Lewis v. People, 16444
| Decision Date | 25 June 1951 |
| Docket Number | No. 16444,16444 |
| Citation | 124 Colo. 62,235 P.2d 348 |
| Parties | LEWIS v. PEOPLE |
| Court | Colorado Supreme Court |
Richard H. Shaw, Denver, for plaintiff in error.
John W. Metzger, Atty. Gen., Bert M. Keating, Dist. Atty., Second Judicial District, William E. Doyle, Chief Deputy Dist. Atty., Denver, for defendant in error.
We will hereinafter refer to plaintiff in error as defendant.
An information in six counts was filed in the district court of the City and County of Denver, in which defendant was charged in the first four counts with offences under the so-called indecent liberties statute. In the fifth and sixth counts defendant was charged with having exhibited and published obscene and lewd photographs and drawings. The last two counts of the information were quashed by the trial court on motion of defendant's attorney upon the ground that they were improperly joined in the information relating to the alleged indecent liberties.
The charges as submitted to the jury were as follows:
First count. '* * * Robert Lewis, who was then and there a male person over the age of fourteen years, did unlawfully and feloniously assault a child, to-wit: * * * who was then and there under the age of sixteen years, and did unlawfully and feloniously take indecent and improper liberties with the person of such child; * * *'
Second count. '* * * Robert Lewis, who was then and there a male person over the age of fourteen years, did unlawfully and feloniously entice, allure and persuade a child, to-wit: * * * who was then and there under the age of sixteen years, into a room, office or other place for the purpose of taking immodest, improper, immoral and indecent liberties with the person of such child; * * *'
Third count. '* * * Robert Lewis, who was then and there a male person over the age of fourteen years, did unlawfully and feloniously take immodest, improper, immoral and indecent liberties with the person of a child, to-wit: * * * who was then and there under the age of sixteen years; * * *'
Fourth count. '* * * Robert Lewis, who was then and there a male person over the age of fourteen years, did then and there unlawfully and feloniously attempt to take immodest, improper and immoral and indecent liberties with the person of a child, to-wit: * * * who was then and there under the age of sixteen years; * * *'
The jury returned verdicts on each count of the information. Defendant was found not guilty as charged in the first, second and third counts, but was found guilty of the charge contained in the fourth count. The trial consumed several days, the record contains 1,647 folios and approximately 600 pages of typewritten matter. The district attorney, over the strenuous objection of counsel for defendant, offered in evidence approximately fifty photographs depicting lewd and obscene acts of sexual perversion. Numerous penciled sketches and drawings depicting homosexual acts of a highly depraved and indecent character also were admitted in evidence over the strenuous objection of defendant's attorney. All of these exhibits were found in the residence of defendant, and there was some testimony that they were shown to the prosecuting witness at various times during the evening of October 30, 1948, and the offence of which complaint is made is alleged to have taken place at about midnight on said date. The trial court admitted these photographs in evidence upon the theory that they constituted an inducement and were designed and intended to break down any resistance which the victim of the alleged indecent liberties might otherwise have had to any advances which defendant might have made. We find it unnecessary to determine whether error was committed in the admission of these exhibits.
This evidence relating to the taking of indecent liberties is very short and consists of not more than five folios and only two typewritten pages of the reporter's transcript. It was given by the prosecuting witness, a boy of the age of fourteen years. Since the defendant denied without qualification all of this testimony which tended to establish the charges relating to indecent liberties, and since by the verdict of the jury it found defendant not guilty of the offences charged in the first three counts of the information, it becomes important to examine carefully the testimony, to determine whether the verdicts of not guilty, returned by the jury, of necessity disposed of the controversy. Accordingly we set forth this testimony in detail:
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