal copulation committed per anus or per os or in any other way whatsoever shall subject the offender to be imprisoned in the state penitentiary for a term of not less than one year and not more than fourteen years.' (Emphasis added.)
In Koontz v. People, 82 Colo. 589, 263 P. 19 it was held that an 'insertion per os did not constitute sodomy, the infamous crime against nature.' The statute involved in the Koontz case was subsequently amended to include the underlined language in the statute set forth immediately above. By this amendment it would certainly seem to be the legislative intent that the statute be broadened and made more all-inclusive in scope. In line with such legislative intent, we hold that cunnilingus comes well within the conduct denounced by C.R.S.1963, 40--2--31. In support of our holding see, for example, People v. Hunter, 158 Cal.App.2d 500, 322 P.2d 942 and People v. Harris, 108 Cal.App.2d 84, 238 P.2d 158, where it was held that the defendant was guilty of committing the offense of copulating by mouth when he placed his mouth on the sexual organ of the prosecutrix.
Nor do we deem the particular part of the statute with which we are here concerned, namely unnatural carnal copulation per os, to be unconstitutionally vague. On the contrary the statute in its amended form is most definite in nature. And certainly the information, the material portions of which are set forth above, did apprise the defendant in very understandable English of the precise nature of his alleged misconduct. In support of this determination see, for example, State v. Bonanno, 245 La. 1117, 163 So.2d 72 where the sodomy statute of Louisiana was held not to be unconstitutionally vague.
The defendant also urges as ground for reversal the reception into evidence, over objection, of certain statements allegedly made by the defendant to the witness Fuller, a Federal probation officer. In this regard it is asserted that Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 dictates a reversal. A bit of detail is necessary in order to place this matter in focus. Shortly after the assault, which occurred about 1.45 p.m., Mary E. was shown by the police five photographs of different persons answering the general description given by Mary E. of her assailant. She identified the defendant's photograph as being that of her assailant. On the same day police took the defendant into custody at about 4.45 p.m., as he was returning to his home. En route to the police station the arresting officers advised the defendant of his so-called Miranda rights. At the police station the defendant made inquiry as to the reason for his arrest. When informed that it was in connection with the assault of Mary E. the defendant denied all knowledge of any such assault.
The defendant at the time was either on parole or probation in connection with a federal conviction on a felony charge, and the defendant's probation officer was one John Fuller. The fact that the defendant had suffered a prior felony conviction was carefully avoided by the district attorney and was in nowise brought to the attention of the jury. Nor was the nature of Fuller's employment brought out by the district attorney. However, Fuller was called as a witness by the People. Prior thereto another witness for the People, Officer Gieck, testified that soon after the defendant had been brought to the police station--at a time shortly after he had been advised of his Miranda rights and had denied any knowledge or participation in the assault on Mary E.--the defendant informed the officer that he (the defendant) wanted to speak to John Fuller.
Fuller testified that he arrived at the police station on the day in question about 6.25 p.m. He was taken immediately by officer Gieck and a fellow police officer to an interrogation room. The defendant was either already in the particular room or was brought there at once. Apparently brief conversation ensued during which the defendant...
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ROUNDTREE v. U.S.
...is guilty of violating the [sodomy] statute when he has placed his mouth upon the genital organ of another"); Gilmore v. People, 171 Colo. 358, 360, 467 P.2d 828, 828 (1970) ("placing . . . mouth on the vagina" of victim); Carter v. State, 122 Ga. App. 21, 23, 176 S.E.2d 238, 240 (1970) ("a......
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...87 S.D. 43, 202 N.W.2d 132 (1972); People v. Ronald W., 24 N.Y.2d 732, 302 N.Y.S.2d 260, 249 N.E.2d 882 (1969); Gilmore v. People, 171 Colo. 358, 467 P.2d 828 (1970); Nettles v. State, 248 So.2d 259 (Fla.1971). But see Croteau v. State, 334 So.2d 577 As the Fifth Circuit Court of Appeals ob......
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Narrative and jurisprudence in state courts: the example of constitutional challenges to sex conduct regulation.
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