Magwire v. People

• Decision Date: 06 April 1925
• Docket Number: 11029.
• Parties: MAGWIRE v. PEOPLE.
• Court: Colorado Supreme Court

235 P. 339

77 Colo. 149

MAGWIRE v. PEOPLE.

No. 11029.

Supreme Court of Colorado, En Banc.

April 6, 1925

Error to District Court, Cheyenne County; Wilbur M. Alter, Judge.

Floyd Magwire was convicted of rape, and he brings error.

Reversed.

Thomas Ward, Jr., of Denver, for plaintiff in error.

Wayne C. Williams, Atty. Gen., Harold C. Thompson, Asst. Atty Gen., W. L. Boatright, Atty. Gen., and Jean Breitenstein Asst. Atty. Gen., for the People.

BURKE J.

Plaintiff in error, hereinafter referred to as defendant, prosecutes this writ to review a judgment sentencing him to the penitentiary for a period of seven to nine years on a verdict of guilty of rape.

But four alleged errors need be considered: (1) The insufficiency of the evidence; (2) the refusal to give defendant's instruction No. 5; (3) the refusal to give defendant's instruction No. 6; (4) the giving of instruction No. 8 1/2.

1. The information charged a common-law rape. The evidence, as disclosed by the record, is far from satisfactory. Defendant was 23 years old and prosecutrix 22. They had been acquainted for some 13 years, had gone to school together, and their families were friendly. The time of the alleged rape was between 1 and 2 a. m. July 5, 1923, and the place in the courthouse yard in Cheyenne Wells, within 40 feet of a public street, near a residence occupied by four people, and within calling distance of the home of prosecutrix, then occupied by her mother, and in which lights were burning and a window was up. While the crime was being perpetrated two automobiles passed the street. One of these carried two brothers of the victim and was seen and recognized by her. She says defendant employed force and that she resisted and repeatedly cried for help. No one heard such cries or saw the couple in the courthouse yard. Prosecutrix was normal in every way and does not claim to have been put in fear. Defendant seems to have had no physical advantage of her save such as is suggested by sex and age. His right hand was at the time injured and bandaged. There was a notable and unexplained absence of such evidence on body and clothing as usually tells the story of such an encounter. The intercourse was admitted by defendant and alleged by him to have been by consent. The positive evidence of the commission of the crime charged, the violence used by defendant, and the vigorous resistance of his victim, all detailed by her and contradicted by defendant and by the significant facts above set forth, and many others, may well be disposed of in the singularly applicable language of Mr. Justice Wood:

'But, however unsatisfactory, under the rule which has so long been adhered to by this court, we cannot set aside the verdict [because unsupported]. For to do so would devolve upon us the duty of passing upon the credibility of the witnesses and determining the weight of the evidence. That was peculiarly the province of the jury, and, as the learned circuit judge, who say and heard the prosecutrix and all the other witnesses testify, refused to set aside the verdict, we will not disturb it, because, as improbable as it may be, * * * it was still a question for the jury, and not for this court, to say whether her testimony was true.' Maxey v. State, 66 Ark. 523, 525, 52 S.W. 2, 6.

2. Defendant's requested instruction No. 5 reads:

'The court instructs the jury that the woman must resist to the point of being overpowered by actual force, or of inability from loss of strength longer to resist. She must resist in every manner which appears feasible, by striking, biting, or kicking; by resort to any weapon which may be available; and must continue her struggles until exhausted or overpowered.'

This is the old rule of 'resistance to the uttermost,' repudiated by the more modern and enlightened authorities, which require only such resistance as age, mental and physical condition, and surrounding facts and circumstances, demand to make opposition reasonably manifest. 33 Cyc. 1506. Indeed, such facts and circumstances may obviate the necessity of proof of physical resistance, as where they show fear making it impossible, or conditions making it useless. State v. Long, 72 Conn. 39, 43 A. 493. The instruction was properly refused.

3. Defendant's instruction No. 6 states, in substance, the caution of Lord Hale. Its refusal was not error.

'No case has ever been reversed, to our knowledge, because of failure to give such cautionary instructions.' State v. Trusty, 122 Iowa 82, 87, 97 N.W. 989, 991.

4. Instruction No. 8 1/2 given by the court reads:

'The court instructs the jury that it is not the law of this state, that a woman assaulted with intent to commit rape upon her is required to resist by all violent means within her power. The law only requires that the case be one in which the woman did not consent. Her resistance must not be mere pretense, but must be in good faith. The law does not require that the woman shall do more than her age, strength, and all attendant circumstances make it reasonable for her to do in order to manifest her opposition. The question of resistance is a question of fact for you to determine and find, and not a question this court can decide.'

This instruction is taken verbatim from Rahke v. State, 168 Ind 615, 81 N.E. 584, where it was approved. We have been unable to find that portion of it hereinafter pointed out as objectionable considered in any other case or approved as an instruction in any text-book. Even in the Rahke Case it must be observed that the judgment had already been reversed for fatal error in two preceding instructions which assuming to state all the essential elements of the offense, had failed to charge that the proof must establish an assault with intent to commit rape on the prosecutrix 'forcibly and against her will.' Furthermore, the court there only held the instruction good as against the...